[Federal Register Volume 67, Number 121 (Monday, June 24, 2002)]
[Proposed Rules]
[Pages 42644-42686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12963]
[[Page 42643]]
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Part III
Environmental Protection Agency
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40 CFR Parts 122 and 450
Effluent Limitation Guidelines and New Source Performance Standards for
the Construction and Development Category; Proposed Rule
Federal Register / Vol. 67, No. 121 / Monday, June 24, 2002 /
Proposed Rules
[[Page 42644]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 450
[FRL-7217-1]
RIN 2040-AD42
Effluent Limitation Guidelines and New Source Performance
Standards for the Construction and Development Category; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a range of options to address storm water
discharges from construction sites. As one option, EPA is proposing
technology-based effluent limitation guidelines and standards (ELGs)
for storm water discharges from construction sites required to obtain
National Pollutant Discharge Elimination System (NPDES) permits. As
another option, EPA is proposing not to establish ELGs for storm water
discharges from those sites, but to allow technology-based permit
requirements to continue to be established based upon the best
professional judgment of the permit authority A third option would
establish inspection and certification requirements that would be
incorporated into the storm water permits issued by EPA and States,
with other permit requirements based on the best professional judgment
of the permit authority. This proposal, if implemented, is expected to
significantly reduce the amount of sediment discharged from
construction sites. The deposition of sediment from construction site
runoff has contributed to the loss of capacity in small streams, lakes,
and reservoirs, leading to the necessity for mitigation efforts such as
dredging or replacement. Today's document also requests comment and
information on several variations on these options and several other
significant aspects of the proposal, such as technologies, costs, and
economics.
DATES: EPA must receive comments on the proposal by October 22, 2002.
EPA will conduct public meetings for this proposed rule on July 9,
2002; July 23, 2002; July 30, 2002 and additional dates to be announced
later.
ADDRESSES: Submit written comments to: Comment Clerk, Water Docket
(4101), US EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. (See
next paragraph regarding addresses for hand deliveries.) Please refer
to Docket No. W-02-06. EPA requests an original and three copies of
your comments and enclosures (including references). Commenters who
want EPA to acknowledge receipt of their comments should enclose a
self-addressed, stamped envelope. No facsimiles (faxes) will be
accepted. Comments may also be sent via e-mail to [email protected].
For additional information on how to submit electronic comments see
``SUPPLEMENTARY INFORMATION, How to Submit Comments.''
EPA will be holding public meetings on today's proposal on five
separate dates. The first three meetings are listed below; EPA will
announce the remaining meetings in a subsequent Federal Register
document and on its website at http://www.epa.gov/waterscience/guide/construction/. No registration is required for these meetings. Seating
will be provided on a first-come, first-served basis.
Tuesday, July 9, 2002, 9 a.m.-noon, Hyatt Regency Hotel--San
Francisco Airport, 1333 Bayshore Highway, Burlingame, CA, Phone 650-
347-1234.
Tuesday, July 23, 2002, 9 a.m.-noon, Wyndham Garden Hotel--
Dallas Park Central, 8051 LBJ Freeway (I-635), Dallas, TX, Phone 972-
680-3000.
Tuesday, July 30, 2002, 9 a.m.-noon, Holiday Inn Chicago--
Elmhurst, 624 N. York Rd., Elmhurst, IL, Phone 630-279-1100.
Meeting Access: If you need special accommodations at this meeting,
including wheelchair access, you should contact the Eastern Research
Group Conference Registration Line at 781-674-7374, at least five
business days before the meeting so that appropriate arrangements can
be made. See ``Public Meeting Information'' below for additional
meeting details.
EPA established the public record for this proposed rulemaking
under docket number W-02-06. The record is currently located in the
Water Docket, Room EB 57, Waterside Mall, 401 M Street, SW.,
Washington, DC. The record is available for inspection from 9 a.m. to 4
p.m., Monday through Friday, excluding legal holidays. For access to
the docket materials, call 202-260-3027 to schedule an appointment. You
may have to pay a reasonable fee for copying. Please note that several
of the support documents are available at no charge on EPA's website;
see ``Supporting Documentation'' below. The Water Docket will be moving
to a new office location in August 2002. For hand deliveries of
comments through August, submit to the above address. Please call the
above number for details on the new location.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
today's proposed rule, contact Mr. Jesse Pritts at 202-566-1038 or Mr.
Eric Strassler at 202-566-1026. For economic information contact Mr.
George Denning at 202-566-1067.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action include:
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North American
Industry
Category Examples of Classification
regulated entities System (NAICS)
code
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Industry.......................... Construction site operators
disturbing 1 or more acres of land
and performing the following
activities:
Building, Developing 233
and General
Contracting.
Heavy Construction.. 234
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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 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.
How To Submit Comments
The public may submit comments in written or electronic form. (See
the ADDRESSES section above.) Electronic comments must be identified by
the docket number W-02-06 and must be submitted as a WordPerfect, MS
Word or ASCII text file, avoiding the use of special characters and any
form of encryption. EPA requests that any graphics included in
electronic comments also be provided in hard-copy form. EPA also will
accept comments and data on disks in the aforementioned file formats.
Electronic comments received on this notice may be filed online at many
Federal
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Depository Libraries. No confidential business information (CBI) should
be sent by e-mail.
Public Meeting Information
See the ADDRESSES section of this document for dates and locations
of public meetings. During the meetings, EPA will present information
on the applicability of the proposed regulation, the technology options
selected as the basis for the proposed limitations and standards, and
the compliance costs and pollutant reductions. EPA will also allow time
for questions and answers during these sessions. These meetings are not
public hearings for the purpose of obtaining comment on the proposal.
EPA will not generate a transcript of the meetings. The public may
submit comments in writing or electronically as described above.
Supporting Documentation
Several key documents support the proposed regulations:
1. ``Development Document for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-821-R-
02-007. (``Development Document'') This document presents EPA's
methodology and technical conclusions concerning the C&D category.
2. ``Economic Analysis of Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-EPA-821-
R-02-008. (``Economic Analysis'') This document presents the
methodology employed to assess economic and environmental impacts of
the proposed rule and the results of the analysis.
3. ``Environmental Assessment for Proposed Effluent Guidelines and
Standards for the Construction and Development Category,'' EPA-EPA-821-
R-02-009. (``Environmental Assessment'')
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 website for
the C&D rule, http://www.epa.gov/waterscience/guide/construction.
Overview
The preamble describes the terms, acronyms, and abbreviations used
in this notice; the background documents that support these proposed
regulations; the legal authority of these rules; a summary of the
proposal; background information; and the technical and economic
methodologies used by the Agency to develop these regulations. This
preamble also solicits comment and data on specific areas of interest.
Table of Contents
I. Legal Authority
II. Purpose & Summary of Proposed Rule
III. Background
A. Clean Water Act
B. NPDES Storm Water Permit Program
1. Storm Water Permits for Construction: General and Individual
a. General Permits
b. EPA Construction General Permit
c. State Construction General Permits
d. Individual Permits
2. Municipal Storm Water Permits and Local Government Regulation
of Construction Activity
a. NPDES Requirements
b. EPA Guidance to Municipalities
C. Other State and Local Storm Water Requirements
D. Effluent Guidelines and Standards Program
1. Best Practicable Control Technology Currently Available (BPT)
2. Best Available Technology Economically Achievable (BAT)
3. Best Conventional Pollutant Control Technology (BCT)
4. New Source Performance Standards (NSPS)
5. Pretreatment Standards
6. Effluent Guidelines Plan and Consent Decree
E. Pollution Prevention Act
IV. Scope of Proposal
V. Summary of Data Collection Activities
A. Existing Data Sources
B. Storm Water Discharge Sampling and Site Visits
C. Industry-Supplied Data
D. Summary of Public Participation
VI. Industry Profile
A. Affected Industry Sectors
B. Construction and Development Activities Affecting Water
Quality
1. Planning and Site Design
2. Clearing, Excavating and Grading
3. Erosion and Sediment Control
4. Control of Other Pollutants
5. Final Stabilization and Long-Term Storm Water Management
VII. Storm Water Discharge Characteristics
VIII. Description of Available Technologies
A. Introduction
B. Erosion and Sediment Controls and Other Site Management
Practices
1. Goals
2. Major Categories of Best Management Practices
C. Long-Term Storm Water Management Control
1. Goals
2. Major Categories of Best Management Practices
IX. Development of Effluent Limitation Guidelines and Standards
A. Industry Subcategorization
1. Subcategorization by Site Size
2. Subcategorization by Industry
3. Subcategorization by Builder/Developer Size
4. Subcategorization Based on Hydrology, Soil Loss Potential or
Other Geographic Factors
5. Subcategorization Based on Past Land Use
B. Regulatory Options Considered
1. Overview of Regulatory Options: Erosion and Sediment Controls
and Other Temporary BMPs
2. Overview of Regulatory Options: Certification and Inspection
3. Overview of Regulatory Options: Continued Reliance on State
and Local ESC Programs
4. Overview of Regulatory Options Considered: Long-term Storm
Water Management
X. Determination of Best Practicable Control Technology Currently
Available (BPT), Best Conventional Pollutant Control Technology
(BCT), Best Available Technology Economically Achievable (BAT), and
New Source Performance Standards (NSPS)
A. Rationale for Selected BPT Option
B. BCT Determination
1. July 9, 1986 BCT Methodology
2. Consideration of BCT Option
C. BAT and NSPS
D. Summary of Provisions in Today's Proposed Rule
1. General Provisions and SWPPP Preparation
2. Design and Installation of Erosion and Sediment Controls
3. Inspection and Certification Provisions
4. Maintenance
XI. Methodology for Estimating Costs
A. Costs to the Construction and Development Category
B. Costs to Permit Authorities
XII. Economic Impact and Social Cost Analysis
A. Introduction
B. Description of Economic Activity
C. Method for Estimating Economic Impacts
1. Model Project Analysis
2. Model Firm Analysis
3. Housing Market Impacts
4. Impacts on the National Economy
D. Results
1. Firm-Level Impacts
2. Impacts on Governments
3. Community-Level Impacts
4. Foreign Trade Impacts
5. Impacts on New Facilities
6. Social Costs
7. Small Business Impacts
XIII. Cost-Effectiveness Analysis
XIV. Non-Water Quality Environmental Impacts
A. Air Pollution
B. Solid Waste
C. Energy Usage
D. By-Products from BMPs
XV. Environmental Assessment
A. Introduction
B. Methodology for Estimating Environmental Impacts and
Pollutant Reductions
C. Potential Loading Reductions of Proposed Options
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XVI. Benefit Analysis
A. Benefits Categories Estimated
B. Quantification of Benefits
XVII. Benefit-Cost Comparison
XVIII. Regulatory Implementation
A. Compliance Dates
B. Relationship of Effluent Guidelines to NPDES Permits
C. Upset and Bypass Provisions
D. Variances and Waivers
1. Fundamentally Different Factors Variance
2. Low Soil Loss Potential Waiver
E. Other Clean Water Act Requirements
XIX. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Paperwork Reduction Act
B. Unfunded Mandates Reform Act (UMRA)
C. Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
1. Introduction
2. Summary of Panel Recommendations
D. Executive Order 12866: Regulatory Planning and Review
E. Executive Order 13132: Federalism
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. National Technology Transfer and Advancement Act
I. Plain Language Directive
J. Executive Order 13211 (Energy Effects)
XX. Solicitation of Data and Comments
A. Specific Solicitation of Comments and Data
B. General Solicitation of Comment
I. Legal Authority
EPA is proposing this regulation under the authorities of sections
301, 304, 306, 308, 402 and 501 of the Clean Water Act (CWA), 33 U.S.C.
1311, 1314, 1316, 1318, 1342 and 1361 and pursuant to the Pollution
Prevention Act of 1990, 42 U.S.C. 13101 et seq.
II. Purpose and Summary of Proposed Rule
Construction and development (C&D) activity affecting water quality
typically involves site selection and planning, and land-disturbing
tasks during construction such as clearing, excavating and grading.
Disturbed soil, if not managed properly, can be easily washed off-site
during storm events. Storm water discharges generated during
construction activities can cause an array of physical, chemical and
biological impacts. Water quality impairment may result, in part,
because a number of pollutants are preferentially absorbed onto mineral
or organic particles found in fine sediment. The interconnected process
of erosion (detachment of the soil particles), sediment transport, and
delivery is the primary pathway for introducing pollutants from
construction sites into aquatic systems.
A primary concern at most construction 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 this material to water bodies. Although streams and rivers
naturally carry sediment loads, erosion from construction sites and
runoff from developed areas can elevate these loads to levels above
those in undisturbed watersheds.
Existing national storm water regulations require construction site
operators to implement controls to manage construction site runoff, but
do not require any specific level of control. One of today's proposed
approaches (Option 2) would establish effluent limitation guidelines in
the form of minimum standards for design and implementation of erosion
and sediment controls used during the active phase of construction.
This approach would cover sites with five or more acres of disturbed
land, and would establish minimum requirements for conducting site
inspections and providing certification as to the design and completion
of various aspects of those controls.
EPA acknowledges that many State and local governments have
existing standards for temporary controls. Today's proposed effluent
guidelines are intended to work in concert with existing requirements
where equivalent, and would not supercede more stringent requirements.
In addition, EPA is proposing two alternatives that would not set
national standards for control of storm water discharges from
construction sites subject to permit requirements under section 402 of
the CWA. Both of these approaches would rely instead on a combination
of existing State and local requirements and additional requirements
based on the best professional judgement (BPJ) of the permitting
authority. Under one of these alternatives (Option 1), the proposal
would establish minimum requirements for conducting site inspections
and providing certification as to design and completion of controls
required by the permit authority in its NPDES permit. These
requirements are similar to the inspection and certification
requirements in Option 2. Existing compliance determination practices
for construction site storm water controls rely principally on site
inspections by local governments, however, enforcement efforts are
reported to be uneven nationwide, largely due to limited enforcement
resources at the Federal, State and local levels. The inspection and
certification requirements in today's proposed rule could strengthen
the current permit program.
Under another alternative (Option 3), no new requirements would be
established under this option. Both the control requirements and the
certification requirements would be left to the best professional
judgement of the permitting authority in order to allow them to be
better tailored to local conditions. These proposed options are
discussed in more detail in sections IX and X of today's notice. At
this time, EPA is co-proposing all three options because it sees
advantages to each.
III. Background
A. Clean Water Act
Congress adopted the Clean Water Act (CWA) 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 prohibits the discharge of pollutants into navigable
waters except in compliance with the statute. CWA section 402 requires
``point source'' discharges to obtain a permit under the National
Pollutant Discharge Elimination System (NPDES). These permits are
issued by EPA regional offices or authorized State agencies.
Following enactment of the Federal Water Pollution Control
Amendments of 1972 (Public Law 92-500, October 18, 1972), EPA and the
States issued NPDES permits to thousands of dischargers, both
industrial (e.g. manufacturing, energy and mining facilities) and
municipal (sewage treatment plants). As required under Title III of the
Act, EPA promulgated effluent limitation guidelines and standards for
many industrial categories, and these requirements are incorporated
into the permits.
The Water Quality Act of 1987 (Public Law 100-4, February 4, 1987)
amended the CWA. The NPDES program was expanded by defining municipal
and industrial storm water discharges as point sources. Industrial
storm water dischargers, municipal separate storm sewer systems and
other storm water dischargers designated by EPA must obtain NPDES
permits pursuant to section 402(p) (33 U.S.C. 1342(p)).
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B. NPDES Storm Water Permit Program
EPA's initial storm water regulations, promulgated in 1990,
identified construction as one of several types of industrial activity
requiring an NPDES permit. These ``Phase I'' storm water regulations
require operators of large construction sites to apply for permits (40
CFR 122.26(b)(14)(x)). A large-site construction activity is one that:
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 (or is designated by the NPDES
permitting authority); and
Will discharge storm water runoff from the construction
site through a municipal separate storm sewer system (MS4) or otherwise
to waters of the United States.
The Phase II storm water rule, promulgated in 1999, generally extends
permit coverage to sites one acre or greater (40 CFR 122.26(b)(15)).
In addition to requiring permits for construction site discharges,
the NPDES regulations require permits for certain MS4s. The local
governments responsible for the MS4s must operate a storm water
management program. The local programs regulate a variety of business
activities that affect storm water runoff, including construction, and
the components of these programs are described in section III.B.2 of
today's document.
1. Storm Water Permits for Construction: General and Individual
Pursuant to the NPDES Phase I storm water regulations at 40 CFR
122.26, EPA and the States began issuing permits for storm water
discharges from large construction sites in 1992. The Phase II rule
requires that permits for smaller sites be obtained starting in 2003. A
general description of the basic requirements for the Phase I and Phase
II regulations follows.
a. General Permits. The vast majority of construction sites are
covered by general permits. EPA and States use general permits to cover
a group of similar dischargers under one permit. See 40 CFR 122.28.
General permits simplify the application process for the industry,
provide uniform requirements across covered sites, and reduce
administrative workload for the permit authorities. EPA and the States
have published documents containing the construction general permits,
along with forms and related procedures. To obtain coverage under a
general permit, the permittee--either the developer, builder or
contractor for a construction project--submits a Notice of Intent (NOI)
to the permit authority. The NOI takes the place of a lengthier
application package that generally would be used for an individual
NPDES permit. By submitting the NOI, the permittee agrees to the
conditions in the published permit. The permittee may begin land
disturbance after a specified interval (typically 48 hours) following
NOI submission unless otherwise notified or specified by the permit
authority.
b. EPA Construction General Permit. EPA's Construction General
Permit (CGP) covers construction activities in six states, the District
of Columbia, Puerto Rico, U.S. territories, and specifically designated
portions of other states such as Indian Country and Federal facilities.
The ``national'' CGP, covering all the EPA Regions except Regions 4, 5
and 6, was published on February 17, 1998 (63 FR 7898). EPA has placed
a copy of the ``national'' CGP in the docket for today's proposal.
Slightly different versions of the permit for Regions 4 and 6 were
published on April 28, 2000 (65 FR 25122) and July 6, 1998 (63 FR
36490) respectively. (EPA does not issue NPDES permits for states
within Region 5.) EPA intends to issue a revised CGP later in 2002 to
incorporate requirements promulgated in the Phase II rule.
The principal requirement in the CGP is the preparation of a storm
water pollution prevention plan (SWPPP) before submission of the NOI.
EPA's guidance manual, ``Storm Water Management for Construction
Activities: Developing Pollution Prevention Plans and Best Management
Practices,'' (EPA 832/R-92-005, October 1, 1992; available on EPA's
website at http://www.epa.gov/npdes/stormwater) describes the SWPPP
process in detail. The plan must include a description of the site,
with maps showing drainage, discharge points, and location of runoff
controls; a description of the ``best management practices'' (BMPs) \1\
used; inspection procedures and reports. A copy of the plan must be
kept on the construction site from the date of project initiation to
the date of final stabilization. Permittees do not routinely submit
plans to the permit authority, but a copy must be readily available to
authorized inspectors during normal business hours. EPA's construction
general permit does not require that specific BMPs be contained in the
SWPPP, except that temporary sediment basins shall be used on sites
with 10 or more acres disturbed at one time. Rather, the permit
describes the general areas the plan must address (e.g., minimization
of erosion, containment of sediment on the site, proper handling of
chemicals and debris, etc.) and leaves it to the operator to develop
appropriate site-specific measures to accomplish these purposes.
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\1\ The term ``best management practices'' (BMP) is mentioned in
a few sections of the Clean Water Act, and is used extensively in
EPA regulations, guidance documents, state and local government
documents, and many other technical publications. The term has a
variety of meanings within the water quality literature, and is used
in situations involving both point sources and nonpoint sources.
BMPs can be procedures for operation and maintenance of municipal or
industrial treatment plants, training courses for plant employees,
public notification procedures, or agricultural waste handling
practices, as well as both structural and non-structural techniques
for controlling storm water discharges from any source. Within the
storm water field, some publications use the term ``BMPs'' when
referring to erosion and sediment controls. To avoid confusion, in
today's document EPA is using the terms ``erosion and sediment
controls'' (ESC) and ``temporary BMPs'' to describe the temporary
controls used by construction site operators during the period of
land disturbance, and ``storm water management BMPs'' to refer to
the techniques and technologies designed and installed by operators
for long-term control of storm water discharges.
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EPA encourages multiple operators at a construction site to develop
a comprehensive SWPPP. Other requirements in the CGP include conducting
regular inspections and reporting releases of reportable quantities of
hazardous substances.
To discontinue permit coverage, an operator must 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 to
the homeowner. The permittee submits a Notice of Termination (NOT) Form
to the permit authority upon satisfying the appropriate permit
conditions described in the CGP.
c. State Construction General Permits. For the most part, the state
general permits have followed EPA's format. Some states have modified
requirements in their permits. For example, California has added
discharge monitoring requirements for sites where the receiving water
body is listed as impaired (water quality-limited) for sedimentation.
(California State Water Resources Control Board, Resolution No. 2001-
046, April 26, 2001; http://www.swrcb.ca.gov/resdec/resltn/2001/01res.html) and Georgia has added monitoring requirements for all sites
(Georgia Department of Natural Resources, Environmental Protection
Division, General NPDES Permit For Storm Water Discharges From
Construction Activities, No. GAR100000, June 12, 2000; http://
[[Page 42648]]
www.DNR.State.Ga.US/dnr/environ/techguide--files/techguide.htm).
d. Individual Permits. A permit authority may require any site to
apply for an individual permit rather than using the general permit.
The individual permit is most often used for complex projects and/or
projects located in sensitive watersheds. State storm water permit
coordinators have informed EPA that this provision has been rarely used
for construction activities.
2. Municipal Storm Water Permits and Local Government Regulation of
Construction Activity
Many local governments, as MS4 permittees, have a role in the co-
regulation of construction industries along with States and EPA, and
are responsible for overseeing long-term maintenance of storm water
management facilities. This section describes regulatory programs
operated by MS4s.
a. NPDES Requirements. The NPDES storm water regulations require
that MS4s apply for permits. In general, the Phase I rule covers MS4s
serving populations of 100,000 or more. The Phase II rule extends
coverage to most other MS4s in urbanized areas, and NPDES agencies may
designate additional MS4s outside of urbanized areas for permit
coverage based on State-specific criteria.
The regulations contemplate that each MS4 generally will operate a
local storm water management program in order to properly control
discharges into, and hence out of, its MS4. The Phase II MS4
regulations specifically anticipate a local program for regulating
storm water discharges from construction activity and managing ``post-
construction'' (long-term) runoff. Permits for Phase I MS4s, while not
specifically required by the regulations to do so, typically administer
such programs as well. See 40 CFR 122.26(d) for Phase I MS4s and 40 CFR
122.34(a) for Phase II MS4s. EPA has provided guidance to the NPDES
agencies and MS4s that recommends components and activities for a well-
operated local storm water management program.
b. EPA Guidance to Municipalities. EPA has issued several guidance
documents to 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
small MS4s as to the types of practices they could use to develop and
implement their storm water management programs. The menu includes
descriptions of BMPs that local programs can implement to reduce
impacts of storm water discharges from construction activities and
long-term runoff.
Measurable Goals Guidance (http://www.epa.gov/npdes/storm
water/measurablegoals). This document assists small MS4s in defining
performance targets for each of the six minimum measures described
above. Included in the guidance are examples of goals for BMPs to
control storm water discharges from construction activities and urban
runoff.
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 storm water discharges affected by the Phase II rule.
Fact Sheets on various storm water 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) and swales (EPA 832-F-99-006), wet
detention ponds (EPA 832-F-99-048). (All fact sheets published 1999.
Available at http://www.epa.gov/npdes/stormwater/ ; click on
``Publications.'')
C. Other State and Local Storm Water Requirements
States and municipalities may have other requirements for flood
control, erosion and sediment (E&S) control, and in many cases, storm
water quality. Many of these provisions were enacted before the
promulgation of the EPA Phase I storm water rule. All states have laws
for E&S control, and these are often implemented by MS4's. A summary of
existing state and local requirements is provided in the Development
Document.
D. Effluent Guidelines and Standards Program
Effluent limitation guidelines and standards (hereinafter referred
to as ``effluent guidelines'' or ``ELGs'') are technology-based
requirements for categories of point source dischargers. These
limitations are subsequently incorporated into NPDES permits. The
effluent guidelines are based on the degree of control that can be
achieved using various levels of pollution control technology, as
defined in Title III of the CWA and outlined below.
1. Best Practicable Control Technology Currently Available (BPT)
In guidelines for a point source category, EPA may define BPT
effluent limits for conventional, toxic,\2\ and non-conventional
pollutants. In specifying BPT, EPA looks at a number of factors. EPA
first 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 Agency 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
practically applied. See ``A Legislative History of the Federal Water
Pollution Control Act Amendments of 1972,'' U.S. Senate Committee of
Public Works, Serial No. 93-1, January 1973, p. 1468.
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\2\ In the initial stages of EPA CWA regulation, EPA efforts
emphasized the achievement of BPT limitations for control of the
``classical'' pollutants (e.g., TSS, pH, BOD5). However,
nothing on the face of the statute explicitly restricted BPT
limitation to such pollutants. Following passage of the Clean Water
Act of 1977 (Public Law 95-217, December 27, 1977) with its
requirement for point sources to achieve best available technology
limitations to control discharges of toxic pollutants, EPA shifted
its focus to developing BAT limitations for the listed priority
toxic pollutants.
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In addition, the Act requires a cost-reasonableness assessment for
BPT limitations. In determining the BPT limits, EPA considers the total
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.'' See Legislative History, op. cit., p. 170. Moreover, the
inquiry does not require the Agency to quantify benefits in monetary
terms. See, for example, American Iron and Steel Institute v. EPA, 526
F. 2d 1027 (3rd Cir., 1975).
In balancing costs against the benefits of effluent reduction, EPA
considers the volume and nature of expected discharges after
application of BPT, the
[[Page 42649]]
general environmental effects of pollutants, and the cost and economic
impacts of the required level of pollution control. In past effluent
limitation guidelines and standards, BPT cost-reasonableness removal
figures have ranged from $0.21 to $33.71 per pound removed in year 2000
dollars. In developing guidelines, the Act does not require
consideration of water quality problems attributable to particular
point sources, or water quality improvements in particular bodies of
water. Accordingly, EPA has not considered these factors in developing
the limitations being proposed today. See Weyerhaeuser Company v.
Costle, 590 F. 2d 1011 (D.C. Cir. 1978).
2. Best Available Technology Economically Achievable (BAT)
In general, BAT effluent guidelines (CWA section 304(b)(2))
represent the best existing economically achievable performance of
direct discharging plants in the subcategory or category. 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. The Agency retains considerable discretion in assigning
the weight to be accorded to these factors. An additional statutory
factor considered in setting BAT is ``economic achievability.''
Generally, EPA determines the economic achievability 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. As with BPT, where existing performance is
uniformly inadequate, EPA may base BAT upon technology transferred from
a different subcategory or from another category. In addition, the
Agency may base BAT upon manufacturing process changes or internal
controls, even when these technologies are not common industry
practice.
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 section 304(b)(4)(B), the CWA 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. The
Administrator designated oil and grease as an additional conventional
pollutant on July 30, 1979 (44 FR 44501). A primary pollutant of
concern at construction sites, sediment, is measured as TSS.
4. New Source Performance Standards (NSPS)
NSPS reflect effluent reductions that are achievable based on the
best available demonstrated control technology. New facilities 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, non-conventional, 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 are
Pretreatment Standards for Existing Sources (PSES) and Pretreatment
Standards for New Sources (PSNS) under section 307(b). Because EPA has
identified no deliberate discharges directly to POTWs, EPA is not
proposing PSES or PSNS for the Construction and Development Category.
The information reviewed by the Agency indicates that the vast majority
of construction sites discharge either directly to waters of the U.S.
or through MS4s. In some urban areas, construction sites discharge to
combined sewer systems (i.e., sewers carrying both storm water and
domestic sewage through a single pipe) which lead to POTWs. Sediment is
susceptible to treatment in POTWs, using technologies commonly employed
such as primary clarification, and EPA has no evidence of interference,
pollutant pass-through or sludge contamination.
6. Effluent Guidelines Plan and Consent Decree
Clean Water Act section 304(m) requires EPA to publish a plan every
two years that consists of three elements. First, under section
304(m)(1)(A), EPA is required to establish a schedule for the annual
review and revision of existing effluent guidelines in accordance with
section 304(b). Section 304(b) applies to ELGs for direct dischargers
and requires EPA to revise such regulations as appropriate. Second,
under section 304(m)(1)(B), EPA must identify categories of sources
discharging toxic or nonconventional pollutants for which EPA has not
published BAT ELGs under section 304(b)(2) or new source performance
standards under section 306. Finally, under section 304(m)(1)(C), EPA
must establish a schedule for the promulgation of BAT and NSPS for the
categories identified under subparagraph (B) not later than three years
after being identified in the 304(m) plan. Section 304(m) does not
apply to pretreatment standards for indirect dischargers, which EPA
promulgates pursuant to section 307(b) and 307(c) of the Act.
On October 30, 1989, Natural Resources Defense Council, Inc.
(NRDC), and Public Citizen, Inc., filed an action against EPA in which
they alleged, among other things, that EPA had failed to comply with
section 304(m). Plaintiffs and EPA agreed to a settlement of that
action in a consent decree entered on January 31, 1992. (Natural
Resources Defense Council et al v. Whitman, D.D.C. Civil Action No. 89-
2980). The consent decree, which has been modified several times,
established a schedule by which EPA is to propose and take final action
for eleven point source categories identified by name in the decree and
for eight other point source categories identified only as new or
revised rules, numbered 5 through 12. EPA selected the Construction and
Development category as the subject for New or Revised Rule
10. The decree, as modified, calls for the Administrator to
sign a proposed ELG for the C&D category no later than May 15, 2002,
and to take final action on that proposal no later than March 31, 2004.
A settlement agreement between the parties, signed on June 28, 2000,
requires that EPA develop regulatory options applicable to discharges
from construction, development and redevelopment, covering site sizes
included in the Phase I and Phase II
[[Page 42650]]
NPDES storm water rules (i.e. one acre or greater). EPA is required to
develop options including numeric effluent limitations for
sedimentation and turbidity; control of construction site pollutants
other than sedimentation and turbidity (e.g. discarded building
materials, concrete truck washout, trash); BMPs for controlling post-
construction runoff; BMPs for construction sites; and requirements to
design storm water controls to maintain pre-development runoff
conditions where practicable. The settlement also requires EPA to issue
guidance to MS4s and other permittees on maintenance of post-
construction BMPs identified in the proposed ELGs. Further discussion
of approaches not pursued by EPA at this time may be found in the
docket for today's proposal.
E. Pollution Prevention Act
The Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13101 et
seq., Public Law 101-508, November 5, 1990) makes pollution prevention
the national policy of the United States. The PPA identifies an
environmental management hierarchy in which pollution ``should be
prevented or reduced whenever feasible; pollution that cannot be
prevented should be recycled in an environmentally safe manner,
whenever feasible; pollution that cannot be prevented or recycled
should be treated in an environmentally safe manner whenever feasible;
and disposal or release into the environment should be employed only as
a last resort * * *'' (42 U.S.C. 13103). In short, preventing pollution
before it is created is preferable to trying to manage, treat or
dispose of it after it is created. According to the PPA, source
reduction reduces the generation and release of hazardous substances,
pollutants, wastes, contaminants or residuals at the source, usually
within a process. The term source reduction ``* * * includes equipment
or technology modifications, process or procedure modifications,
reformulation or redesign of products, substitution of raw materials,
and improvements in housekeeping, maintenance, training, or inventory
control. The term 'source reduction' does not include any practice
which alters the physical, chemical, or biological characteristics or
the volume of a hazardous substance, pollutant, or contaminant through
a process or activity which itself is not integral to or necessary for
the production of a product or the providing of a service.'' In effect,
source reduction means reducing the amount of a pollutant that enters a
waste stream or that is otherwise released into the environment prior
to out-of-process recycling, treatment, or disposal.
Although the PPA does not explicitly address storm water discharges
or discharges from construction sites, the principles of the PPA are
implicit in many of the practices used to reduce pollutant discharges
from construction sites. These include controls that minimize the
potential for erosion such as proper phasing of construction, retention
of on-site vegetation and stabilization of disturbed areas as soon as
practicable. These controls and practices are described in section IX.A
of today's document.
IV. Scope of Proposal
EPA is proposing three options, and soliciting comment on
variations on these options, for further control of the discharge of
pollutants in storm water associated with construction and development
activities.
One proposed option (Option 2) would establish C&D effluent
guidelines that would apply to construction site operators at sites
with 5 acres or more of disturbed area. Under this option, an operator
would be required to:
Design, install and maintain erosion and sediment
controls;
Prepare a storm water pollution prevention plan;
Inspect the site throughout the land-disturbance period;
and
Certify that the controls meet the regulatory design
criteria or permit conditions, as applicable.
These provisions are explained in section X.D. of today's document.
Today's proposal does not include requirements regarding the selection
or implementation of long-term storm water controls at the sites using
permanent BMPs. Under the NPDES storm water permit program, State and
local governments are responsible for establishing requirements for
permanent storm water controls, and for the maintenance of those
permanent storm water controls. Today's proposed rule would not alter
that responsibility. EPA has collected a significant body of technical
information on the design and effectiveness of various permanent storm
water controls that may assist State and local governments as they
establish their requirements for construction and development activity.
EPA anticipates releasing this document sometime after this proposal.
EPA is also preparing a guidance manual on storm water BMP maintenance
procedures to assist State and local governments and property owners.
EPA anticipates releasing a final version of this document at the time
of final action on this proposal in March of 2004. A draft of the
document is included in the rulemaking record of this proposal.
EPA is also considering a variation on this option that would
establish C&D effluent guidelines that would apply to construction site
operators at sites with five acres or more of disturbed area. Under
this variation an operator would be required to:
Design, install and maintain erosion and sediment
controls; and
Prepare a storm water pollution prevention plan.
Under this variation Federal inspection and certification requirements
would not be established; those provisions could be addressed at the
local level.
Another proposed option (Option 1) would not establish C&D effluent
guidelines, but rather would amend the NPDES storm water requirements
for construction site operators subject to NPDES storm water
requirements, i.e., operators of construction sites with one acre or
more of disturbed area. (See section III.B of today's document for a
summary of current permit requirements.) Under this option, an operator
would be required to:
Inspect the site throughout the land-disturbance period;
and
Certify that the controls meet the regulatory design
criteria established by the Federal, Tribal, State or local government.
These provisions are explained in section X.D of today's document.
The final proposed option (Option 3) would not establish C&D
effluent guidelines or amend the NPDES storm water requirements for
construction site operators. Rather, this option would continue to rely
on control practices and any certification and inspection requirements
tailored to local conditions that established by the permitting
authority on a BPJ basis.
V. Summary of Data Collection Activities
A. Existing Data Sources
In developing today's proposal, EPA collected and reviewed existing
data from a variety of sources, including technical and professional
literature; the National Storm Water Best Management Practices Database
developed by the American Society of Civil Engineers (ASCE); the
Agency's economic analysis for the Phase II NPDES storm water rule;
State storm water and erosion and sediment control manuals and
handbooks; EPA and State databases on construction general permits; the
United States Department of Agriculture (USDA) National Resources
Inventory; the Census of Construction; and the U.S. Army Corps of
Engineers evaluation of
[[Page 42651]]
BMPs for small construction sites. Other information sources included
Federal agencies such as the Securities and Exchange Commission and
Small Business Administration (SBA); industry and trade association
publications; university and nonprofit organization research centers;
interviews with State and local officials; and interviews with industry
representatives and consultants. EPA did not conduct any questionnaire
surveys of the construction and development industry in preparing
today's proposal.
EPA drew heavily on the mass of data related to erosion and
sediment control, and storm water technology and BMP applicability and
efficiency contained in the technical and scientific literature in
order to develop today's proposal. Data sources collected and evaluated
include published papers and journal articles, ASCE and International
Erosion Control Association (IECA) conference proceedings, research
reports from state and federal agencies such as USDA, U.S. Department
of Transportation, State Departments of Transportation, and the
Transportation Research Board. EPA conducted a detailed assessment of
these data sources, the results of which are summarized in the
Development Document for the Construction and Development Effluent
Guidelines (see ``Supporting Documentation''). The document summarizes
efficiency data for most of the erosion and sediment controls in common
usage. This literature and data summary was the main source of data
used to evaluate BMP efficiency and applicability for today's proposal.
EPA also augmented these data sources with data contained in the
National Storm Water BMP Database. This database is a comprehensive
data storage and evaluation system developed by ASCE in cooperation
with EPA. The database contains monitoring studies on storm water BMPs
in a consistent and transferrable format in order to allow for a
comprehensive evaluation and comparison of various BMP designs.
Representative information provided for each BMP includes test site
location, researcher contact data, watershed characteristics, regional
climate statistics, BMP design parameters, monitoring equipment types,
and monitoring data such as precipitation, flow and water quality. The
database can be accessed at http://www.bmpdatabase.org.
The U.S. Census Bureau conducted the most recent Census of
Construction in 1997. The Census provides data on the number, size, and
geographic distribution of establishments; employment and payroll;
financial information (such as revenues and expenses); specialization
by type of construction; and amount and type of work subcontracted out.
EPA relied on additional Census Bureau programs for data on market
conditions in the industry. The Building Permits Program provided
monthly data on the number of building permits issued for new
residential construction. The annual Survey of Construction provided
data on number of housing starts, completions, and units sold;
characteristics of new homes (including size of home and building lot
size); and value of construction put in place.
While the Census Bureau programs provide substantial data on
business establishment characteristics and industry output, there is a
noticeable lack of information linking establishment data to output
measures. For example, the Census of Construction provides average and
median revenues and value of construction for all establishments and
for establishments by employment size class, but does not provide a
distribution of establishments by number of housing units started or
completed, number of construction permits issued, or number of acres
developed. For EPA's economic analysis this was a significant data gap,
since the proposed regulations would be implemented at the project
level and the Agency developed its compliance cost estimates on a per-
acre basis. This led EPA to develop a method for estimating the number
of acres disturbed per establishment.
EPA was able to partially fill these data gaps using information
contained in a special Census Bureau report (``1997 Economic Census;
Construction Sector Special Study Housing Starts Statistics; A Profile
of the Homebuilding Industry,'' July 2000). This report contains
estimates of the number of homebuilding establishments by number of
housing units built each year. EPA combined this information with data
on the average lot size for new homes to estimate a distribution of
establishments by number of acres disturbed. EPA also used data from
this report to determine the number of small builders who are likely to
disturb less than one acre of land per year and who therefore are not
covered by the storm water permit program.
Another data source was important for further clarifying the size
of the industry that is covered by the storm water permit program. The
single-family and multi-family housing construction industries (NAICS
23321 and 23322) include establishments that are engaged in new
construction as well as renovation of existing construction. Since
renovation and remodeling activities generally do not disturb one acre
or more of land per site, renovation and remodeling contractors would
not be subject to the requirements being proposed today. To estimate
the number of such contractors, EPA used data from a recent study
completed by the Joint Center for Housing Studies at Harvard
University. This report classified establishments that derive at least
half of their revenues from remodeling activities as remodelers. Based
on this definition, the Agency concluded that a substantial portion of
the single-family and multifamily housing construction sector may not
be affected by today's proposal. EPA requests comment on its assumption
that firms which derive at least half their revenues from remodeling
will not be affected by today's proposal.
EPA obtained information on home ownership rates, mortgage
affordability, and interest rates from sources such as Fannie Mae and
the Federal Housing Finance Board. Data on average costs of
construction for various types of projects were obtained from R.S.
Means Co. publications and the National Association of Home Builders
(NAHB).
EPA obtained data on the amount of land converted from undeveloped
to developed status from the National Resources Inventory (NRI). This
is a statistical sampling program conducted by USDA every five years
that defines geographic sampling points in terms of their land use
status. The most recent NRI indicates that during the period 1992 to
1997, each year over 2.2 million acres of land previously classified as
undeveloped were converted to developed status. For developed land, the
NRI does not specify the type of use (i.e., single family homes,
roadways, commercial or industrial sites). In order to estimate the
number of acres converted by type of development, EPA used actual data
or estimates of the number of projects permitted and the average size
of projects, by type. For example, to determine the number of acres
converted to residential housing development EPA multiplied the number
of new homes permitted for construction each year by the average lot
size for new construction. For non-residential construction, EPA had to
fill a data gap created when the Census Bureau ceased, in 1995,
collecting information on the number of nonresidential building permits
issued. The Agency used historical (pre-1995) data on nonresidential
starts to establish a relationship between residential and
nonresidential starts from which current nonresidential activity could
be
[[Page 42652]]
estimated. To stratify the aggregate amount of land converted to
developed status by size of development project, EPA used data on
construction project size collected from 14 municipalities in support
of the NPDES Phase II storm water regulations (Economic Analysis of the
Phase II Storm Water Rule, Final Report, October 1999.)
B. Storm Water Discharge Sampling and Site Visits
At the time of this proposal, EPA is planning to conduct sampling
and analysis of discharges at a number of construction sites in order
to better characterize the pollutants commonly found in construction
site runoff. EPA has also funded several cooperative agreements
evaluating construction site pollutant loadings, erosion and sediment
control effectiveness, and receiving water impacts of land development
activities.
C. Industry-Supplied Data
EPA has reviewed reference publications and data prepared by
industry organizations including NAHB, the Construction Financial
Management Association and the Urban Land Institute. The Agency
received cost data and comments from several construction and
development businesses during the Small Business Advocacy Review
conducted in 2001. (This review is described in section XIX.C of
today's document.)
NAHB submitted a report that presents an independent evaluation of
the data contained in the initial release of the National Stormwater
BMP Database. (National Association of Home Builders, ``Erosion and
Sediment Control Best Management Practices Research Project.''
Washington, DC, 2000). The report is included in the rulemaking record.
D. Summary of Public Participation
EPA conducted an introductory public meeting in April 1999
describing the effluent guidelines development process and the
regulatory issues being considered for the C&D rule. In the Summer of
2001 EPA conducted two additional meetings to provide an update of
progress on the rule development.
Since the beginning of the rule project in 1998, EPA has held
meetings with industry associations, State and local government
officials, professional organizations and citizen groups on the C&D
rule. In 2000-01, EPA conducted interviews and group discussions with
builders and developers to learn about the land development process,
builder-developer organizational structures, operational and business
practices, and business trends in greater detail.
In 2001 EPA conducted a Small Business Advocacy Review panel
pursuant to the Small Business Regulatory Enforcement Fairness Act
(SBREFA). A discussion of this process and findings are discussed in
section XIX.C of today's document.
VI. Industry Profile
A. Affected Industry Sectors
The construction and development category covers establishments
classified by the Census Bureau into two subsectors.
The Building, Developing and General Contracting subsector
(NAICS 233) includes land subdivision and development, and building
construction (residential and nonresidential). Land developers select
construction sites, conduct site planning and design activities, and
carry out other tasks such as financing and marketing. General
contractors build residential, industrial, commercial and other
buildings.
Heavy Construction contractors (NAICS 234) build sewers
and other utilities, roads, highways, bridges and tunnels.
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.
The residential building industries have their own variety of
operational relationships. Many home building projects are initiated
and managed by a developer, using one or more general contractors to
supervise and/or carry out the physical construction activities. Other
projects are operated by ``merchant'' builders. A merchant builder is a
firm that develops property, constructs homes, and markets the final
product within the same company. Although these functions may be
conducted by different entities, the merchant builder conducts all of
these activities within the same firm. In the past, industry members
used the term ``operative builder'' to refer to a firm that conducts
these activities within the same firm. The merchant builder is
organized into divisions or departments within the firm and each
division or department is responsible for different functions, e.g.
land development, construction, marketing.
Most builders and developers are separate entities. Typically, the
developer acquires property and moves the project from raw land to
finished lots. The lots are usually sold to builders who construct
houses, commercial/shopping centers, office and industrial parks, and
other products for the final consumer. In some situations home builders
will construct speculatively without a contract. In other cases the
home buyer will contract with a builder for a specific house. The
builder hires subcontractors for carpentry, plumbing, electrical, and
other services.
Some of the operating characteristics of the heavy construction
subsector include: (1) Usually government agency clients rather than
private customers, (2) public sector clients typically issue
specifications to cover many projects (e.g., a highway agency publishes
road construction standards for all projects in its jurisdiction), and
(3) frequent use of unit price contracts (e.g., a local public works
agency contracts for installation of a quantity of sewer pipeline). The
relationship between the heavy construction firm and the public
customer is typically established through a competitive bid process.
Private sector customers may initiate projects through negotiated
contracts.
EPA understands that in typical construction projects the firms
identifying themselves as ``operators'' under a construction general
permit are general building contractors and/or developers.\3\ While
such projects may use the services of specialty contractors such as
excavation companies, these firms are typically subcontractors to the
general building contractor and are not identified as operators in the
storm water permit. Other classes of subcontractors such as carpentry,
painting, plumbing and electrical services typically do not apply for,
nor receive, NPDES permits and EPA is not including these businesses in
its population estimates for the purpose of today's proposed rule. EPA
is also excluding businesses classified by the Census Bureau as ``non-
employer'' establishments. These establishments tend to be
proprietorships with the owner providing individual construction
services to the industry, and they are primarily engaged in activities,
such as remodeling, that disturb little if any land.
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\3\ Under the CGP, a property owner who is not a developer or
contractor, e.g., a corporation erecting an office building for its
own use, may be designated as a co-permittee if it retains control
over site plans.
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B. Construction and Development Activities Affecting Water Quality
1. Planning and Site Design
Land development tasks that can affect pollutant discharges
typically include the following activities:
[[Page 42653]]
Site selection and analysis;
Design of subdivision and lot sizes in residential and
mixed-use projects;
Design of infrastructure (roads, sewers, utility lines,
etc.).
In many cases, particularly on smaller projects, a land owner may
manage these tasks directly without the involvement of a real estate
developer. In larger projects, real estate developers usually manage
the project, especially when local government requirements and approval
processes are complex. This is often the case for residential
developments, mixed-use projects (involving housing, commercial and/or
other land uses), shopping centers and large office buildings and
complexes.
A real estate developer initiating a project will typically have a
particular kind of project in mind (such as residential or commercial),
but may not have identified a particular site. The developer may
formulate a conceptual plan for the project and then search for sites
that could accommodate such a plan. During the site selection process
many factors are taken into consideration by the developer, and
included among these may be the presence of water bodies on or near the
site. For example, the developer may consider on-site water features to
be an amenity that can add value to the site. On-site water body
characteristics may dictate how structures can be located on the site
to avoid flooding. Some properties may have limitations if on-site or
adjacent water bodies have regulatory designations such as riparian
buffers, flood plains and wetlands.
Once a site has been selected and control of the property is
obtained (through purchase, lease, option to purchase, etc.), the
developer can proceed with site analysis, design and initial proposals
for local government approval. Site analysis includes examination of
topography, soils, and hydrology. Site design tasks depend on the
planned uses for the land (residential, commercial, institutional,
etc.) and may involve subdivision of the site into individual home
lots; locating commercial, institutional or industrial buildings;
locating streets, sidewalks and/or parking areas; and placement of
utilities, including storm drainage systems. Planning for storm water
management during the early stages of project formulation allows for
consideration of site designs that can reduce the overall water quality
impacts of the site. One such planning strategy, ``Conservation
Design,'' includes avoiding natural wetland areas, preserving existing
trees and vegetation, maintaining stream buffers, limiting the extent
of clearing and grading activities, and identifying highly infiltrative
soil areas for preservation. (See ``Growing Green,'' Natural Lands
Trust, Inc., Media, PA. Available at http://www.natlands.org/planning/planning.html.) The site design is subject to local government
approval, and multiple agencies may be involved, depending on the size
and complexity of the site and the requirements of master planning or
zoning agencies. Once the appropriate government approvals have been
obtained, the permittee may proceed with ground breaking activities.
(D. Linda Kone, ``Land Development,'' Washington, DC: Home Builders
Press, 2000).
2. Clearing, Excavating and Grading
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 must be hauled away by
tractor-pulled wagons, dump trucks or articulated trucks.
Clearing activities involve the movement of materials from one area
of the site to another or complete removal from the site. Equipment
used for lifting excavated and cleared materials include aerial-work
platforms, forwarders cranes, rough-terrain forklifts, and truck-
mounted cranes. Truck loaders are used for digging and dumping earth.
Excavation and grading may be performed by several different types
of machines. They can also be done by hand, but this is generally more
labor-intensive and more expensive. When grading a site, builders
typically take measures to ensure that new grades are as close to the
original grade as possible, so as not to create a dis-equilibrium,
especially to avoid erosion and storm water runoff. Proper grade also
ensures a flat surface for development and is designed to attain proper
drainage away from the constructed buildings.
Equipment used during excavation and grading include backhoes,
bulldozers, loaders, directional drilling rigs, hydraulic excavators,
motor graders, scrapers, skid-steer loaders, soil stabilizers, tool
carriers, trenchers, wheel loaders and pipeliners. 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 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. Compaction is most often accomplished
with various types of rollers.
For removal of rock from the site, the contractor must first loosen
and break the rock into small pieces. This can be accomplished by
drilling or blasting. Drilling equipment includes jackhammers, wagon
drills, drifters, churn rills, and rotary drills. Dynamite and other
explosives can be used to loosen rock.
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.
3. Erosion and Sediment Control
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. This process is called erosion. The water carrying these
particles eventually reaches a water body. The particles are deposited
in the water body, a process called sedimentation. Descriptions of the
environmental impacts of construction site runoff are provided in
section XV of today's document.
Contractors use erosion and sediment controls (ESCs) to mitigate
these impacts. Erosion controls include mulching, vegetative filter
strips, diversion berms and conveyance channels, slope drains, bonded
fiber matrices, and rolled products such as turf reinforcement mats.
These materials and methods are intended to reduce erosion where soil
particles can be initially dislodged on a construction site, either
from rainfall, snow melt or up-slope runoff. Erosion controls may not
be completely effective, and sediment controls are typically employed
in addition. Sediment controls include sediment basins, ponds, and
traps; and barrier methods such as silt fences, straw bales and rock
barriers. ESCs are further described in section VIII of today's
document.
[[Page 42654]]
4. Control of Other Pollutants
Construction activity generates a variety of waste materials. These
materials may include concrete truck rinsate, trash, and other
pollutants. Construction site operators utilize various practices to
manage these wastes and minimize discharges to surface waters,
including:
Neat and orderly storage of chemicals, pesticides,
fertilizers, and fuels that are being stored on the site;
Regular collection and disposal of trash and sanitary
waste;
Prompt cleanup of spills of liquid or dry materials.
These procedures are described in EPA's 1992 guidance, ``Storm
Water Management for Construction Activities: Developing Pollution
Prevention Plans and Best Management Practices'' (op. cit.), State and
local government documents pertaining to construction sites, and in
section VIII of today's document.
5. Final Stabilization and Long-Term Storm Water Management
Construction activities on previously undeveloped land areas can
significantly alter the hydrology of a site. In order to avoid flooding
on the site and protect the newly constructed structures, the builder
must design drainage facilities. The builder's site plans, as approved
by the local government, specify the location of buildings and other
structures, and typically indicate the site's drainage patterns and
facilities for long-term storm water management. The plans may specify
permanent storm water management facilities (or BMPs) to be constructed
on the site, to control flooding, and in some cases, to protect
receiving water quality. No single BMP type can address all storm water
problems. Each type has certain limitations based on the drainage area
served, available land space, cost, pollutant removal efficiency, as
well as a variety of site-specific factors such as soil types, slope
and depth of groundwater table. Storm water management BMPs are further
described in section VIII of today's document.
VII. Storm Water Discharge Characteristics
Since 1972, EPA and the States have made good progress in issuing
discharge permits for a wide range of point sources dischargers. These
permits have made dramatic improvements in water quality conditions and
are largely responsible for much of the success in reducing water
pollution. Most of these permits are for continuous discharges with
predictable effluent quality and quantity that occur in both wet and
dry weather conditions.
Construction disturbance activities can generate a broad range of
environmental impacts by altering the physical characteristics of the
affected land area. Construction activities typically involve the
clearing, surface stripping, grading, and excavation of existing
vegetation followed by the active construction period when the affected
land is usually left denuded and the soil compacted, often leading to
an increase in storm water runoff and higher rates of erosion. The most
significant pollutant associated with construction activity at most
sites is sediment. Total suspended solids (TSS) concentrations from
uncontrolled construction sites have been found to be up to 150 times
greater than concentrations from undeveloped land.\4\ If the denuded
and exposed areas contain contaminants, such as nutrients, pathogens,
metals or organic compounds, they are likely to be carried at increased
rates to surrounding water bodies via storm water runoff. The denuded
construction site is only a temporary state, often less than six
months. When the land is restored with the replanting of vegetation
after construction is completed, the hydrology of the site may be
altered. For example, the completed construction site may have a
greater proportion of impervious surface than prior to site
development, leading to changes in the volume and velocity, and in some
cases temperature, of storm water runoff.
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\4\ TSS is an ``indicator'' parameter used to measure sediment
discharges. The analytical test procedure for TSS is called
``Residue-Nonfilterable.'' EPA-approved analytical methods for TSS
are listed in 40 CFR part 136, Table I.B.
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VIII. Description of Available Technologies
A. Introduction
Construction and development activities have the potential to
discharge pollutants to surface waters due to poor or inadequate site
design, planning and BMP implementation. These impacts can be mitigated
by the application of design techniques to preserve or avoid areas
prone to erosion and through the use of erosion and sediment controls.
The use of good site design and planning techniques also can reduce
pollution control costs and improve the effectiveness of pollution
control strategies and practices. Good site design can also integrate,
to the extent appropriate, practices to control erosion and
sedimentation at active construction sites with practices to control
post-construction runoff. For example, site plans may provide for the
conversion of short-term sediment control practices such as sediment
basins into extended detention wet ponds or other long-term structural
BMPs.
A discussion of technologies and BMPs is contained in the following
sections of today's document. Some states and local governments have
also published detailed manuals for ESC and or storm water management
controls. Links to on-line publications are available on EPA's website
at http://www.epa/gov/OST/guide/construction.
B. Erosion and Sediment Controls and Other Site Management Practices
1. Goals
Construction site activities should be managed to reduce erosion,
and to the extent practical, retain sediment on the 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, that 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 can be prevented or minimized by various methods and
practices. 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 and overall erosion and sediment
control costs. After land has been disturbed, exposed soils should be
covered as soon as possible and runoff should be actively managed to
prevent run-on flows from off-site areas and uncontrolled runoff from
the disturbed area(s). In addition, runoff should be managed to prevent
high runoff velocities and concentrated flows that are erosive. The
continued effectiveness of erosion controls also is dependent on
frequent inspections of erosion control practices to identify
maintenance needs.
The control of sediment detached and mobilized through erosional
processes requires a separate set of management practices. Several
mechanisms can be used to remove suspended sediments in runoff. They
include: filtration, settling and chemical precipitation. These
mechanisms are used to trap, filter or
[[Page 42655]]
settle soil particles so they do not enter surface waters.
More detailed descriptions of sediment and erosion controls can be
found in the Development Document.
2. Major Categories of Best Management Practices
Planning is the most critical element in designing an effective
strategy to control erosion and sedimentation on construction sites.
The protection of areas prone to erosion, the selection and siting of
erosion and sediment control practices and the continued effectiveness
of these systems will depend on a well defined plan.
Erosion and sediment control (ESC) plans and site plans provide the
blueprints for the protective activities that will occur on the
construction site. The ESC and site plans may also contain descriptions
of temporary practices such as sediment basins that will be converted
into long-term storm water management practices.
Several general objectives should be addressed in an effective ESC
plan:
Minimize clearing and grading activities;
Protect waterways and stabilize drainage ways;
Phase construction to limit soil exposure;
Stabilize soils as soon as practicable;
Protect steep slopes and cuts;
Install perimeter controls to filter sediment;
Employ sediment settling controls.
To ensure that builders and contractors implement effective ESC
plans, MS4s may employ several other program elements. These elements
include an ESC plan review process; contractor education; training,
licensing and certification programs, and an inspection and enforcement
process. See EPA's MS4 ``Menu of BMPs'' website at http://www.epa.gov/npdes/menuofbmps/menu.htm for descriptions of these activities.
The use of erosion controls is widely recognized as being the most
cost-effective way of managing sediment on construction sites. Typical
practices used to prevent and reduce soil movement include: reducing
the overall area of disturbed land, minimizing the time soils are
exposed to precipitation, scheduling clearing and grading events to
reduce the probability that bare soils will be exposed to rainfall,
preventing off-site and on-site runoff from eroding soils through the
use of berms, conveyances or energy dissipation devices, covering soils
or stockpiles, stabilizing exposed soils as soon as possible, and
inspecting and maintaining erosion controls on a periodic basis, e.g.,
after each storm event. Vegetative stabilization using annual grasses
is the most common practice used to control erosion. Polymers, physical
barriers such as geotextiles, straw, and mulch are other common methods
of controlling erosion.
Despite the proper use of erosion controls, some sediment
detachment and movement is inevitable. Sediment controls are used to
control (direct) and trap sediment that is entrained in 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 the primary method used to treat and settle out sediment for small
and large disturbed areas.
Construction site operators manage building materials and waste to
reduce and eliminate potential water quality impacts. Construction
materials and chemicals should be handled, stored and disposed of
properly to avoid contamination of runoff. Site management plans
typically include elements such as spill prevention and remediation
plans, nutrient management plans for vegetative stabilization efforts,
and provisions for human waste disposal, e.g., portable toilets.
C. Long-Term Storm Water Management Control
1. Goals
After completion of construction, a variety of measures have been
adopted to prevent flooding and achieve local resource protection
goals, such as groundwater recharge or maintaining stream stability.
For example, BMPs are often integrated into the overall site design,
and generally approved by the local government. A number of States have
developed storm water BMP selection and design criteria for use in
their state. In addition, the Water Environment Federation (WEF) and
the American Society of Civil Engineers (ASCE) have developed a
methodology for storm water BMP design. (Water Environment Federation
and the American Society of Civil Engineers, ``Urban Runoff Quality
Management.'' 1998. WEF Manual of Practice No. 23 and ASCE Manual and
Report on Engineering Practice No. 87. Available for purchase at http://www.wef.org and http://www.asce.org).
2. Major Categories of Best Management Practices
Planning and site design are important to ensure the selection of
site designs that will meet the needs of the owner and be compatible
with local infrastructure. State and local governments have a primary
role in ensuring proper planning and the design of structural storm
water runoff conveyance and treatment systems.
Under any design approach, runoff flow paths are designed to route
the runoff though functional landscaped areas or structural BMPs that
store, infiltrate, evaporate, and slow the velocity of the runoff.
Storage basins, swales, bioretention cells (highly permeable engineered
soils planted with vegetation), grading to alter topography, increase
infiltration and decrease erosion, and depression storage are the most
typical practices used to manage runoff and reduce pollutant loadings.
More innovative practices include rooftop storage, ``green'' roofs
(landscaped roof systems designed to store and treat storm water), re-
vegetation, rainwater capture and reuse, street filters (systems for
treatment of street and highway runoff), and soil amendments.\5\
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\5\ Low Impact Development (LID) is a site design approach that
incorporates conservation techniques along with an integrated set of
small site-level landscape runoff treatment and control features
that are uniformly distributed throughout the site in order to
prevent runoff pollution and reduce the impacts of development and
redevelopment activities on water resources. (``Low Impact
Development Design Strategies: An Integrated Design Approach,'' EPA
841-B-00-003, January 2000. Available on EPA's website at http://www.epa.gov/owow/nps/urban.html). Approaches similar to LID,
although sometimes using different terminology, include ``Better
Site Design'' (``Introduction to Better Site Design.'' Article no.
45 in The Practice of Watershed Protection. Center for Watershed
Protection, Ellicott City, MD, 2000. http://www.stormwatercenter.net) and ``Infiltration Approach'' (``Start at
the Source: Design Guidance Manual for Stormwater Quality
Protection,'' Bay Area Stormwater Management Agencies Association,
Oakland, CA, 1999).
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Pollution prevention practices are often called source reduction
practices or ``non-structural'' BMPs. Education, training as well as
proper inspections and maintenance are the primary methods to achieving
pollution prevention objectives. Information dissemination via outreach
efforts, professional training, licensing and certification combined
with effective voluntary incentives, enforcement and compliance efforts
are essential to good practice. Product substitution or the use of
alternative methods and practices are also considered facets of
pollution prevention.
[[Page 42656]]
IX. Development of Effluent Limitation Guidelines and Standards
A. Industry Subcategorization
EPA may divide a point source category into groupings called
``subcategories'' to provide a method for addressing variations between
products, processes, and other factors which result in distinctly
different effluent characteristics. Regulation of a category by using
formal subcategories provides that each subcategory has a uniform set
of effluent limitations that take into account technological
achievability and economic impacts unique to that subcategory. In some
cases, effluent limitations within a subcategory may be different based
on consideration of these same factors which are identified in section
304(b)(2)(B) of the CWA, 33 U.S.C. 1314(b)(2)(B). The CWA requires EPA,
in developing effluent limitation guidelines and pretreatment
standards, to consider a number of different factors, which are also
relevant for subcategorization. The statute also authorizes EPA to take
into account other factors that the Agency deems appropriate. One
potential benefit of grouping similar facilities into subcategories is
the increased likelihood that the regulations will be practicable, and
it diminishes the need to address variations between facilities through
a variance process (Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1053
(D.C. Cir. 1978)).
In preparing today's proposal, EPA considered several ways of
subcategorizing the construction and development industry. Methods
considered by the Agency include subcategorization by site size (such
as disturbed acreage), development type (such as residential,
commercial, industrial and transportation), re-development vs.
``greenfield'' development (development on rural or agricultural land),
geography and hydrology (such as average annual rainfall and soil
erosivity), as well as builder or developer size (in terms of annual
revenue, annual units constructed, annual land disturbance, etc.).
1. Subcategorization by Site Size
EPA is not proposing to subcategorize site sizes of 10 acres or
more. EPA is concerned, however, that as site sizes decrease below 10
acres the choice of controls within site design parameters may become
more limited. For this reason, EPA is proposing in Option 2 to
establish slightly modified requirements that provide greater
flexibility for sites disturbing less than 10 acres. Specifically, EPA
is proposing to require sediment basins where attainable for sites
disturbing 10 acres or more, while leaving greater flexibility in the
choice of sediment controls for sites disturbing less than 10 acres.
EPA requests comment on this proposed subcategorization.
Under today's proposal, Option 2, which includes both control
requirements and certification and inspection requirements, would apply
to sites disturbing 5 or more acres, while Option 1, which includes
certification and inspection requirements only, would apply to sites
disturbing 1 acre or more. EPA is not proposing control requirements
for sites less than 5 acres at this time in order to allow the maximum
flexibility to the States in balancing the costs, availability, and
effectiveness of erosion and sediment controls and to provide time for
the States to demonstrate the effectiveness of permits to control
discharge of pollutants associated with construction activity
disturbing one to 5 acres under Phase II. EPA recognizes that this same
logic may apply to the certification and inspection requirements and
requests comment on adopting Option 1, but with a cutoff of 5 acres
rather than 1 acre. More generally, EPA requests comment on the
appropriate acreage cutoff for both Options 1 and 2.
2. Subcategorization by Industry
EPA is not, at this time, proposing subcategorization by industry
or industry group (i.e. residential building, non-residential building,
heavy construction). EPA recognizes that there are profit differentials
between industry groups that could affect their economic and financial
status. Based upon EPA's current cost estimates for the options being
proposed today, EPA has found these options to be economically
achievable for all industry groups. EPA is concerned about the
practical difficulty in defining an appropriate industry portion to be
subject to alternative standards, or an appropriate industry portion
for whom the controls being employed today would be technically or
economically infeasible. Since a large number of development projects
(especially larger projects) can consist of mixed land uses (such as a
large residential subdivision built along with a commercial/retail
center), a subcategorization by industry may also present
implementation challenges. EPA requests comment on possible industry
subcategorization and how to address the implementation issues
associated with such subcategorization.
3. Subcategorization by Builder/Developer Size
EPA is not, at this time, proposing subcategorization by builder,
developer or contractor firm size (in terms of annual construction
output, revenue, or acreage disturbed). Since the dollar value of a
project or revenue of a builder or developer is not necessarily related
to site size or disturbed area (due, in part, to differences in various
markets), EPA has not found a direct correlation between any of these
factors and the amount of pollutants in storm water discharges to
receiving waters.
4. Subcategorization Based on Hydrology, Soil Loss Potential or Other
Geographic Factors
EPA also considered subcategorizing the industry based on hydrology
and potential for soil loss, but determined that the existing soil loss
waiver included in the NPDES Phase II regulations (40 CFR
122.26(b)(15)(i)(A)) is sufficient for exempting sites with low
expected soil loss.
Geographic factors that may be appropriate for subcategorizing the
industry are based on low expected rainfall, defined periods of dry and
wet weather, and/or construction during cold weather where the ground
is frozen. On sites with these characteristics, the Agency expects soil
erosion to be minimal. Option 2 in today's proposal would continue the
provision in EPA's current CGP for delaying implementation of site
stabilization due to these geographic factors. See Sec. 450.21(h).
5. Subcategorization Based on Past Land Use
EPA considered subcategorization of the industry based on past land
use, such as classifying redevelopment sites differently from
``greenfield'' projects. Redevelopment projects present some
significant challenges in terms of erosion and sediment control due to
the potential for site constraints and conflicts such as size,
location, proximity to existing development, pre-development site
contamination issues, land costs, as well as the nature of surrounding
development. In addition, redevelopment projects are commonly perceived
to be preferable to greenfield development, due to the proximity of
redevelopment sites to existing infrastructure, the need to revitalize
older neighborhoods, and the potential for providing significant
economic stimulus to existing neighborhoods. As a result, many
communities offer incentives in order to encourage redevelopment
projects and to make the
[[Page 42657]]
economics of the project viable. Imposition of expensive storm water
and erosion control requirements in such cases, in light of the
constraints present, may inflict costs that render some projects to be
economically unattractive to a developer. EPA does not believe that the
level of controls being proposed in Option 2 today will be a
significant disincentive to redevelopment. Much of the redevelopment
occurring in urban areas involves sites of less than 5 acres in
disturbed land. For the redevelopment that exceeds that site size, EPA
believes that it is appropriate to require a comparable level of
erosion and sediment control as is provided at greenfield sites. The
design and implementation of those controls, while comparable, may be
very different for a site that has the advantage of existing stormwater
management infrastructure than for other sites. In either case, EPA
believes that the requirements being proposed provide sufficient
flexibility to allow affordable choices for both greenfield development
and redevelopment activities.
B. Regulatory Options Considered
In developing today's proposal, EPA initially evaluated several
regulatory options for both erosion and sediment control and other
temporary BMPs, storm water management, and options that would not
establish effluent limitation guidelines regulations. The erosion and
sediment control (ESC) options represent the controls that are
typically temporary and are used during the land-disturbing activities.
The storm water management options represent the long-term (permanent)
storm water controls that are designed and installed by the C&D
industry at the time of construction but are intended to reduce long-
term storm water impacts.
The following sections of today's document discuss the regulatory
options that EPA considered for today's proposal. Section X describes
the specific options contained in today's proposal.
1. Overview of Regulatory Options: Erosion and Sediment Controls and
Other Temporary BMPs
For erosion and sediment control and other temporary BMPs, EPA
considered a series of regulatory options. These options are designed
to control the discharge of sediment, storm water and other pollutants
from sites when construction is taking place. Construction and
development activity involves land disturbed from previous uses such as
agriculture or forest lands, or occurs as redevelopment of existing
rural or urban areas. During the construction process, vegetation or
surface cover is typically removed and soils become more available for
transport and discharge from construction sites. Today's proposal
provides regulatory tools to improve management and control on
construction sites to reduce and minimize soil, storm water, and
pollutant transport and discharge from construction sites.
EPA initially considered a range of options that incorporate
varying levels of management and various control strategies for sites
of 1 acre or more. During the Agency's outreach activities in advance
of proposal, small entity representatives expressed concern over the
complexity of overlapping and potentially inconsistent Federal, State,
and local storm water regulations. These individuals questioned whether
it was appropriate to be considering additional Federal storm water
regulations at such an early stage in implementation of the existing
storm water program. They further questioned EPA's assumptions
regarding the level of control that would be achieved by sites less
than 5 acres under the NPDES Phase II requirements, pointing out that
the compliance deadline for those sites has not yet passed.
As EPA evaluated the options for erosion and sediment controls and
other temporary BMPs, the Agency examined the merit of excluding sites
less than 5 acres at this time. EPA estimates that while only 30
percent of sites developed each year are 5 acres or more, these sites
represent over 80 percent of the disturbed acreage. The Agency believes
that the phased approach to issuing permits for construction and
development has allowed, and will continue to allow, EPA and States to
improve coordination, communication, and implementation of requirements
in a more strategic way. By focusing first on the larger sites, EPA and
the States are focusing resources on the universe of sites that have
the greatest potential for reducing discharge of pollutants to surface
waters. These sites generally have more control alternatives than
smaller sites, and greater flexibility in designing erosion and
sediment controls that work within overall site parameters.
Implementation of erosion and sediment controls under the NPDES Phase I
storm water rule has demonstrated that even though controls may be more
limited for sites as small as 5 acres, sufficient alternatives are
available to provide significant control. Indeed, while many of the
erosion and sediment control practices are not dependent on site size,
others (such as sediment basins) are not always appropriate for smaller
sites. Other factors also affect the availability of certain control
practices. As the site size decreases, the proportion of sites that are
``in-fill'' projects constructed between currently-developed
properties, or redevelopment of existing properties, likely increases.
These projects present some significant challenges in terms of erosion
and sediment control due to the potential for site constraints, land
availability and costs, proximity to existing development, as well as
the nature of surrounding development. EPA is proposing not to
establish effluent limitation guidelines for sites smaller than 5 acres
at this time in order to allow the maximum flexibility to the States in
balancing the costs, availability, and effectiveness of erosion and
sediment controls and to provide time for the States to demonstrate the
effectiveness of permits to control discharge of pollutants associated
with construction activity disturbing one to 5 acres under Phase II.
The following discussion presents the options that EPA considered for
erosion and sediment controls and other temporary BMPs.
Codify the EPA Construction General Permit
EPA considered an option (a variation on Option 2 being proposed
today) that would essentially codify the provisions contained in EPA's
construction general permit (CGP) as minimum national standards for
erosion and sediment control (i.e., for all states, not only those with
EPA as permitting authority). The CGP requirements that would be
codified include preparing a Storm Water Pollution Prevention Plan
(SWPPP) or equivalent, provisions for installing and sizing sediment
basins on sites with more than 10 acres of disturbed land, requirements
for providing cover on exposed soil areas within 14 days after
construction activity has ceased, and installation and maintenance of
other erosion and sediment control practices and other temporary BMPs
on all construction sites.
Codify the EPA Construction General Permit, Require Self-
Inspection and Certification
EPA considered an option (being proposed today as Option 2) that
would essentially codify the provisions contained in EPA's construction
general permit (CGP) as minimum national standards for erosion and
sediment control and add inspection and certification requirements to
improve operator accountability. The CGP requirements that would be
codified are
[[Page 42658]]
the same as in the previous option. In addition, EPA incorporated
mandatory site inspection, maintenance and reporting provisions by site
owners and operators in order to improve confidence in the
implementation and performance of construction site erosion and
sediment controls in this option. These certification provisions may be
accomplished either through self-inspection by a qualified employee of
the owner and operator (such as a professional engineer or person
trained in erosion and sediment control techniques) or inspection by a
third-party (such as a consulting firm). The certification provisions
would consist of a checklist-type certification form that the permittee
would be required to complete at various stages of the project to
certify that the provisions contained in the permittee's SWPPP are
being implemented. Permittees would be required to conduct periodic
inspections in order to confirm that the permittee is conducting the
maintenance necessary to maintain the functionality of BMPs. The
specific activities requiring certification include: SWPPP preparation;
installation of perimeter controls and sediment controls; site
inspections every 14 days; final stabilization of exposed soils and
removal of temporary erosion & sediment controls. The certification and
inspection forms would be retained on the site, and made available to
the permitting authority and the public upon request. This option is
being proposed as Option 2 in today's document (see section X).
Numerical Design Requirements
EPA considered an option that would establish numerical
requirements for the design of sediment basins and traps that would
vary based on local or regional rainfall patterns and site-specific
soil types. However, EPA determined that there were insufficient data
available to establish national criteria of this type, and therefore
did not include this requirement in today's proposed rule. In addition,
this approach would be a significant departure from the current CGP
sizing requirements, which establishes a requirement a calculated
volume of runoff from a 2-year, 2-hour storm, or for 3,600 cubic feet
of storage per acre, for all sites of 10 or more acres.
Numerical Pollutant Removal Requirements
EPA considered options that would contain numerical requirements
for the removal of specific pollutants from construction site runoff.
EPA initially considered targeting a variety of pollutants including
sediment, TSS, turbidity, nutrients, metals and other priority
pollutants. EPA considered a regulatory option that would establish
numerical removal criteria for sediment, or an associated indicator
parameter such as total suspended solids (TSS), suspended sediment
concentration, settleable solids, or turbidity. This option could be
expressed as either a percent removal through sediment controls (such
as sediment basins or traps), or as a total site reduction
(incorporating consideration of sheet flow and diffuse runoff in
addition to discrete conveyances). However, EPA did not consider this
approach to be a viable regulatory option due to several factors. The
stochastic nature of rainfall and runoff makes verification of the
design standards difficult. In some cases, the nature of local rainfall
and runoff characteristics make it difficult to even design BMPs to a
specified performance level. In addition, site-specific soil conditions
greatly influence the amount of sediment mobilized during runoff
events, and the soil settling characteristics greatly influence the
performance of sediment controls. Designing an entire suite of erosion
and sediment controls for a site to perform to a specified level would
likely require the use of a computer model, which could add significant
costs with little assurance of increased effectiveness. Similarly,
monitoring to verify attainment of numerical requirements can also be
very difficult (see ``Discharge Monitoring,'' below) with little
demonstrated benefits. As a result, EPA did not consider numeric
pollutant control requirements a viable option.
In addition to establishing numerical requirements for the control
of sediment, EPA preliminarily considered establishing requirements for
removing fine-grained and slowly-or non-settleable particles contained
in construction-site runoff (such as turbidity). This option would
likely have relied primarily on chemical treatment of soils or
construction site runoff using polymers or coagulants such as alum in
order to prevent the non-settleable fractions of solids from being
transported off-site. EPA did not pursue this option due to the concern
over possible adverse environmental effects of widespread usage of
chemical or polymer treatment of soils and, therefore, does not present
costs, pollutant removals, or economic impacts associated with such an
option. However, EPA recognizes that at some sites use of chemical
treatment may be appropriate based on a site-specific determination.
The Agency solicits comment and data on the possible long-term
environmental effects associated with this option.
EPA also evaluated the inclusion of separate requirements for
controlling priority toxic pollutants, pesticides and pathogens in
construction site runoff. If these pollutants are present as a result
of construction activities themselves, the most appropriate means of
control is typically through the use of source control and pollution
prevention BMPs, which are already addressed in the existing NPDES
regulations through the MS4 permit requirements. The Agency has been
unable to identify any additional BMPs that are technically and
economically feasible for use at construction sites that would remove
these pollutants once they are in the water column. Therefore EPA does
not present costs, pollutant removals, or economic impacts associated
with such a separate option. Hence, EPA proposes to control the
discharge of any such pollutants that may be associated with
construction activity only to the extent that control of TSS will also
control these pollutants. EPA is, however, planning to conduct
additional sampling activities to evaluate the frequency of occurrence
and levels of these pollutants and their sources in construction site
runoff for the final rule. EPA solicits data and comments on the
frequency of occurrence and levels of pollutants found in construction
site runoff, as well as BMPs that can cost-effectively remove these
pollutants from runoff when present.
Discharge Monitoring
EPA considered the inclusion of monitoring requirements for
evaluating the effectiveness of erosion and sediment controls.
Monitoring of storm water discharges from construction sites could be
used to evaluate the effectiveness of individual sediment controls
(such as sediment basins), or monitoring the receiving water above and
below construction sites could be used to monitor the effects of an
entire site on ambient water quality. Monitoring requirements could be
incorporated with any of the previously discussed regulatory options
considered. Since EPA's preferred approach for addressing construction
site storm water does not rely on the performance of individual
sediment controls but rather on the combined performance of a suite of
erosion and sediment controls, monitoring the effectiveness of
individual controls is not appropriate. Monitoring the effectiveness of
the overall erosion and sediment control requirements specified in
today's proposal would be very difficult at the majority of
construction
[[Page 42659]]
sites. In order to demonstrate that the erosion and sediment control
provisions at the site are achieving a stated overall percent reduction
in sediment discharge would likely require monitoring of every
discharge point on the site, or monitoring the receiving water above
and below the construction site. The high degree of variability in site
parameters, regional and site-specific rainfall, and erosion and
sediment control effectiveness would, in all likelihood, make
specification of standard storm water monitoring requirements
impractical for a national regulation. The constantly-changing state of
construction sites due to the action of construction equipment would
present significant challenges in terms of monitoring equipment set-up
and maintenance. The stochastic nature of storm events would likely
require a dedicated staffing effort on the part of the construction
site operator in order to ensure preparedness of the sampling equipment
for capturing runoff events. In addition, many sites discharge to an
existing storm drain system, making monitoring of the receiving water
infeasible. All of these factors would add significant expense to the
construction process, with little or no added assurance in the
effectiveness of control measures or expected environmental benefits.
As a result, EPA is not including discharge monitoring with today's
proposal. Permitting authorities may include discharge monitoring
requirements in permits, where it may be practical to specify sampling
and monitoring procedures that are appropriate for local conditions.
2. Overview of Regulatory Options: Certification and Inspection
During the Agency's outreach activities, EPA received many comments
that an effluent guideline was unnecessary for sites covered by the
NPDES Phase I storm water regulations, and untimely for sites that
would be covered by the Phase II requirements. These commenters
believed that the erosion and sediment control requirements currently
being established through best professional judgement by the permitting
authorities are appropriate in that they can be more effectively
tailored to regional and local conditions and respect traditional State
and local authority over land use management. Some of the commenters
stated, however, that implementation of these State and local
requirements is not uniform. These commenters expressed concern that
State and local government resources are insufficient to provide
compliance monitoring on a timely basis, particularly where inspections
by government officials are the primary mechanism for ensuring that
controls are installed and maintained. As a result, according to this
view, the effectiveness of the program hinges on the amount of
attention and oversight provided by the operator, and the knowledge and
training that the operator has received.
As a result of these comments, EPA considered an option that would
not establish ELGs at this time, but would rather require site
inspection, maintenance and reporting by site owners and operators in
order to improve confidence in the implementation and performance of
construction site erosion and sediment controls. This option would
include a maintenance record of site activities, including
certification that plans required by the permit meet all erosion and
sediment control requirements, certification that inspection,
stabilization and maintenance requirements have been satisfied, and
certification by a qualified professional that BMPs have been
adequately designed, sized and installed. This option would also
include a requirement that the operator or designated agent conduct
regular inspections to ensure that erosion and sediment control BMPs
are maintained in working order. The certification and inspection forms
would be retained on the site, and made available to the permitting
authority upon request. (See section XVIII of today's document for more
information on compliance paperwork and implementation.)
EPA developed this option as a mechanism that might improve
implementation of existing requirements. During Agency outreach
conducted in advance of today's proposal, some small entity
representatives commented that the problem with existing erosion and
sediment control requirements is not the lack of standards, but rather
the lack of adequate implementation and enforcement, including
education, bid solicitation and evaluation, proper design,
installation, and maintenance of BMPs, and inspection. One small entity
representative cited a recent article,\6\ which found that contractors
are not following good installation and maintenance practices, and
recommended more inspection and education be instituted to remedy the
problems, instead of additional substantive regulatory requirements.
EPA believes that one way to implement this recommendation is by
increasing site accountability for implementation to ensure that
corrective steps are taken as appropriate to ensure that practices
perform as designed. For example, inspection of perimeter silt fences
can identify sections in need of repair or replacement to ensure
sediment containment. Because this option is not linked to specific
levels of performance, but applicable to any requirements that are
established by the permit writer, EPA believes that it may be
appropriate for sites between one and five acres as well as for sites
of five acres or more. This option is proposed today for all sites of
one acre or more as Option 1, and would amend the NPDES permit
regulations at 40 CFR 122.44. See section X for a description of the
options proposed. EPA also recognizes that this option may impose
disproportionate costs on small operators who may have to rely on
outside consultants to perform certifications and inspections. One way
to reduce overall burden, including burden on small operators, while
covering the majority of disturbed acreage would be to limit the scope
of this option to sites of 5 acres or more. This would establish
certification and inspection requirements for 80 percent of the
disturbed acres. EPA thus solicits comment on limiting the scope of
this option to sites of five acres and above. Under this approach,
sites below 5 acres would continue to be governed by certification and/
or inspection requirements based on the BPJ of the permitting
authority.
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\6\ Robert G. Paterson, ``Construction Practices: The Good, The
Bad and the Ugly.'' Article no. 60 in The Practice of Watershed
Protection. Center for Watershed Protection, Ellicott City, MD,
2000. Available at http://www.stormwatercenter.net.
---------------------------------------------------------------------------
3. Overview of Regulatory Options: Continued Reliance on State and
Local ESC Programs
EPA is also proposing an option under which no additional national
regulations would be established at this time. Rather, EPA would
continue to rely on existing State and local programs to establish
appropriate sediment and erosion control requirements for permitted
construction sites, either on a BPJ basis or in accordance with
applicable regulations, ordinances, land use plans, etc. Under this
option, EPA could provide additional support for training and education
of construction and development operators, municipalities and State
regulators, in order to improve the effectiveness of existing programs.
This would build on the existing regulatory framework by preserving
State and local flexibility to tailor specific requirements to regional
and local conditions while at the same time benefitting from enhanced
technical
[[Page 42660]]
assistance and the latest information about emerging ESC technologies
and their effectiveness. This option is being proposed as Option 3.
4. Overview of Regulatory Options Considered: Long-Term Storm Water
Management
EPA evaluated several regulatory options for control of long-term
storm water discharges from development projects. These options are
designed to control the discharge of sediment, storm water and other
pollutants from sites after construction is completed. EPA specifically
considered numerical design standards for the removal of specific
pollutants (e.g., 80 percent TSS removal), limitations on post-
development flows (e.g., maintain peak flows at pre-development
levels), and BMPs to address thermal loadings to sensitive cold water
streams. EPA is not proposing any of these options today. The choice of
such controls, whether at a specific site or through regional storm
water management infrastructure, has historically been left to State
and local governments. These governments use a variety of regulatory
and non-regulatory programs (such as land use planning) to address
post-construction storm water flows in order to protect infrastructure
and achieve local resource goals. A summary of existing State programs
is included in the rulemaking record. Some States and municipalities
rely on traditional approaches, such as retention ponds and
infiltration basins. Other States and municipalities are pursuing
approaches that will encourage regional planning, lower impact
development, and other progressive programs to reduce not only the
pollutant run-off from the site, but to protect receiving streams from
the intensity of runoff that has accompanied urbanization. Many of
these approaches do not lend themselves to uniform standards, but
require integration with land use decisions and site design. EPA
supports these approaches, and does not want to limit the flexibility
that can be afforded at the local level while advances are being made.
Moreover, the options EPA explored for a national ELG would have been
very expensive if calculated on a total industry cost basis. Given the
variety of approaches being attempted across the country and the
expense of imposing uniform post-construction controls, EPA considers
it inappropriate to propose an ELG for long-term storm water management
at this time. Instead, EPA has decided to confine the proposed ELG to
controls on discharge of pollutants associated with construction
activity during the active construction phase, and to maintain the
traditional reliance on State and local programs to control long-term
storm water management. At the same time, EPA is concerned that States
and municipalities be provided the tools to assess the variety of
practices that are available today for long-term storm water
management. Much of the technical data that EPA collected in evaluating
these options will be made available in the rulemaking record.
X. Determination of Best Practicable Control Technology Currently
Available (BPT), Best Conventional Pollutant Control Technology (BCT),
Best Available Technology Economically Achievable (BAT), and New Source
Performance Standards (NSPS)
As discussed in section III.D of today's document, in the
guidelines for an industry category, EPA defines BPT effluent limits
for conventional, toxic (priority), and non-conventional pollutants for
direct discharging facilities. For the BPT cost-reasonableness
assessment in today's proposal, EPA used the total pounds of TSS
removed.
A. Rationale for Selected BPT Option
EPA estimates that construction sites annually discharge 80 million
tons of TSS into the surface waters of the United States. As a result
of the quantity of pollutants currently discharged directly to the
nation's waters and the adverse environmental effects of these
discharges (see section VIII.B of today's document), EPA determined
that there may be a need for BPT regulation for the construction and
development category.
At the same time, EPA recognizes that many States are examining the
permit requirements they are establishing in light of their experience
with the storm water program to date. EPA's estimates of pollutant
discharges today are significantly lower than estimates at the time EPA
issued the CGP. EPA is therefore co-proposing not to establish BPT
requirements for the C&D category, but to allow and encourage fuller
implementation of the current storm water program. This co-proposal
takes two forms, one in which EPA essentially codifies the inspection
and certification provisions discussed in section IX (hereinafter
called Option 1), and one in which EPA does not amend the national
storm water regulations at this time, but instead continues to rely on
BPJ requirements tailored to regional and local conditions as
determined by the permitting authority (hereinafter called Option 3).
As one option, the Agency is proposing codification of the CGP with
inspection and certification as the basis for BPT (Option 2). EPA's
decision to co-propose BPT limitations based on this option reflects
the following primary factors: (1) The degree of effluent reductions
attainable, (2) the total cost of the proposed option in relation to
the effluent reductions achieved, and (3) the maturity of the NPDES
program as it pertains to construction activity at sites of 5 acres or
greater. EPA estimates that this option will reduce pollutant
discharges to waters of the United States by 22 billion pounds per year
at a cost of $505 million. EPA believes this option does not create
unacceptable deleterious non-water quality environmental impacts.
EPA has not identified a basis for formulating different BPT
limitations based on facility age, process or other engineering
factors. The most pertinent factors for establishing the limitations
are costs of the controls, the level of effluent reduction benefits
obtainable, and the current state of the NPDES program.
As described in section IX of today's document, EPA is proposing
this option for sites of five acres or more. EPA is not proposing to
establish effluent limitation guidelines for sites of less than five
acres at this time for the reasons described in section IX.
EPA is also considering the option (discussed in section IX) that
would codify the CGP without adding the inspection and certification
requirements. Although EPA believes that inspection and certification
requirements will help ensure the proper design, installation, and
maintenance of erosion and sediment controls, EPA recognizes that
including specific certification and inspection requirements in
national regulations is not the only way to accomplish this objective.
EPA could instead leave the establishment of such requirements to the
BPJ of the permitting authority, consistent with State and local
program requirements. Including specific certification and inspection
requirements in co-proposed Option 2 accounts for $65 million per year
of the $505 million per year cost of this option. EPA is interested in
minimizing recordkeeping and reporting burdens to the extent that
substantive performance is not jeopardized. EPA solicits comments on
less costly means of ensuring the performance of erosion and sediment
controls and the merits of leaving the establishment of specific
certification and inspection requirements to the BPJ of the permitting
authority. EPA solicits comment on the option of codifying the CGP
without adding specific national
[[Page 42661]]
certification and inspection requirements. Under this option,
Secs. 450.21(f) and (g) would be removed from the proposed rule
language, except the first sentence of Sec. 450.21(g)(1) which would be
retained.
B. BCT Determination
1. July 9, 1986 BCT Methodology
The BCT methodology, promulgated in 1986 (51 FR 24974), discusses
the Agency's consideration of costs in establishing BCT effluent
limitation guidelines. EPA evaluates the reasonableness of BCT
candidate technologies (those that are technologically feasible) by
applying a two-part cost test:
(1) The publicly-owned treatment works (POTW) test; and
(2) The industry cost-effectiveness test.
In the POTW test, EPA calculates the cost per pound of conventional
pollutant removed by industrial dischargers in upgrading from BPT to a
BCT candidate technology and then compares this cost to the cost per
pound of conventional pollutant removed in upgrading POTWs from
secondary treatment. The upgrade cost to industry must be less than the
POTW benchmark of $0.25 per pound (in 1976 dollars).
In the industry cost-effectiveness test, the ratio of the
incremental BPT to BCT cost divided by the BPT cost for the industry
must be less than 1.29 (i.e., the cost increase must be less than 29
percent).
2. Consideration of BCT Option
For today's proposed rule, EPA considered whether or not to
establish BCT effluent limitation guidelines for C&D sites that would
attain incremental levels of effluent reduction beyond BPT for TSS. EPA
was not able to identify a technically feasible, discrete addition to
the BPT technology that would achieve additional TSS reductions and
would be applicable nationally. For construction site erosion control,
additional conventional pollutant removals would require the use of
chemical treatments such as polyacrylamide (PAM) or alum. As described
in section IX.C of today's document, the Agency recognizes that these
treatments are used in some parts of the country, but has insufficient
information about the environmental effects of the treatments to
recommend requiring their use nationwide. Therefore, EPA did not apply
the BCT Cost Tests and is co-proposing that BCT be set equivalent to
BPT limitations (i.e., Option 2).
C. BAT and NSPS
EPA generally considers the following factors in establishing the
best available technology economically achievable (BAT) level of
control: The age of process equipment and facilities, the processes
employed, process changes, the engineering aspects of applying various
types of control techniques, the costs of applying the control
technology, economic impacts imposed by the regulation, non-water
quality environmental impacts such as energy requirements, air
pollution and solid waste generation, and other such factors as the
Administrator deems appropriate (section 304(b)(2)(B) of the Act). In
general, the BAT technology level represents the best existing
economically achievable performance among dischargers with shared
characteristics. In making the determination about economic
achievability, the Agency takes into consideration factors such as
plant closures and product line closures. Where existing wastewater
treatment performance is uniformly inadequate, BAT technology may be
transferred from a different subcategory or industrial category. BAT
may also include process changes or internal plant controls which are
not common industry practice.
EPA considered the same option for BAT as discussed under BCT. The
Agency is unaware of any additional technically feasible and
economically achievable technologies for the removal of toxics (i.e.,
priority metals and organic chemicals) and non-conventional pollutants
under BAT beyond those considered for BPT. As discussed in section IX.C
of today's document, EPA initially considered the use of chemical
treatment of soils or the addition of polymers (such as PAM) or
coagulants for the removal of toxics and non-conventional pollutants.
However, due to the concern over the unknown environmental effects of
widespread usage of such treatment, EPA did not give this option
further consideration. EPA is co-proposing BAT limitations equivalent
to BPT (Option 2).
When developing NSPS, EPA generally considers that new facilities
have the opportunity to incorporate the best available demonstrated
technologies including process changes, in-plant controls, pollution
prevention, and end-of-pipe treatment technologies.
The NSPS co-proposed in today's rule would apply to new sources as
defined in Sec. 450.11. EPA proposes to define ``new source'' for
purposes of part 450 as any source of storm water discharge associated
with construction activity that results in the disturbance of at least
five acres total land area that itself will produce an industrial
source from which there may be a discharge of pollutants regulated by
some other new source performance standard elsewhere under subchapter
N. (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 not itself constitute a ``new
source'' unless the results of that construction would yield a ``new
source'' regulated by other new source performance standards. For
example, construction activity that is intended to build a new
pharmaceutical plant covered by 40 CFR 439.15 would be subject to new
source performance standards under Sec. 450.24.
EPA also seeks comment on whether no sources associated with C&D
activity should be deemed ``new sources.'' EPA may decline to establish
NSPS on the grounds that construction activity itself is outside the
scope of those activities intended to be covered by CWA section 306.
(``The term `new source' means any source, the construction of which is
commenced * * *'' 33 U.S.C. 1316(a)(2)(emphasis added)). Because EPA
has co-proposed to set NSPS equivalent to BPT, the Agency expects that
this would not result in any substantive increase or decrease in the
limitations imposed on any C&D activity.
EPA's proposed approach to defining ``new sources'' is based
largely on the structure of the CWA. Under the CWA, a source may not be
a ``new source'' under section 306(a)(3) unless there is or may be a
discharge of pollutants from the constructed facility. A discharge of
pollutants means an addition of any pollutant to navigable waters from
any point source, i.e., any discernible, confined and discrete
conveyance such as a pipe, ditch or channel. See CWA section 502(12) &
(14). Section 306(b) of the CWA itself includes a list of industries
for which EPA was directed to address with NSPS. EPA proposes to treat
all sources from which there may be a discharge associated with
construction activity disturbing five acres or greater that will result
in a ``new source'' as ``new sources'' themselves.
There may be situations when a newly-constructed direct discharging
point source would fall within an industrial category or subcategory
for which EPA has not promulgated NSPS; In that case, the discharge
associated
[[Page 42662]]
with the construction activity would be subject to BPT limitations
outlined in Sec. 450.21. Substantively, these limitations are identical
to those imposed on ``new sources'' under this proposed rule.
EPA is interested in any comments on these, or other possible
definitions of new source in this rule and is especially interested in
comments regarding EPA's legal authority to take either of these
approaches, the environmental benefits of these approaches and the
potential implications these approaches may have on administration of
the NPDES permit program.
D. Summary of Provisions in Today's Proposed Rule
The provisions in today's proposed rule are discussed
programmatically rather than in the order of the numbered options.
1. General Provisions and SWPPP Preparation
Option 2 in today's proposal includes a number of specific
provisions for preparation of Storm Water Pollution Prevention Plans
(SWPPPs) based principally on EPA's current Construction General Permit
(CGP). EPA is also proposing some additional provisions for inclusion
in SWPPPs.
Options 1 and 3 do not include specific provisions for preparation
of a SWPPP. However, under these options sites would continue to be
governed by existing permit requirements. All individual permits, EPA-
issued general permits, and most State-issued general permits for
discharges associated with construction activity five acres of greater
require the preparation of a SWPPP or similar pollution prevention
documentation.
The CGP requires owners and operators of construction sites subject
to regulation to prepare a SWPPP that, among other things, describes
the BMPs to be selected to control runoff during the land-disturbing
phase (erosion and sediment controls). While the SWPPP terminology is
used in EPA-issued CGPs, States need not use the SWPPP terminology.
Instead, States may require alternate documents that are equivalent to
SWPPPs. Examples include erosion and sediment control plans, storm
water management plans, or other documents. EPA has conducted an
evaluation of State-level erosion and sediment control regulations, and
found that the majority of States include provisions equivalent to
those contained in the EPA CGPs. As a result, the requirements co-
proposed under Option 2 today can be incorporated into SWPPPs, or
alternate documents that are equivalent to a SWPPP, as long as these
documents address all of the provisions contained in today's proposal.
The requirements co-proposed today do not preclude permitting
authorities and State, County and Municipal erosion and sediment
control regulations or ordinances from including additional or more
stringent requirements, nor do they replace existing requirements that
are more stringent.
Section 450.21(d) contains the requirements for preparing a SWPPP
under Option 2. Explanations are provided below for selected
provisions.
Section 450.21(d)(1). Narrative description of the
construction activity. Although not an explicit requirement, EPA
presumes that any individual activity on the site that will result in a
disturbance of more than 1,000 square feet of land will be treated as a
``significant'' disturbance of soils and will be described in the
SWPPP.
Section 450.21(d)(2). General location map and site map.
In most cases, a site drawing prepared along with the erosion and
sediment control plan is appropriate. The site map shall be of
sufficient scale and detail to allow easy identification of individual
erosion and sediment controls and storm water BMPs, as well as
delineation of drainage pathways. In many jurisdictions, local agencies
specify a map scale for preparation of site drawings.
Section 450.21(d)(3). Description of available data on
soils present at the site. This type of information may be obtained
from soil surveys conducted during the initial stages of project
formulation, which may be needed for evaluating the engineering
properties of soils. Information of this type might also be collected
during initial investigations of a site, commonly referred to by the
industry as ``due diligence'' procedures or a ``Phase I'' or ``Phase
II'' environmental site assessment.\7\
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\7\ The phases referred to in this instance describes a step in
an environmental site assessment (ESA) process, not the NPDES
``Phase I'' of ``Phase II'' storm water regulations. ASTM
International (formerly known as the American Society for Testing
and Materials) has published recommended ESA procedures as standard
no. E1527-96. http://www.astm.org
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Section 450.21(d)(4). Description of BMPs to be used to
control pollutants in storm water discharges during construction. The
operator may reference a State erosion and sediment control design
manual used to design BMPs as an abbreviated method for a fuller
description of the BMPs in the SWPPP. Such references should cite
specific BMP references and/or specifications in the manual.
Section 450.21(d)(5). Description of the general timing
(or sequence) in relation to the construction schedule when each BMP is
to be implemented. Although approximate dates are useful, they are not
necessary. General descriptions are acceptable. For example, one might
describe an installation of a BMP as follows: ``sediment basins will be
installed prior to initial clearing and grubbing of the site.''
Section 450.21(d)(6). Estimate of the pre-development and
post-construction runoff coefficients of the site. Estimates of runoff
coefficients may be determined by using a number of readily available
resources, including models such as ``Urban Hydrology for Small
Watersheds, Technical Release 55 (TR-55)'' and documents such as
``Hydrology, Section 4, National Engineering Handbook (NEH-4),'' both
published by USDA/Natural Resources Conservation Service (NRCS). In
addition, there are a number of commercial software packages that may
also be used to estimate these parameters.
Section 450.21(d)(8). Delineation of SWPPP implementation
responsibilities. The SWPPP must describe who is responsible for
implementation of the controls described in the SWPPP.
Section 450.21(d)(9). Any existing data that describe the
storm water runoff characteristics of the site. Include any existing
data that describe the quality of any discharges of storm water from
the site. This does not require the permittee to collect additional
data.
It is important to note that the above requirements for SWPPP
preparation are in addition to any requirements contained in other
Federal, State or local regulations. Permittees should always consult
permit authorities to obtain all requirements related to SWPPP
preparation. In addition, Sec. 450.21(e) would require periodic
updating of the SWPPP to address changes in activities that may require
updating of the erosion and sediment control provisions for the site.
Examples where updates may be needed include significant changes in the
construction schedule or changes in the nature of construction
activities. If periodic inspections indicate that the selected erosion
and sediment controls are not effective in controlling pollutant
discharges from the site, the revision of the SWPPP may be necessary.
It is the responsibility of the permittee to keep the SWPPP current.
[[Page 42663]]
2. Design and Installation of Erosion and Sediment Controls
Under all three options, permits would require, at a minimum,
compliance with any applicable State and local erosion and sediment
control requirements. Under Option 2, the selection, design and
implementation of these controls would need to also comply with the
national effluent guidelines in 40 CFR 450.21. Under Options 1 and 3,
the selection, design and implementation of these controls would be
governed by BPJ-based permit conditions established by the permit
authority and tailored to regional or local conditions. In practice,
many of the same control technologies may be used under all three
options, though the design and performance could vary significantly in
some locations.
The erosion and sediment control provisions of Option 2 rely on
implementation of a range of BMPs, as well as a design-based standard
for sediment basins. This standard is different from many traditional
effluent guidelines in that it does not establish end-of-pipe discharge
limitations or performance standards for storm water runoff from
construction sites, but instead establishes minimum criteria for
erosion and sediment control selection, design, installation and
maintenance. The design standard is based primarily on minimizing
sediment generation and transport through the use of effective erosion
controls, and secondly on controlling sediment discharge through the
use of effective sediment controls. Due to the high degree of
variability in site parameters, regional and site-specific rainfall,
and erosion and sediment control effectiveness, Option 2 does not
contain numerical discharge standards or discharge monitoring
requirements. Instead, this option relies on adherence to established
erosion and sediment control principles and demonstration of effective
design, installation and maintenance through regular inspection and
certification.
Although Option 2 does not contain monitoring provisions,
permitting authorities may require monitoring of construction site
runoff or receiving waters to gauge performance. Examples of indicator
parameters that may be evaluated in order to evaluate the quality of
storm water discharged from construction sites include TSS, turbidity,
settleable solids, and suspended sediment concentration. (EPA-approved
analytical test methods for some of these parameters are listed in 40
CFR part 136.) In addition, permitting authorities may also utilize
numerical models to evaluate erosion and sediment control efficiency
and to evaluate sediment generation and delivery from construction
sites. Examples include empirical models such as the Revised Universal
Soil Loss Equation (RUSLE) or process-based models such as SEDCAD and
SEDIMOT II.\8\
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\8\ ``Predicting Soil Erosion by Water: A Guide to Conservation
Planning with the Revised Universal Soil Loss Equation (RUSLE).''
K.G. Renard, G.R. Foster, G.A. Weesies, D.K. McCool, and D.C. Yoder.
United States Department of Agriculture, 1997.
Warner, R.C. and P.J. Schwab, 1998. ``SEDCAD 4 for Windows 95 &
NT: Design Manual and User's Guide.'' Civil Software Design, Ames,
IA.
Wilson, B.N., B.J. Barfield, A.D. Ward, and I.D. Moore. 1984.
``A Hydrology and Sedimentology Watershed Model, Part I: Operational
Format and Hydrologic Component.'' Transactions of the American
Society of Agricultural Engineers 27(5):1370-1377.
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Under Option 2, construction site owners and operators would be
required to consider the use of a range of erosion and sediment control
BMPs when preparing SWPPPs for construction sites. EPA's preferred
approach is to first limit sediment generation and transport through
the use of effective site planning and erosion controls, and secondly
control sediment discharges through the use of effective sediment
controls. In addition, Sec. 450.21(c) would require implementation of
pollution prevention practices to prevent contamination of storm water
runoff with construction materials and litter and debris.
Section 450.21(a) would require that construction site owners and
operators include descriptions of general erosion and sediment controls
and BMPs in SWPPPs to retain sediment on site (to the extent
practicable), and to provide interim and permanent stabilization.
Stabilization measures may include establishment of temporary or
permanent vegetation, mulching, geotextiles, sod stabilization,
vegetative buffer strips, and protection of trees and mature
vegetation. This section also requires the SWPPP to contain a schedule
indicating when practices will be implemented. EPA recommends that all
controls be properly selected and installed in accordance with sound
engineering practices and, when feasible, manufacturer's
specifications.
In Option 2, EPA is requiring that owners and operators implement
sediment controls for all drainage areas of 5 or more acres. For
drainage areas of between 5 and 10 acres, smaller sediment basins or
sediment traps shall be used where attainable. For drainage areas of 10
or more acres, sediment basins or equivalent control measures shall be
installed where attainable. Where neither a sediment basin or
equivalent control is attainable, silt fences, vegetative buffer strips
or equivalent sediment controls are required. Runoff from undisturbed
site areas that is diverted around disturbed areas can be ignored when
designing sediment controls. Where attainable, sediment basins shall be
designed to provide storage for a 2 year, 24-hour storm, or
alternatively, 3,600 cubic feet of storage volume per acre drained. The
basin sizing is based on the area of the drainage that will have
vegetation removed and soils disturbed (i.e., if the 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 is directed around both the disturbed
area and the sediment basin, then the permanent storage volume can be
sized based on 13 acres). EPA recommends that sediment control outlets
be designed to provide a detention time at the design capacity of at
least 6 hours. In addition, permit authorities may require that the
basins be designed to pass larger runoff events safely, and may require
the use of an emergency spillway, pursuant to state and/or local
authority.
EPA encourages permittees to utilize improved sediment basin
designs that incorporate features such as baffles and outlet structures
such as rock or fabric filters surrounding risers, siphoning outlets,
and using surface skimmers and floating weirs. The use of these
practices may significantly improve the performance of sediment basins
in certain cases. In addition, all basins should be designed by a
qualified engineer and local regulations regarding impoundment design
should be consulted.
Proposed Sec. 450.21(h) would require site owners and operators to
provide temporary and/or permanent stabilization of exposed soil areas
on construction sites. Exposed soil areas and slopes must be stabilized
as soon as practicable, and in no case more than 14 days after
construction activity has temporarily or permanently ceased on any
portion of the site. Where construction activity has temporarily ceased
on a portion of the site and earth-disturbing activities will be
resumed within 21 days, stabilization is not required on that portion
of the site. Time limits for stabilization may be extended where
compliance is impractical due to snow cover, frozen soil, or other
factors. Temporary or permanent erosion control measures include
planting of vegetation, sodding, mulches, bonded fiber matrices,
binders and tackifiers, polymers, and rolled
[[Page 42664]]
erosion control products. Exceptions are provided for low rainfall
areas and where stabilization is temporarily impracticable.
3. Inspection and Certification Provisions
Under all three options, permits would generally specify inspection
and/or other requirements to ensure compliance. Under Option 3, these
requirements would continue to be based on State and local ESC programs
and the BPJ of the permitting authority. Both Options 1 and 2 would
require a variety of site erosion and sediment control inspection and
certification requirements, including inspections every 14 days and a
final site inspection and certification. The provisions in each option
are roughly equivalent, although each would be codified differently in
the regulations. Under Option 3, any inspection and certification
requirements would be based on any applicable State and local ESC
programs and the BPJ of the permitting authority.
In Option 1, part 122 would be amended to add conditions applicable
to storm water permits for construction activity. Section 122.44(t)(1)
would require a permittee (or designated agent) to maintain a site log
book to track the implementation of erosion and sediment controls and
other actions required by the permit. The analogous provision in Option
2 is at Sec. 450.21(f). Any format for the site log book could be used,
as long as the specific provisions listed in the regulation are
addressed. EPA plans to provide guidance on a recommended format for
the site log book at the time of promulgation if EPA ultimately
promulgates inspection and certification requirements. EPA solicits
comments on the log book format.
Option 1 would also amend Sec. 122.44(i)(4) to exclude construction
sites subject to ELGs from discharge monitoring requirements, for the
reasons described in section IX of today's document. Permit authorities
would retain discretion to set monitoring requirements for construction
site discharges on a case-by-case basis.
Options 1 and 2 would also require periodic inspection and
certification of various provisions. This is embodied in proposed
Sec. 122.44(t)(2) in Option 1, and Secs. 450.21(f) and (g) under Option
2. The certification, either by the permittee or designated agent (as
described below) would be an assurance by the certifying official that
the various provisions concerning BMP design, installation and
maintenance are occurring on a regular basis in order to assure
effectiveness of the selected erosion and sediment controls. The
permittee or designated agent would not be required to certify as to
the performance of selected controls, but rather that the controls were
designed and installed according to the provisions required in the
permit and that regular maintenance activities are occurring. In some
States and municipalities, similar inspection systems are already being
employed, and EPA believes that these systems would generally be in
conformance with Options 1 and 2. The Agency requests comment on
whether the proposed inspection requirements are compatible with
existing State and local ESC inspection systems.
EPA recommends that these inspections be conducted by a Certified
Professional in Erosion and Sediment Control (CPESC),\9\ licensed
Professional Engineer (PE), or other qualified professional with
training in erosion and sediment control principles and practices.
However, since there will be a large number of inspections required to
cover all construction sites nationally and there is only a limited
number of certified professionals available, EPA is not requiring that
these inspections be carried out by a licensed or certified
professional. The individual conducting the inspections should have
adequate training and a thorough understanding of the erosion and
sediment control requirements for the site, as described in the SWPPP.
EPA envisions that in most cases, and particularly for larger projects,
the inspection and reporting requirements will be carried out by the
same consulting firm(s) or prime contractor(s) that provided the
initial site design, engineering drawings, SWPPP preparation, and
construction supervision for that project. However, the permittee may
make other arrangements to accomplish the inspection and reporting
requirements, such as self-inspection and self-certification.
---------------------------------------------------------------------------
\9\ The CPESC training program is sponsored by the International
Erosion Control Association (http://www.ieca.org) and the Soil and
Water Conservation Society (http://www.swcs.org ).
---------------------------------------------------------------------------
It is important to note that compliance with the proposed
inspection and reporting requirements would be the responsibility of
the permittee. Although a subcontractor, consultant or third-party
certification firm may be employed by the permittee to conduct the
actual inspections, any discrepancies or violations noted would be a
violation of the site owner or operator's storm water permit and
corrective measures would be the responsibility of the permittee. EPA
would not hold subcontractors or consultants who are providing
inspection and certification services to permittees responsible for
permit violations. The site log book would be the official record of
inspection and maintenance activities, and a copy should be maintained
by the site owner or operator in the event of a change in the entity
providing the inspection mechanism (for example, if a developer changes
subcontractors following the completion of initial grading).
The site log is intended to serve multiple purposes. The first, and
most important, is as a planning tool for the permittee and a means of
tracking erosion and sediment control activities, including
maintenance. The second is a tool for permitting authorities to gauge
compliance with regulations and to aid enforcement activities. As such,
it is in the best interest of all parties involved for the permittee to
maintain a copy of the site log book and other documents required by
the permit (e.g., a SWPPP) on-site, and to allow access to this
information by the permitting authority. Since members of the public
may also have an interest in the compliance related information
documented in the site log book, EPA recommends that a copy be
maintained in a public location (such as a library or courthouse), or
that a copy be made available to the public upon request within a
reasonable period.
4. Maintenance
In Option 2, construction site owners would be required to remove
accumulated sediment from sediment traps and ponds when design capacity
has been reduced by 50 percent.
XI. Methodology for Estimating Costs
In developing today's proposed rule, EPA has taken a model approach
to estimating the costs of compliance.\10\ Costs were estimated that
are expected to be borne by two distinct entities: (1) Costs that are
expected to be directly borne by the construction and development
category for BMP installation and administrative functions and the
consumers of the construction projects; (2) costs that are expected to
be borne by permitting authorities for implementing the provisions of
today's proposal. All costs presented are incremental over the costs
already being borne by these entities due to existing Federal, State
and local regulations governing erosion and sediment control.
---------------------------------------------------------------------------
\10\ A cost model identifies variables and uses equations to
estimate costs. The model is used to estiamte costs before and after
implementation of the proposed rule.
---------------------------------------------------------------------------
[[Page 42665]]
In estimating costs of today's proposal to the C&D category, EPA
has categorized costs as capital costs and administrative costs. The
following components were included in EPA's costing analysis: (1)
Capital costs, including design, installation (including materials and
labor), maintenance, profit and overhead; and (2) administrative costs,
including SWPPP preparation, inspections, installation and maintenance
certification, permit submission, and records retention. In developing
cost estimates for permit authorities, EPA estimated administrative
costs to revise general permits to incorporate the effluent guidelines
requirements.
Using NRI and Census data, EPA estimates that the C&D category
converts approximately 2.2 million acres of land from rural to urban
use in the nation each year. This is based on NRI data for the years
1992 and 1997. Although the use of NRI data is likely to overestimate
the amount of new acreage that is actually developed (as opposed to
just being included in the new urban land use base), EPA still chose to
utilize NRI data for the following reasons: (1) NRI data provides a
consistent and comprehensive picture of broad land use changes for the
United States; (2) NRI data is presented at the watershed scale,
allowing subsequent evaluation of environmental impacts and benefits in
a consistent manner; and (3) NRI data allows evaluation of recent as
well as historical land use changes, facilitating the estimation of
trends.
For all of the environmental and economic assessments prepared for
today's proposal, EPA elected to use a single year's developed acreage
as the basis for its estimations, and to present all cost data on an
annual basis. To help establish what trends exist in new urbanizing
areas, EPA evaluated published sources to define what an urbanized area
contains in terms of various land uses, and used these land uses to
apportion annual construction activity into different industries based
on developed land area. The Agency formulated characteristics for four
industries based on Census data: single-family housing construction,
multi-family housing construction, manufacturing and industrial
building construction, and commercial and institutional building
construction. A breakdown of estimated construction acreage by sector
can be found in Chapter four of the Development Document.
EPA's analysis indicates that between 1999 and 2000 there were
approximately 42,000 acres of new urban road and highway construction
in the U.S. (Highway Statistics 1999 and Highway Statistics 2000,
Federal Highway Administration). This constitutes less than 2 percent
of the total new developed acreage in the U.S. Because new road and
highway construction is such a small percentage of annual development
acreage, EPA did not conduct a separate analysis of costs of the
proposed rule for highway, street, bridge and tunnel construction. EPA
requests comment on this approach, as well as data on the costs of the
proposed rule for highway, street, bridge, and tunnel construction and
any special implementation challenges that may be found by this sector.
A. Costs to the Construction and Development Category
EPA used a model site approach to develop estimates of costs of the
rule to the C&D category. Using the data on development trends within
each industry as a starting point, EPA estimated a distribution of
construction site sizes for each of the four industries based on census
data and on data collected during the NPDES Phase II rulemaking. The
Phase II rulemaking data identify distributions of site sizes within
each industry based on construction permits issued in 14 urbanizing
municipalities. From this data, EPA was able to develop the national
distribution of construction activity by sector and size. Detailed
results of this analysis can be found in Chapter four of the
Development Document.
EPA developed a series of model construction sites for each of the
size strata and identified erosion and sediment control practices
required under current State CGP baseline conditions (i.e. compliance
with current NPDES regulations). The Agency identified costs of these
controls using unit cost references commonly used by the industry to
estimate their construction costs for bids (R.S. Means Co.,
Construction Cost Manual, 2000) as well as data from the literature.
EPA also added costs for design, O&M, as well as regional cost
adjustments. EPA then applied O&M costs, design costs, and profit and
overhead, using costs and frequencies based on standard industry
practice. Administrative costs for activities such as permit
application and records retention were also estimated. Following
development of regulatory options, EPA estimated the increase in costs
for erosion and sediment controls due to factors such as increased
sizing (for BMPs such as sediment basins), increased frequency of
application (such as temporary seeding and mulching), as well as
increased administrative costs for factors such as inspection and SWPPP
certification. By comparing these costs to the baseline costs, EPA was
able to estimate the incremental costs of various regulatory options.
(See Chapter 7 of the Development Document for a more detailed
discussion of the construction control model.)
B. Costs to Permit Authorities
EPA identified additional administrative costs to permit
authorities for incorporating the proposed requirements into
appropriate general permits. EPA views the permit authorities (EPA
regional offices and States) as the main implementors of effluent
guidelines and NPDES regulations. The Agency expects that States will
integrate the proposed requirements into their respective erosion and
sediment control general permits. However, many States rely on local
governments and quasi-governmental agencies (e.g., conservation
districts) as partners in implementing their ESC programs. EPA
acknowledges that the administrative costs it has estimated will likely
be shared among a broader range of entities than just States. (See
chapter 7 of the Development Document for a more detailed discussion of
the administrative costs to permit authorities.)
In estimating the total costs to administer today's proposed
effluent guidelines requirements, EPA has built on its earlier work
related to the Phase II NPDES storm water rule (``Economic Analysis of
the Final Phase II Storm Water Rule,'' EPA-833-R-99-002, October 1999)
in order to estimate incremental costs of effluent guidelines
implementation. EPA has also built on regulatory program development
costs identified in earlier effluent guidelines (such as the proposed
rule for Concentrated Animal Feeding Operations, 66 FR 2960, January
12, 2001) where they are similar in nature and scope. In estimating the
baseline administrative costs, EPA has assumed 100 percent
implementation of existing Phase I and II NPDES storm water
regulations. Applications for permits for discharges of pollutants
associated with construction activity disturbing at least one acre but
less than five acres are not required before March 10, 2003. Hence,
although these permits are not required under Federal regulations at
this time, they will be when EPA takes final action on today's proposal
in 2004.
[[Page 42666]]
XII. 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
closures, employment losses, and market changes, such as housing
prices. In addition, the report provides information on the impacts of
the proposal on sales and prices for residential construction. The
initial regulatory flexibility analysis (IRFA) supports EPA's
compliance with 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.
Today's document includes related sections such as the cost-
effectiveness analysis in section XIII, benefits analysis in section
XVI, and benefit-cost analysis in section XVII. 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 233 and 234), uses information from, and builds upon, the NPDES
Phase II rule economic analysis (op.cit.). In addition to building upon
the work completed for the Phase II rule, the C&D economic analysis
expands the Phase II economic analysis with, among others, an
environmental assessment, economic achievability analysis, barrier-to-
entry analysis, and benefit-cost analysis. In addition to CWA
requirements, EPA has followed OMB guidance on the preparation of the
economic analyses for Federal regulations to comply with Executive
Order 12866. See section XIX.D of today's document.
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 domestic output of goods and services produced in one year by the
U.S. economy. The construction sector directly contributes 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 has begun to slow relative
to previous highs in the 1990s. The United States has been affected by
global factors and events, that have led to temporarily reduced
consumer spending, but the adverse impacts on the construction and
development industry appear modest at this time. The Federal Reserve
money market policies to keep interest rates low, particularly mortgage
interest rates, have been a significant and positive force in light of
the economic factors impacting the economy. The most recent data
indicates consumer spending for new homes remains strong.
For the purposes of today's proposed rule, the Construction and
Development Category is comprised of industries that disturb land. The
category contains business establishments \11\ that are involved in
building, developing and general contracting (NAICS 233) as well as
heavy construction (NAICS 234). As a starting point, Table XII-1 shows
the number of business establishments in the C&D category in 1992 and
1997. 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 proposed rule would cover projects one
acre or more under Option 1, and 5 acres or more under Option 2 . See
section IV, Scope of Proposal, in today's document.)
---------------------------------------------------------------------------
\11\ The Census Bureau uses the term ``establishment'' to mean a
place of business. ``Employer establishment'' means an establishment
with employees.
---------------------------------------------------------------------------
Table XII-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
(Public Law 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, ``Land
Development,'' op. cit.)
Table XII-1.--Number of Employer Establishments in Construction and Development Industries, 1992 and 1997
----------------------------------------------------------------------------------------------------------------
Change
NAICS Industry 1992 number 1997 number (percent)
----------------------------------------------------------------------------------------------------------------
233, except 2331................... Building, developing, and 168,407 191,101 13.5
general contracting,
except land development
and sub-development.
2331............................... Land development and sub- 15,338 8,185 -46.6
development.
234................................ Heavy construction......... 37,180 42,557 14.5
235 \a\............................ Special trade contracting.. 14,864 19,771 33.0
-----------------------------------------------
Total.......................... ........................... 235,789 261,617 11.0
----------------------------------------------------------------------------------------------------------------
\a\ Includes NAICS 23593 (Excavation contractors) and 23594 (Wrecking and demolition contractors).
Sources: 1992 and 1997 Census of Construction; Economic Analysis.
[[Page 42667]]
Building upon Table XII-1, Table XII-2 shows the number of
establishments that could potentially be covered under the C&D proposed
regulation. From the total of about 262,000 establishments in 1997, EPA
subtracted about 62,400 establishments that are engaged in home
remodeling, and would not be subject to the proposed regulations. This
estimate is based upon a study by the Harvard University Joint Center
for Housing Studies (``Remodeling Homes for Changing Households,''
2001). The elimination of remodelers is based on the fact that
remodeling and renovation activities generally disturb less than one
acre of land, if any at all.
EPA also deducted 50,661 establishments that build one to four
houses. Given an average lot size of about 0.3 acres per house, EPA
assumes that a builder that builds between one and four houses per year
is unlikely to disturb one acre or more in a given year. The estimate
of the number of establishments building one to four houses was based
upon a study and report by the Census Bureau (``Construction Sector
Special Study Housing Starts Statistics,'' op.cit.). Some of the sites
built upon by these establishments would be covered by NPDES storm
water permits if they are located within a ``common plan of
development'' (i.e., a subdivision) that is at or above the regulatory
threshold. (This threshold is currently 5 acres under the Phase I rule,
and will become 1 acre under the Phase II rule in 2003.) However, the
Agency does not have information on the amount of houses that are built
within subdivisions, rather than on discrete lots, by these
establishments. EPA requests comment on its methodology for removing
remodelers and firms that do not disturb more than one acre of land
from the analysis.
Based upon these adjustments of the total number of establishments,
EPA believes that about 150,000 establishments would be covered under
Option 1. Although it is likely that fewer establishments would be
covered under Option 2, EPA has not made adjustments to account for
establishments that do not disturb more than five acres. The population
of establishments that would be covered after the adjustments that EPA
has made may also include subcontractors. Many, if not most of these
establishments also would not be covered by the proposed rule, because
they do not disturb land. However, the Agency has insufficient data to
make any further adjustments to the population of developers and
builders covered by the proposal. For example, no adjustments have been
made to account for establishments in the non-residential construction
or heavy construction industries that may disturb less than one acre of
land. EPA solicits comment on the Agency's estimate of the number of
establishments that would be covered under the proposal. For general
discussion, EPA will refer to the 150,000 establishments as the covered
population. As estimated from the data sources available, the actual
estimate is 148,556 establishments. EPA requests comment and any other
information available about the potentially covered population.
Table XII-2.--Number of Establishments Covered by the Construction and Development Proposed Regulations
----------------------------------------------------------------------------------------------------------------
Establishments
-------------------------------
NAICS Industry sector Percent of
Number total
----------------------------------------------------------------------------------------------------------------
2331....................................... Land development and subdivision... 8,185 5.5
23321...................................... Single-family residential building 31,615 21.3
construction.
23322...................................... Multi-family residential building 1,718 1.1
construction.
2333....................................... Nonresidential construction........ 44,710 30.1
234........................................ Heavy construction................. 42,557 28.7
235........................................ Special trade contracting.......... 19,771 13.3
-------------------------------
Total.................................. ................................... 148,556 100.0
----------------------------------------------------------------------------------------------------------------
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 co-proposed options. An
important methodology used in 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 result of the proposed
regulations. In theory, incremental compliance costs could 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 document. 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. EPA is making this report available
along with today's C&D effluent guidelines proposal.
For the technology-based construction and development effluent
guidelines, EPA is required under Title III of the Clean Water Act to
make a determination about the available technologies for BPT, BCT,
BAT, and NSPS. EPA is required by the Act to ensure that technologies
selected as the basis for BAT are economically achievable. EPA uses a
different economic test for NSPS, a ``barrier to entry'' test. This
test is typically applied to new sources or projects to determine if
the proposed regulation could pose a barrier to entry in terms of
starting a new project or business. The Agency typically uses a
methodology that analyzes the incremental compliance
[[Page 42668]]
costs of the rule in comparison to the total assets required to start a
new project or business. If these costs are excessive, then a barrier
to entry could be a problem for entrepreneurs considering new business
opportunities in the C&D category.
EPA used several broad cost components to estimate the compliance
costs in an engineering cost model (see the Technical Development
Support Document): ``hard'' compliance costs and ``soft'' compliance
costs. Hard costs are the incremental construction costs for controls
such as sediment basins. Soft compliance costs are the incremental
costs for planning, design, permits, and engineering and legal
services. Detailed information on the compliance costs is provided in
the Development Document.
EPA estimated the incremental compliance costs for the BMPs using
an engineering cost model that takes account cost factors such as labor
rates and material costs. In most of the economic analyses described
below, however, EPA has used weighted average national costs obtained
by multiplying the regionalized costs by the share of total projects
estimated to take place within each region of the country.
EPA estimated both the incremental compliance costs and the
economic impacts of each proposed regulatory option at the project,
establishment, 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 describe
each modeling effort in turn. 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 model projects for four industries:
single family residential; multi-family residential; commercial &
institutional building; and manufacturing & industrial building. The
models also included various construction project site sizes: 1, 3,
7.5, 25, 70, and 200 acres. In total, EPA developed 24 different model
projects (4 types of development or land uses, multiplied by 6 project
sizes) and used these models to assess the impacts of the proposed
regulations at the project level.
Each model project is assumed to be 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 a financial investment
and role 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
frequently 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.''
EPA requests comment about this economic modeling approach.
The model projects reflect the range of development type and
project scale seen in actual industry practice. The model project
characteristics were developed from the statistical data described in
section V of today's document, information distilled from academic
literature and industry publications, and information provided to EPA
in meetings with industry representatives. The model projects account
for all of the steps in a typical land development project.
Although EPA has developed regional compliance costs, there were
insufficient data available to develop model projects reflective of
specific geographic zones or real estate markets. For this reason, EPA
applied weighted average national costs to these models. The Agency
obtained some of the model project parameters from home builders and
developers in the mid-west region, so to some extent the model projects
may be more reflective of conditions in this general market area.
Land development and construction typically occurs in a series of
stages or phases. The model projects developed by EPA incorporate
assumptions concerning the costs and revenues incurred 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 legally subdivided parcel with finished lots ready for
construction.
(3) Construction. The developer-builder undertakes the actual
construction of the housing units. A substantial portion of this work
may be subcontracted out to specialty subcontractors (foundation,
framing, roofing, plumbing, electrical, painting, etc.). Marketing a
development generally 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 developed estimates of the project-specific costs and revenues
at each stage of project development in the baseline scenario. The
result is a cash flow analysis of the costs and revenues associated
with the project. 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).
[[Page 42669]]
EPA analyzed the impact of today's proposed rule by adding in the
regulatory costs at the appropriate stage of the project life cycle.
The regulatory cost impacts on the model projects were analyzed under
two alternative assumptions concerning cost pass-through. In the first
scenario, EPA assumed that the developer-builder can pass through all
of the incremental compliance costs associated with meeting the
proposed regulations to the final customer (e.g., the new home buyer,
consumers of public transportation services). Under this scenario, all
costs are assumed to be borne by the customer in the form of higher
prices for completed construction. In the second approach, EPA assumed
that the builder-developer can not pass through cost increases to the
buyer and therefore realizes a reduced profit on the project. In
general, EPA believes that builders do pass through regulatory costs to
customers, and this is supported by the academic literature and
industry publications. The analysis simulates the results under two
extremes in which consumers or industry absorb all of the cost impacts.
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 raw 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.
The models for residential construction firms are based on data from
the special Census report on the homebuilding industry. This source
provides the average value of construction, average employment, and
average number of housing starts for firms in various housing start
classes. Within each housing starts size class, EPA constructed balance
sheets and income statements by scaling published Dun and Bradstreet
(D&B) data presented for ``median'' firms (``1999--2000 Industry Norms
and Key Business Ratios,'' Dun and Bradstreet, 2000).\12\ The basic
approach was to calculate the ratio of key components of the balance
sheet and income statement to net sales, and then scale the value of
these components to the size of the model firm. For the commercial and
industrial building construction industries, EPA scaled the balance
sheet and income statement elements according to differences between
incomes for these C&D industries reported by the Census Bureau and
median incomes reported among firms sampled by D&B. EPA analyzed one
model firm for these industries since comparable data by starts size
class were not available.
---------------------------------------------------------------------------
\12\ The D&B data are based on a sample of firms with response
ratios that are greater for larger firms than for small firms.
---------------------------------------------------------------------------
To determine the annual compliance costs incurred by model
residential construction firms, EPA converted the costs per acre to
costs per housing start using estimates of the average lot size for new
home construction, and then multiplied these costs by the number of
housing units started. 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) the Gross Profit, (2) Current Ratio, (3) Debt to Equity
Ratio, and (4) Return on Net Worth. Industry publications cite these
financial ratios as particularly relevant to the construction industry
(Kone, ``Land Development,'' op.cit.; M. Benshoof, ``An Inside Look at
Builders'' Books,'' Housing Economics, National Association of Home
Builders, Washington, DC, 2001). Two of the ratios examined are based
on operating income (gross profit, return on net worth), and two are
based on the balance sheet statement (current ratio, debt to equity).
The impacts of the compliance costs were examined by calculating the
values of each ratio with and without the compliance costs. For this
analysis, EPA assumed zero cost pass-through, which is a worst-case
scenario in terms of describing the potential economic impacts on this
industry.
To determine the annual compliance costs incurred by commercial and
industrial construction firms, EPA first divided the total estimated
number of construction starts by the number of establishments to obtain
the average number of starts per establishment. To estimate the average
number of acres per start, the Agency reviewed industry cost data (R.S.
Means, 2000. ``Building Construction Cost Data, 58th Annual Edition,''
Kingston, MA) for representative projects. EPA estimated an average of
three acres per start, and then used this average to calculate the
average number of acres developed per establishment. The number of
acres developed per establishment was then multiplied by the regulatory
costs per acre to obtain the annual regulatory costs incurred per
establishment. As noted above, EPA examined the impact of these costs
by examining changes in financial ratios for the median-sized firm. To
do this, EPA scaled the financial data for the median firm drawn from
the D&B data to the Census median firm, using the median income from
each source as the scaling factor. EPA requests comment on the extent
to which basing the analysis on the median-sized firm will
appropriately capture impacts on smaller or larger firms.
3. Housing Market Impacts
EPA also developed models to assess the potential impacts of the
regulations on the national housing market. To analyze the impacts of
compliance costs on housing affordability, EPA estimated the level of
income that would be necessary to purchase the average priced new home
without the proposed regulation, and the change in income needed to
purchase the average priced new home under each of the proposed
regulatory options. The Agency then used income distribution data to
estimate the change in the number of households that would qualify to
purchase the average priced new home under each of the regulatory
options. In this way, EPA was able to determine the number of
households that may be priced out of the new housing market, assuming
that all prospective buyers were targeting the averaged priced new
home. The results of this analysis may be found in the Economic
Analysis.
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
[[Page 42670]]
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.
As these changes pass through the economy, they generate shifts in
production and employment. 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 the
impacts on national output and employment.
D. Results
1. Firm-Level Impacts
EPA has estimated the economic impacts of the proposal 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 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). However, EPA's review of the academic literature and its
discussions with industry officials indicate that most, if not all
costs, are passed through to the final consumer and are not absorbed by
firms in the industry.
The firm is the responsible entity for the installation of ESC BMPs
and 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. 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 XII-3 presents one economic indicator, firm closures, by
regulatory options and by industry (e.g., Multi-family Residential).
Table XII-3.--Firm Closures by Industry for the Regulatory Options: Zero Cost Pass-Through Assumption
(Number of firms, percent of total firms)
----------------------------------------------------------------------------------------------------------------
Single-Family Multi-family Commercial and Manufacturing
Option Residential residential institutional and industrial
(/%) (/%) (/%) (/%)
----------------------------------------------------------------------------------------------------------------
1. Self-inspection, certification, 1 acre or 4/0.01 1/0.02 11/0.03 2/0.03
more...........................................
2. Codification, self-inspection, certification, 13/0.02 3/0.07 43/0.11 7/0.09
5 acres or more................................
3. No regulation................................ 0/0 0/0 0/0 0/0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
EPA also estimated the number of potential jobs that could be lost
as a result of the proposal. Table XII-4 provides the number of
potential job losses by option and by industry.
Table XII-4. Job Losses by Industry for the Regulatory Options: Zero Cost Pass-Through Assumption
[Number of jobs, percent of jobs]
----------------------------------------------------------------------------------------------------------------
Single-Family Multi-Family Commercial and Manufacturing
Option Residential Residential Institutional and Industrial
(/%) (/%) (/%) (/%)
----------------------------------------------------------------------------------------------------------------
1. Self-inspection, certification; 1 acre or 34/0.01 12/0.03 162/0.03 43/0.03
more...........................................
2. Codification, self-inspection, certification; 145/0.04 61/0.17 604/0.11 133/0.09
5 acres or more................................
3. No regulation................................ 0/0 0/0 0/0 0/0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
EPA also estimated potential decreases in firms' profits. These
results are presented in Table XII-5 by regulatory options and by
industry. The potential changes in profits are in the range of a
decrease in profits of one percent or less.
Table XII-5.--Changes in Profits by Industry for the Regulatory Options: Zero Cost Pass-Through Assumption
[Percent of profits]
----------------------------------------------------------------------------------------------------------------
Single family Multi-family Commercial Industrial
Option (%) (%) (%) (%)
----------------------------------------------------------------------------------------------------------------
1. Self-inspection, certification; 1 acre or -0.23 -0.31 -0.17 -0.14
more...........................................
2. Codification, self-inspection, certification; -0.52 -0.95 -0.40 -0.32
5 acres or more................................
3. No regulation................................ 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
[[Page 42671]]
For additional information on EPA's analysis of the change in
financial position, see Chapters 4 and 5 of the Economic Analysis for
the methodology and analysis on estimating firm-level impacts.
2. Impacts on Governments
EPA has analyzed the impacts of today's proposed rule on government
entities. This analysis includes both the cost to governments for
compliance at government-owned construction project sites
(construction-related) and government costs associated with
implementation of storm water programs (administration costs). 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. Under this
assumption EPA estimates the following impacts:
Under Option 1, EPA estimates that State and local
governments would incur about $12 million in annual costs and the
private sector would incur about $114 million in annual costs. Of the
$12 million in annual costs to State and local governments, about $2
million would be incurred by small government entities, less than
50,000 population, and about $10 million annually would be incurred by
large government entities, greater than 50,000 population.
Under Option 2, about $50 million of annual incremental
costs would accrue to State and local governments.
Of the $50 million in costs accruing to State and local
government agencies, about $5 million per year would be incurred by
small government agencies, communities with less than 50,000
population, and about $45 million would accrue to large communities,
those with more than 50,000 population.
A subsidy or other complementary financing of these projects with
Federal or State grants or revolving funds could reduce the direct
impact on local taxpayers.
For administration costs, the analysis is based upon two elements
for construction storm water programs: (1) Incremental costs to
establish or modify programs, and (2) incremental costs to implement
the proposed options. Table XII-6 provides information on the costs to
establish or modify construction storm water programs. The program
elements to establish the proposed options may include, among other
program needs, those needed to revise State general permits. In
addition, the States, and to some extent local governments, may need to
provide basic program administration, education, public hearings, and
public notifications as appropriate. These incremental program elements
may be in place and may not be needed by all States or local
governments.
Table XII-6.--Annualized One-Time Incremental Costs to State and Local
Governments for Establishing or Modifying Construction Storm Water
Management Programs
------------------------------------------------------------------------
Total (year
Program element 2000 $
million)
------------------------------------------------------------------------
General permit development.............................. 0.30
Program administration.................................. 0.15
Education and information distribution.................. 0.01
Public hearings......................................... 0.07
Quarterly public notification........................... 5.80
---------------
Total............................................... 6.33
------------------------------------------------------------------------
The detailed analysis is available in its entirety in the Economic
Analysis.
3. Community-Level Impacts
EPA has estimated community-level impacts based upon the
incremental costs of the proposal 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 average price per house.
Table XII-7 shows the change by selected option in the price per house.
Table XII-7.--Change in Housing Prices for Selected Options
[100 Percent cost pass-through]
------------------------------------------------------------------------
Average price
increase per
Option house (year
2000 $)
------------------------------------------------------------------------
1. Self-inspection, certification; 1 acre or more....... 18
2. Codification, self-inspection, certification; 5 acres 97
or more................................................
3. No regulation........................................ 0
------------------------------------------------------------------------
Source: Economic Analysis.
The price increase per house that may be attributable to the
proposal compared to the average price of a new house in the U.S.,
currently about $250,900, is very small. For these costs, the average
monthly mortgage payment would increase by less than $5.00 per month.
4. Foreign Trade Impacts
As part of its economic analysis, EPA has evaluated the potential
for changes in U.S. trade (imports, exports) of construction and
development related goods and services. A significant component of the
U.S. construction and development 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. construction and development 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.
The 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 Facilities
EPA has conducted an analysis to assess the impacts on new firms
that choose to enter the C&D category. This analysis uses a method
called ``barrier to entry'' analysis. EPA examined the ratio of
compliance costs to current and total assets to determine if new market
entrants could find it more difficult to obtain construction loans to
start a project than would existing firms. The Economic Analysis
provides more complete information on the barrier to entry analysis. As
discussed in more detail in the Economic Analysis, this 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
more than likely need to meet the same requirement, and therefore would
not obtain a competitive advantage over new entrants.
From the barrier to entry analysis, annual incremental compliance
costs under Option 2 would comprise a maximum of 0.82 percent of the
current assets for the Multi-Family Residential
[[Page 42672]]
Building Industry. For the Commercial and Institutional Building and
Manufacturing and Industrial Building Industries, incremental
compliance costs comprise less than 0.5 percent of current assets. For
the Single Family Housing Industry, incremental costs comprise less
than 0.2 percent of current assets. These costs are small as a percent
of current assets. EPA believes that these costs pose no significant
barrier to entry for potential businesses and projects.
6. Social Costs
EPA's analysis of social costs for Option 2 contains four costs
components: (1) installation, design, and permitting costs; (2) O&M
costs; (3) government costs; and (4) deadweight loss. When summed,
these four cost categories comprise the total social costs for each
option.
For Option 2 (codify CGP, self-inspection, certification, 5 acres
or more), the total social costs of the proposal are about $505 million
annually (year 2000 $). EPA has conducted a social cost analysis for
each option. The Economic Analysis provides the complete social cost
analysis for the proposed regulation.
7. Small Business Impacts
Section XIX.C of today's document provides EPA's SBREFA analysis.
For purposes of assessing the economic impacts of today's rule on small
entities, ``small entity'' is defined by 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 XII-8 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
proposed options.
Table XII-8.--Small Business Analysis for Regulatory Options, 1% and 3% Revenue Tests, Assume Zero 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
----------------------------------------------------------------------------------------------------------------
Self-inspection and certification; 1 acre or 126 <0.01 42 <0.01
more...........................................
Codify CGP, self inspection, certification; 5 428 0.07 140 <0.01
acres or more..................................
No regulation................................... 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis.
XIII. Cost-Effectiveness Analysis
EPA has conducted a cost-reasonableness analysis that indicates
that the cost of this proposal for option 2 is about $0.01 per pound
for TSS. EPA customarily performs a cost-effectiveness (C-E) analysis
using toxic-pound equivalents. The pollutant removal calculations in
today's proposed rule are all based on TSS, a conventional pollutant.
The Agency does not have a methodology for converting TSS to toxic
pound equivalents for a C-E analysis.
XIV. Non-Water Quality Environmental Impacts
Under sections 304(b) and 306 of the CWA, EPA is to consider the
``non water quality'' environmental impacts when setting effluent
limitation guidelines and standards. EPA used various methods to
estimate the NWQI for each of the options considered for today's
proposed rule. For the purposes of today's proposal, the Agency
interprets the term ``non water quality'' impacts to mean environmental
impacts other than those related to surface water quality, and
therefore is including groundwater impacts in this section.
A. Air Pollution
EPA estimates that today's proposed rule would have no measurable
effect on air pollution because none of the proposed options (including
the ``no change'' option), 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.
B. Solid Waste
Generation of solid waste would not be substantially affected
regardless of the option selected because the majority of solid waste
generated at construction activities derives from wastage of materials
brought onto and used at construction sites. Likewise, for
redevelopment projects, the amount of solid waste generated, while
greater than the amounts generated at new developments, would not vary
regardless of the option selected (including the ``no change'' option).
C. Energy Usage
The consumption of energy as a result of today's proposed rule is
not expected to be measurably affected 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.
D. By-Products From BMPs
EPA projects that by-products from BMPs used during the
construction phase as a result of today's rule would not substantially
change the pollutant types or quantities generated. Pollutant sources
during the construction phase are primarily characterized by sediment
from the in-place soils (trapping and ultimate removal or repositioning
on the site), various constituents in excess concrete slurry and wash
water (these include high pH and solids, such as sand and the fine
particulate matter that comprise cement), and the possible residual
effects from soil amendments such as polyacrylamide (PAM).
XV. Environmental Assessment
A. Introduction
In its Environmental Assessment (see ``Supporting Documentation''),
EPA evaluated environmental impacts associated with the discharge of
storm water from construction activities. Construction and land
development activities can generate a broad range of environmental
impacts by introducing new sources of contamination and by altering the
physical characteristics of the affected land area. In particular,
these activities can result in both short- and long-term adverse
impacts to
[[Page 42673]]
surface water quality in streams, rivers, and lakes within the affected
watershed by increasing the loads of various pollutants in receiving
water bodies, including sediments, metals, polynuclear-aromatic
hydrocarbons (PAHs), oil, grease, pathogens, and nutrients. Groundwater
can also be adversely affected through diminished recharge capacity.
Other potential impacts may include the physical alteration of existing
streams and rivers due to excessive flow and velocity of storm water
runoff. The 1998 National Water Quality Inventory identifies siltation
as one of the leading pollutants contributing to impairments in
assessed stream miles, and lists urban runoff and hydrologic
modification as two of the leading sources of impairments.
Sediment is an important and ubiquitous constituent in urban storm
water runoff. Surface runoff and raindrops detach soil from the land
surface, and this often results in sediment transport into streams.
Sediment can be divided into three distinct subgroups: turbidity,
suspended solids, and dissolved solids. Total suspended solids (TSS)
are a measure of the suspended material in water. The measurement of
TSS in urban storm water allows for estimation of sediment transport,
which can have significant effects locally and in downstream receiving
waters. Turbidity is a function of the suspended solids and is a
measure of the ability of light to penetrate the water. Turbidity can
exhibit control over biological functions, such as the ability of
submerged aquatic vegetation to receive light and the ability of fish
to breathe dissolved oxygen through their gills. Total dissolved solids
are a measure of the dissolved constituents in water and are a primary
indication of the purity of drinking water.
Using total suspended solids (TSS) as an indicator pollutant, EPA
quantified the impacts of construction site storm water discharges on
water quality. As detailed in the economic assessment and described in
section XII of today's document, economic benefits were estimated to
the extent reductions in water quality impacts could be attributed to
implementation of the proposed rule.
B. Methodology for Estimating Environmental Impacts and Pollutant
Reductions
For purposes of the environmental assessment, EPA is using the term
``impact'' broadly to refer to negative conditions related to elevated
concentrations of pollutants, physical destruction of habitat by
excessive flows, elevation of water temperature, and loss of fish
spawning access due to new road crossings.
The Agency was able to assess only a subset of all of the potential
environmental impacts of storm water discharges from construction
sites. Construction activities generate initial environmental impacts
on each acre of land as the land is converted from an undeveloped state
(e.g., forest or rural land) to a developed condition. In addition,
environmental impacts continue long after construction activities are
completed because developed lands are permanently and hydrologically
altered from their pre-developed state. Hydrologic changes result from
alterations in storm water discharge patterns and characteristics that
can lead to ongoing environmental damages.
In its analysis of the options contained in this proposal, EPA only
considered the benefits that result from reductions in sediment
discharges that occur while land is disturbed due to implementation of
erosion and sediment controls and conducting site inspections and
certifications. The Agency limited its analysis to this category of
impacts primarily because some environmental impacts are difficult to
correlate with a specific industry activity and/or assess on a national
basis due to the wide variety of pollutants and sources of impairment
present in a water body. The technical tools and analytical approaches
available simply do not lend themselves to isolating impacts
attributable to this industry from other sources.
For this analysis, EPA first analyzed loadings that would occur
nationwide in the absence of any erosion and sediment control
requirements. EPA built on an earlier analysis developed for the Phase
II rulemaking and described in the Phase II economic analysis (op.
cit.). This analysis estimated sediment discharged from a variety of
``model construction sites'' incorporating various site characteristics
(3 soil erodibility levels with 5 slopes in 15 climatic regions). From
this model site analysis, EPA was able to estimate that the total
sediment discharged from construction sites nationwide in the absence
of any controls would be about 90 million tons per year. EPA did not
calculate the total reduction in this loading that is expected to occur
following implementation of existing Federal, State and local
requirements (the baseline condition), but rather estimated the
expected incremental reduction that would result from the proposed
options. For option 1, EPA estimated based on its experience and
engineering expertise that the additional site inspection and
certification provisions would reduce this national loading estimate by
approximately 5 to 15 percent (a midpoint estimate of this range was
used for calculating benefits) over the reductions attributable to
existing requirements. For option 2, EPA estimated based on its
experience and engineering expertise that the additional site
inspection and certification provisions along with the technology
requirements would reduce this national loading estimate by
approximately 25 percent over the reductions attributable to existing
requirements. EPA then further subdivided these loading estimated into
two size categories, turbidity and settleable solids, in order to
estimate specific benefits estimates using appropriate indicators. EPA
estimated based on its experience and engineering expertise that the
sediment discharged would be comprised of 80 percent particles as
settleable solids and 20 percent of particles as turbidity, by mass.
The settleable solids loads are used to calculate monetized benefits
for water storage capacity and navigational dredging. The turbidity
producing solids loads are used to calculate monetized benefits for
water treatment. The annual loads were reduced to reflect states with
equivalent programs for Option 1 and Option 2. The supporting documents
discusses in detail this analysis.
EPA solicits data and comments on this approach, as well as the
merits of conducting a more detailed analysis that estimates actual BMP
efficiencies and associated national loadings reductions. EPA also
solicits data and comments on conducting an analysis that incorporates
other pollutant indicators, such as nutrients, metals and any
additional pollutants that would be attached to sediments or contained
in runoff discharged from construction sites.
C. Potential Loading Reductions of Proposed Options
EPA used TSS as the primary indicator to evaluate loadings
reductions and to determine potential water quality benefits of the
proposed options. Reductions in TSS from construction sites would arise
from greater oversight of construction activities and better
implementation of BMPs (Options 1 and 2), as well as more efficient
BMPs in certain cases (Option 2). The estimated reductions due to
implementation of EPA's proposed Option 1 would be an annual reduction
of 1.05 million tons of turbidity producing solids per year and a
reduction of 4.2 million tons of
[[Page 42674]]
settleable solids per year. The estimated reductions due to Option 2
would be 2.2 million tons of turbidity producing solids per year and a
reduction of 8.9 million tons of settleable solids per year. EPA
expects that the potential for considerable benefits from today's
proposal exists due to decreases in sediment discharges to water
bodies. EPA solicits data and comments that can provide information on
the extent of impairments that are caused by the construction and land
development industries, and methods of quantifying the benefits of
today's proposal.
XVI. Benefit Analysis
EPA has identified, quantified and monetized certain benefits
attributable to the construction co-proposal options in today's
document. For some benefits, EPA has identified benefits categories,
but is unable to quantify and/or monetize them at this time. Section
XV, Environmental Assessment, established the analytical framework for
the benefits analysis.
A. Benefits Categories Estimated
As discussed in section XV, EPA has chosen TSS as the most
appropriate environmental indicator for the analysis of environmental
impacts and benefits analysis. The primary environmental indicator
selected was sediment entering waterways. The Agency used a simplified
approach for the environmental assessment, because monitoring
representative sites for a cross-section of the 2.2 million acres
developed would not be technically and economically feasible.
Section XV.C discusses the anticipated amount of TSS removals as a
result of today's document. The Agency estimates that 11.1 million tons
of TSS each year would be removed from construction site discharges
with Option 2 and 5.3 million tons of TSS each year would be removed
with Option 1 presented in today's proposal. EPA used its experience
and engineering expertise to determine the amount of TSS removal that
each option would achieve.
When identifying environmental impacts to assess for this industry,
the Agency decided against analyzing impacts that are extremely
difficult to correlate with the specific industry activity and/or
assess on a national basis. Large natural variations in watershed
ecology (e.g., changes in species diversity, density of aquatic
species) and variable climatic conditions greatly complicate the task
of determining cause and effect with regard to construction site storm
water discharges. In particular, the Agency did not analyze
construction impacts in the following areas: (1) Habitat/biology, (2)
stream temperatures, (3) flow and velocity, (4) conventional pollutants
and pollutant loadings, (5) human health, and (6) groundwater. EPA
believes that these benefit categories may have substantial benefits.
However, the Agency has chosen not to analyze these benefits at this
time for the proposed options because EPA is unable to quantify and/or
monetize them. EPA solicits comments on appropriate methods to quantify
these benefits categories.
B. Quantification of Benefits
TSS discharged from construction sites have a substantial and
adverse impact on downstream property owners. The TSS is suspended in
the water column that may serve as a source of drinking water for a
community or municipal water system. When influent for drinking water
supplies is contaminated with TSS, the system would likely need to
treat the water to remove the TSS and provide additional disinfection
before distribution to system customers. These costs will lead to rate
increases for drinking water system customers. Thus, the upstream
actions of the construction activity impose both direct costs (e.g.,
higher treatment costs for utility operators) and indirect costs (e.g.,
higher water bills for system customers). These costs could be reduced
by controlling construction site runoff through the use of erosion and
sediment controls and other BMPs.
Another impact of the discharge of sediment from construction sites
is to reduce the capacity of water storage reservoirs. Settleable
solids fall out of suspension and settle into water storage reservoirs.
These accumulated solids reduce the capacity of the reservoir to hold
as much water as in the past. With the reduced capacity of the water
reservoir, the water supply system will bear the direct cost of
dredging the water supply reservoir or replacing the water reservoir as
it is taken out of service for accumulation of sediment. Water system
customers generally bear indirect costs through rate increases. Again,
by installing erosion and sediment controls and other BMPs at
construction sites, these costs can be reduced.
Yet another impact of construction and the discharge of TSS and
storm water is the sediment that falls out of suspension and into
navigational and shipping channels. In most cases, the public pays for
the consequent dredging through taxes and/or higher cost of products.
Use of erosion and sediment controls and construction sites can also
reduce these costs.
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. The Agency believes that there are many
more benefits to this rule, but the state-of-the-art of benefit
analysis does not provide the tools at this point to quantify and
monetize them. For example, habitat preservation and protection is not
easily quantified and estimated for benefits analysis. However, we know
that people value habitat protection, because they are spending funds
to repair streams for habitat preservation and protection.
EPA has formulated a numeric estimate of the benefits of the
proposed options by determining the reduction in the amount of sediment
discharged from construction sites and in turn quantifying certain
environmental benefits. In particular, the amount of sediment reduced
is the primary variable in the benefits analysis.
EPA identified three potential economic methods to monetize the
benefits: (1) Avoided damages, (2) contingent evaluation, (3) hedonic
assessments of property values. The Economic Analysis provides the
details of these methods. The method that the Agency used initially to
monetize benefits is the method of avoided damages. EPA recognizes that
avoided damages is not the preferred approach and is working to improve
its methods. The Agency also considered contingent evaluation and
hedonic assessments to validate and confirm the avoided damages
methodology.
The avoided damages approach is a method that considers the damages
avoided as a result of the proposal. EPA has analyzed the magnitude of
costs primarily using the avoided damages. This method may also be
referred to as the avoided cost approach. This method uses the costs of
repair to estimate the benefits. These are costs that could be avoided
if construction sites did not discharge sediment and storm water into
surface waters.
These costs are used to estimate the monetary value of the benefits
of the proposal. EPA has also looked at academic literature for
contingent valuation studies, such those used in the economic analysis
for the NPDES Phase II storm water regulations. The Agency has used
those studies to validate the benefits models and for sensitivity
analyses to gain a clearer picture of the benefits of the proposed
rule. Additional information on the benefits analysis may be found in
the
[[Page 42675]]
Environmental Assessment and Economic Analysis.
The benefits analysis results are shown in Table XVI-1.
Table XVI-1.--Annual Benefits for Proposed Construction and Development Regulatory Options
----------------------------------------------------------------------------------------------------------------
Regulatory options
-----------------------------------------------
Option 2
Option 1 (Self- (Codification,
Benefit categories inspection, self-
certification; inspection, Option 3 (No
1 acre or certification; regulation)
more) 5 acres or
more)
----------------------------------------------------------------------------------------------------------------
Turbidity Reduction
----------------------------------------------------------------------------------------------------------------
Turbidity producing solids (million tons per year).............. 1.05 2.2 0
Water treatment monetized benefits (year 2000 $ millions)....... 0.1 0.2 0
----------------------------------------------------------------------------------------------------------------
Settleable Solids Reduction
----------------------------------------------------------------------------------------------------------------
Settleable Solids (million tons per year)....................... 4.2 8.9 0
Water storage monetized benefits (year 2000 $ millions)......... 7.6 16.0 0
Navigational dredging monetized benefits (year 2000 $ millions). 2.7 5.8 0
�����������������������������������������������������������������
Total Monetized Benefits (year 2000 $ millions)............. 10.4 22.0 0
----------------------------------------------------------------------------------------------------------------
Source: Economic Analysis; Environmental Assessment.
XVII. Benefit-Cost Comparison
EPA has conducted a benefit-cost analysis of the construction and
development effluent guidelines proposed in today's document. The
benefit-cost analysis may be found in the complete set of support
documents. Sections XII, XV, and XVI of this preamble provide
additional details of the benefit-cost analysis.
Table XVII-1 provides the results of the benefit-cost analysis.
Table XVII-1.--Total Annualized Benefits and Costs of the Proposed
Regulatory Options
[Tons of sediment, year 2000 $]
------------------------------------------------------------------------
Costs Benefits
(2000 $ (2000 $
Option millions millions
per year) per year)
------------------------------------------------------------------------
Self-inspection, certification; 1 acre or more.... 130 10.4
Codification, self-inspection, certification; 5 505 22.0
acres or more....................................
No regulation..................................... 0 0
------------------------------------------------------------------------
XVIII. Regulatory Implementation
A. Compliance Dates
C&D sites must comply with the C&D regulation, once finalized, at
the time of issuance, re-issuance, or modification of their NPDES
permit.
New sources must comply with the new source performance standards
(NSPS) (once it is finalized) at the time they commence discharging
process wastewater (i.e., storm water runoff from land disturbing
construction activities). Because the final rule is not expected within
120 days of the proposed rule, the Agency considers the date for
compliance under NSPS to be when the discharge from a new source
construction site commences following promulgation of the final rule
(see 40 CFR 122.2). See section X.D of today's document for the
discussion on defining new sources for the C&D category.
EPA expects to issue a renewed Construction General Permit (CGP) in
2003. Following promulgation of the C&D rule, which is expected in
2004, the Agency plans to incorporate the provisions of any effective
ELG at the time of the next permit renewal. Based on the standard five-
year period for NPDES permits, that renewal would take place in 2008.
However, States that have issued either general or individual permits
may choose a different (i.e. shorter) time period to implement the
final effluent guidelines requirements. EPA requests comment on this
planned schedule.
B. Relationship of Effluent Guidelines to NPDES Permits
Effluent limitation guidelines and pretreatment standards act as a
primary mechanism to control the discharges of pollutants to waters of
the United States. Once finalized, the proposed C&D regulations would
be applied to sites through individual NPDES permits or a general
permit issued by EPA or authorized States under section 402 of the Act.
The Agency has developed the limitations for this proposed rule to
cover the discharge of pollutants for this industrial category. In
specific cases, the NPDES permitting authority may elect to establish
technology-based permit limits for pollutants not covered by this
regulation. In addition, if State water quality standards or other
provisions of State or Federal law require limits on pollutants not
covered by this regulation (or require more stringent limits or
standards on covered pollutants to achieve compliance), the permitting
authority must apply those limitations or standards.
C. 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 proposal includes design standards for
design, installation, and maintenance of ESC BMPs, EPA considered the
need for a bypass-type provision in regard to large storm events.
However, EPA did not specifically include such a provision because
today's proposed design standards only require BMPs to be designed to
capture a specified volume of storm runoff for pollutant removal.
Because EPA is not establishing requirements for control of larger
storm events, specific bypass provisions were not necessary.
[[Page 42676]]
D. 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 the national effluent limitation
guidelines 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 proposal.
However, the variance for Fundamentally Different Factors (FDFs) may
apply in some circumstances.
1. Fundamentally Different Factors Variance
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 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.
2. Low Soil Loss Potential Waiver
Some sites may qualify for a waiver due to low potential for soil
loss. The waiver is provided for small sites (1 to 5 acres) in the
existing NPDES storm water regulations. See Sec. 122.26(b)(15)(i)(A).
E. Other Clean Water Act Requirements
Compliance with the provisions in any of the rules proposed today
would not exempt a discharger from any requirement for a permit for
dredged or fill material under section 404 of the CWA.
XIX. Related Acts of Congress, Executive Orders, and Agency Initiatives
A. Paperwork Reduction Act
The information collection requirements in today's proposed rule
have been submitted for approval to OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR)
document has been prepared by EPA (ICR No. 1842.03) and a copy may be
obtained from Susan Auby by mail at Collection Strategies Division;
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave.,
NW, Washington, DC 20460, by email at [email protected], or by calling
(202) 566-1672. A copy may also be downloaded from the internet at
http://www.epa.gov/icr. In today's proposed Option 2, 40 CFR 450.21(f)
and (g) would require operators to maintain a site log. The equivalent
provision in proposed Option 1 is 40 CFR 122.44(t). See section X.D. of
today's document for a description of these provisions. EPA estimates
that this provision would create a total annual burden of about 760,158
hours for Option 1 and 633,033 hours for Option 2. 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.''
In today's proposed Option 2, 40 CFR 450.21(a) would require
permittees to prepare a Storm Water Pollution Prevention Plan (SWPPP).
This requirement would essentially codify current CGP requirements and
no additional burden would be imposed.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a
[[Page 42677]]
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
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 are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after June 24, 2002, a comment to OMB is best assured of
having its full effect if OMB receives it by July 24, 2002. The final
rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
B. 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 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 by State, local, and Tribal governments, in
the aggregate, or by 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 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 UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments 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 the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector of $100 million or more in
any one year. Accordingly, EPA has prepared under section 202 of UMRA a
written statement which is summarized below.
EPA is proposing the technology-based construction and development
(C&D) effluent guidelines under sections 301, 304, 306, 308, 402,and
501 of the Clean Water Act CWA), 33 U.S.C. 1311, 1314, 1316, 1318, 1342
and 1361 and under authority of the Pollution Prevention Act of 1990,
42 U.S.C. 13101 et seq.
Today, EPA is co-proposing three options for this C&D effluent
limitation guideline: (1) Construction site permittee self-inspection
and certification, (2) ``codify'' provisions of the current EPA
construction general permit with inspection and certification, and (3)
no regulation. EPA is considering each of the three options; no option
is preferred over the other. Options 1 and 2 would impose a mandate on
the States, local, or Tribal governments, in the aggregate, or private
sector that would exceed $100 million per year. Option 3 would not
impose a mandate with costs that exceed $100 million per year for the
public or private sectors. The Agency has conducted economic analyses
for each of the three options, which are provided in the Economic
Analysis for today's proposed rule (see ``Supporting Documentation'').
Additional summary economic information may be found in sections XII,
XVI, and XVII of today's document.
Option 1 would establish permittee self-inspection and
certification requirements to improve the effectiveness of ESCs at
construction sites subject to NPDES storm water permits. Option 1 would
apply to sites 1 acre or more. This option would require permittees to
periodically inspect their ESCs during land disturbing activities and
certify that they have been properly installed and maintained. Option 1
would cost about $130 million annually; the benefits for this option
are about $10 million per year. This option would encourage permittees
to adopt better ESC practices and, in the process, reduce discharges of
sediment and other pollutants from those sites. Under Option 1, EPA
estimates that State and local governments would incur about $13
million in annual costs and the private sector would incur about $117
million in annual costs. Of the $13 million in annual costs to State
and local governments, about $3 million would be incurred by small
government entities, less than 50,000 population, and about $10 million
annually would be incurred by large government entities, equal to or
greater than 50,000 population. EPA has determined that this option is
the least expensive of the set of two regulatory options in today's
proposal. Option 1 would amend the existing NPDES regulations and
improve the effectiveness of the storm water permit program. The no
regulation option, discussed later in this section, is the least
expensive proposed option in terms of direct costs outlays.
Option 2 would establish a new national standard for ESC at
construction sites of five acres or more, basically codifying the
requirements of EPA's construction general permit. In addition, this
option would add permittee self-inspection and certification
requirements for ESCs to improve compliance. EPA estimates that these
controls would remove, on average, 80 percent of the total suspended
solids (TSS) discharged from construction sites. The problem that EPA
is addressing through this proposed rule is the need to reduce
construction site erosion and reduce the amount of sediment discharged
during land disturbance activities. EPA estimates that Option 2 would
cost about $505 million annually and would have about $22 million in
annual monetized benefits. The benefits of the
[[Page 42678]]
proposal would accrue to the public in the form of reduced sediment and
polluted storm water discharged to the Nation's surface waters. The
sediment and polluted storm water is discharged from active
construction sites and settles into stream beds, drinking water
reservoirs, and navigational channels. If the excess sediment
discharged from construction sites could be reduced or avoided
altogether, the public would benefit with improved water quality and
less frequent dredging of drinking water reservoirs and navigational
channels. This option is the more expensive of the options. The
codification of the CGP plus self-inspection and certification (Option
2) would improve controls at construction sites and in the process
reduce the amount of sediment and storm water discharged from
construction sites. EPA found that the cost of sediment removed is
about $0.01 per pound. The Agency believes that this cost is reasonable
for the pollutant reduction achieved.
Under Option 2, about $50 million of annual incremental costs would
accrue to State and local governments and about $455 million to the
private sector. The Agency does not have data to estimate the costs to
Tribal lands and is searching for additional information about Tribal
lands for the final rule. The Agency requests information about the
impacts and costs on Tribal lands. Of the $50 million in costs accruing
to State and local government agencies, about $5 million per year would
be incurred by small government agencies, communities with less than
50,000 population, and about $45 million would accrue to large
communities, those with more than 50,000 population. EPA has analyzed
the impacts on small government entities. This analysis is discussed
later in this section. EPA estimates that about $2 million of the
annual benefits will come from improvements to State and local
government-funded projects and about $20 million in benefits will come
from improvements to private sector projects. This distribution of the
benefits reflects the distribution of construction and development in
the United States economy. About 25 percent of all construction is
funded by Federal, state and local governments, according to the 1997
Census of Construction. The Federal portion of the incremental costs of
the proposal are not covered by UMRA.
State and local governments may find resources available at the
Federal, State and local level to defray some of the costs associated
with the proposed rule. The Clean Water Act State Revolving Fund (SRF)
provides capitalization grants to eligible States, that provide a
twenty percent match, and then provide financial assistance to
municipalities or State agencies. Some of these funds are eligible to
finance storm water controls. In some cases, these funds are available
to the private sector if projects are located in a designated estuary.
Other funds are available through other programs such as grant and loan
programs, public/private partnerships, and private sector
contributions.
This proposal will not have any disproportionate impacts on
particular regions of the country, or particular State, local, or
Tribal governments, or communities, or particular segments of the
private sector. The regulatory options proposed in today's document
apply broadly to the construction and development industry in the
United States. The proposed options will have an impact in those
locations, wherever they happen to be, in which construction and
development is occurring. Over time, different regions of the country
experience more construction and development than other regions of the
country. For example, at this time, California and Texas are
experiencing a relatively large amount of development, along with
Florida and Pennsylvania.
Option 3 is the no-regulation option for the construction and
development industry. Under Option 3, there would be no costs or
benefits directly attributable to government entities or to the private
sector, with the following important exception. Executive Order 12866
advises agencies to consider the state of the world before and after
the prospective regulation. Under the no-regulation option, the current
state of the world would not be changed, nor would the discharge of
sediment into the Nation's surface waters from C&D activities. These
partially-controlled sediments would continue to contribute to the loss
of water quality, and sedimentation in water reservoirs and streams.
These effects can be attributed as costs imposed on society as an
externality, and realized when choices are made to reclaim or restore
the functionality of the water body. EPA's benefit methodology is
limited in terms of the state-of-the-art to monetize these benefits.
However, the Agency believes that the benefits may be substantially
larger than EPA is claiming through monetized benefits.
Additional information about the costs and economic impacts of the
proposed rule may be found in section XII of today's document. In
addition, section XVI and section XVII of today's document provide
information and analyses about the environmental assessment and benefit
analysis. The analyses for these proposed options may be found in the
support documents in the record for this proposed action.
The proposed regulatory options would not impose any costs on the
industry or government entities after termination of the applicable
NPDES permits. Option 1 would require only permittee self-inspection
and certification activities during the active construction period.
Option 2, in addition to the inspection and certification requirements,
would require installation, operation and maintenance of temporary ESCs
during the active construction period. Option 2 would not require
maintenance of these controls after the active construction period.
EPA has determined that the mandates under this proposal will not
have a significant impact on the national economy in the form of
productivity, economic growth, full employment, creation of productive
jobs and international competitiveness. Nevertheless, the Agency has
conducted an extensive analysis of the economic impacts of the proposed
rule on the construction and development industry and the national
economy. These analyses are presented in section XII of today's
document. While the impact analysis shows that less than one percent of
firms in the industry could potentially fail under the rule and that
less than one percent of jobs in the industry could be lost from the
most stringent options under analysis, the Agency concluded that, based
upon the scale of this industry which is a major component of the U.S.
economy, even a small percentage of jobs or firms closed is
significant, especially in a sluggish economy. Accordingly, the burden
on the economy is one of the reasons the Agency rejected more stringent
options. The options proposed today are a result of an extensive
economic analysis of a suite of construction and storm water options.
The Agency determined that Option 1 is the least costly and least
burdensome regulatory option.
EPA is not required by UMRA to consult with elected representatives
(or their designated authorized employees) of the affected State,
local, and Tribal governments, because the proposed rule would not
impose a Federal mandate on State, local and tribal governments, in the
aggregate, of $100 million or more in any one year. The Agency
estimates that the costs to State, local and tribal governments is
about $50 million on an annual basis. Nevertheless, EPA has conducted
outreach to the public and private sectors to obtain their input on the
proposed regulations. The Agency
[[Page 42679]]
has conducted two national public meetings in the past year: one in
Washington, DC and one in Denver, Colorado. Representatives of several
State and local agencies, and engineering consultants representing
builders and developers attended these national meetings. The Agency
also convened a 60-day Small Business Advocacy Review (SBAR) Panel on
July 16, 2001 to obtain input from the small business community on the
possible impacts of the proposed regulations on small businesses. The
SBAR Panel was composed of representatives of the Office of Management
and Budget, the Small Business Administration, and EPA. The SBAR Panel
met with small entity representatives (SERs) and held conference calls
with the SERs to discuss the impact of the proposal. The Panel issued a
final report to the Administrator in October 2001. In addition, through
the auspices of the National Association of Home Builders (NAHB), EPA
conducted six focus group meetings with residential builders and
developers to learn more about the economic and business practices of
the construction and development industry. Finally, the Agency has
conducted numerous conference calls with builders and developers to
learn more about their business and technical practices and
participated in conferences and meetings across the country.
EPA has determined that none of the options proposed today might
significantly or uniquely affect small governments. Thus, today's rule
is not subject to the requirements of section 203 of UMRA.
Nevertheless, the Agency has taken steps to provide information and
accessability to small government agencies. The Agency has conducted an
extensive small government economic impact analysis, because the Agency
wants to understand the impacts of the proposed rule. Moreover, the
Agency usually conducts a small government analysis for all effluent
guidelines to comply with all applicable Federal requirements and
Executive Orders. The most expensive proposed regulatory option would
impose requirements for ESC at construction sites. These requirements
are technology-based requirements for construction sites that are
designed to work with the NPDES storm water program. Some construction
and development projects are funded by State and local governments, but
most are funded by the private sector. The Agency has determined that
about 12 percent of all projects funded by State and local governments
are funded by small government entities, those with a population under
50,000, and about 88 percent are funded by large governments, those
with a population greater than 50,000. EPA's economic analysis shows
that the cost to small governments of the most costly option is
significantly less than one tenth of one percent of the revenues of
those communities.
Nevertheless, EPA considered approaches to reduce any impact and
assessed methods to find better ways to meet the objectives of the
proposal with as few impacts as possible. EPA used several methods to
determine costs to small communities, and each method shows that the
cost to small communities from the most costly option is much less than
one tenth of one percent of their annual revenues. Under one method the
Agency compared the aggregate incremental costs of the most costly
option to small governments with the aggregate annual revenue of small
governments. In another method, the Agency analyzed the impacts on
average small government agencies, based upon data on small government
annual revenues and costs. As a result, this rule will not result in a
significant cost to small communities. The Agency requests comment on
the impacts on small communities from the requirements under this
proposal. The small government agency analysis can be found in the
Economic Analysis.
EPA is developing procedures and methods with which to provide
information about this proposal to small government agencies. In
particular, the Agency has established a website to distribute
information to the public, industry, and government entities, in
particular small government agencies, about today's proposed rule. The
website may be accessed at http://www.epa.gov/waterscience/guide/construction/. This website provides information on EPA's effluent
guidelines program and will contain information about today's proposed
regulation.
C. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA)
1. Introduction
The RFA, 5 U.S.C. 601 et. seq., 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 impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, EPA defined: (1) Small businesses, according to SBA size
standards, as construction businesses that receive less than $27.5
million in annual revenue and developers that receive less than $5
million in annual revenue; (2) small government jurisdictions as small
governments of a city, county, town, school district or special
district with a population of less than 50,000; and (3) small
organizations as any not-for-profit enterprise that is independently
owned and operated and is not dominant in its field.
In accordance with section 603 of the RFA, EPA has prepared an
initial regulatory flexibility analysis (IRFA) that examines the impact
of the proposed rule on small entities along with regulatory
alternatives that could reduce that impact. The IRFA is available for
review in the docket and is summarized below.
The objective for the proposed effluent guidelines for the
construction and development (C&D) industry is to reduce sediment and
storm water discharged from active construction sites. EPA's analysis
indicates that storm water discharges from construction sites
contribute sediment to the nation's surface waters that is deposited in
stream beds, lakes, navigational channels, and water supply reservoirs.
Notwithstanding the social policy objective of reducing sediment and
storm water discharges, EPA has conducted extensive analyses of the
impacts on small businesses based upon the costs and impacts of three
co-proposed options. EPA used the small business analyses to identify
approaches that would reduce and minimize impacts on small businesses,
while at the same time striking a balance that would achieve the highly
desirable goal of reducing storm water pollution. EPA also is
soliciting comments on other, less costly approaches to meet the
objective of the proposal. The Economic Analysis in its entirety and
the initial regulatory flexibility analysis (IRFA)(Chapter 6 within the
Economic Analysis) provide EPA's analysis of the proposed requirements
on small business entities. Additional information on the economic
impacts and, in particular, the impacts on small businesses, may be
found in section XII of today's document.
EPA proposes to set technology-based effluent guidelines to control
sediment and storm water discharges from active
[[Page 42680]]
construction sites. Construction and development activity disturbs the
soil on construction sites, and, in the process, releases sediment and
storm water into surface streams, lakes, and water supply reservoirs.
See section VI.B.2, Clearing, Excavating and Grading of today's
document for additional details. Disturbed soil, if not managed
properly, can be easily washed off-site during storm events. Storm
water and sediment discharges during construction can cause an array of
physical, chemical and biological impacts. Water quality impairment
results, in part, because pollutants available at construction sites
are released into surface waters. The interconnected process of erosion
(detachment of the soil particles), sediment transport, and delivery is
the primary pathway for introducing key pollutants, such as nutrients
(nitrogen and phosphorous), metals and organic compounds into surface
waters and aquatic systems.
The proposed rule would establish technology-based effluent
guidelines for the control of erosion and sediment on active
construction projects. The technology-based options would complement
the requirements of the existing NPDES storm water requirements. EPA is
proposing this regulation under the authorities of sections 301, 304,
306, 308, 402 and 501 of the Clean Water Act, 33 U.S.C. 1311, 1314,
1316, 1318, 1342 and 1361 and under authority of the Pollution
Prevention Act of 1990, 42 U.S.C. 13101 et seq., Public Law 101-508,
November 5, 1990.
For purposes of assessing the economic impacts of today's rule on
small entities through the IRFA, ``small entity'' is defined by SBA
size standards for small businesses and RFA default definitions for
small governmental jurisdictions and small organizations. The small
entities directly regulated by this proposed rule include small land
developers, small residential construction firms, small commercial and
industrial firms, and small special trade firms. Over ninety percent of
the businesses in the construction and development industry are small
businesses. EPA recognizes the tremendous contributions that these
small businesses make to the fabric of the American economy.
Accordingly, the Agency has attempted to reduce impacts to small
businesses while, at the same time, working to identify ways to achieve
the objective of today's document.
Table XII-8 in section XII of today's document presents the results
of EPA's small business analysis.
EPA also has analyzed the projected reporting, recordkeeping, and
other compliance requirements under the Paperwork Reduction Act for
today's proposed rule, including an estimate of the classes of small
entities that would be subject to the proposed rule. The results of the
analysis are reported in section XIX.A, Paperwork Reduction Act. EPA
anticipates that small firms may incur some incremental costs for
reporting, record keeping and other compliance requirements. However,
these incremental costs are expected to be small. EPA has analyzed the
incremental burden and costs of reporting and record keeping
requirements. These costs are covered by the approved information
collection request (ICR) for the existing NPDES Storm Water Program.
Moreover, these costs are included in the engineering cost models and
in the economic impact models that support the regulatory options in
today's document.
EPA has not identified any rules that duplicate, overlap, of
conflict with today's proposal. Moreover, this proposal would
complement the existing NPDES storm water regulations.
There may be alternatives to the proposed options that accomplish
the objectives of today's proposal. EPA is seeking comment on
variations to these options and is particularly interested in
information that would accomplish these objectives and minimize any
significant economic impact on small entities.
The Agency as analyzed a broad suite of regulatory options and
technology alternatives. The three regulatory options in today's
document provide the final set of options that the Agency is
considering for the proposal.
As required by section 609(b) of the RFA, as amended by SBREFA, EPA
also conducted outreach to small entities and convened a Small Business
Advocacy Review (SBAR) Panel to obtain advice and recommendations of
representatives of the small entities that potentially would be subject
to the rule's requirements. On July 16, 2001, EPA's Small Business
Advocacy Chairperson convened the C&D SBAR panel under section 609(b).
In addition to the Chairperson, the Panel consists of the Director of
the Engineering and Analysis Division of the Office of Science and
Technology within EPA's Office of Water, the Administrator of the
Office of Information and Regulatory Affairs within the Office of
Management and Budget (OMB), and the Acting Chief Counsel for Advocacy
of the Small Business Administration (SBA).
Prior to convening the Panel on July 16, 2001, EPA held a
conference call/meeting on June 14, 2001 to receive information from
prospective small entity representatives (SER) about plans for
convening the Panel and their early concerns about the planned proposed
regulation. EPA invited seven residential builders and developers, five
heavy construction company representatives, one local government
official, one trade association representative, and five consultants to
serve as potential SERs during the pre-panel outreach process. The full
Panel report lists the materials provided to the SERs and summarizes
their comments. Their full written comments also are attached to the
report. In light of these comments, the Panel considered the regulatory
flexibility issues specified by RFA/SBREFA and developed the findings
and discussion summarized below.
Consistent with the RFA/SBREFA requirements, the Panel evaluated
the assembled materials and small-entity comments on issues related to
the elements of the IRFA. A copy of the Panel report is included in the
docket for this proposed rule.
2. Summary of Panel Recommendations
The SBAR Panel submitted a final report of the sixty day panel
process, that convened on July 16, 2001, to the Administrator of EPA in
October 2001. The following issues and EPA's response provides
information about the discussions between the SBAR Panel and the SERs.
The final SBAR Panel Report is available in the docket for the proposed
effluent guidelines for the construction and development industry.
a. Related Federal Rules
The Panel recommended that EPA, during the development of
the proposed effluent guidelines, evaluate the adequacy of the current
NPDES storm water program. The Panel also recommended that EPA proceed
with the development of proposed effluent guidelines, but that in doing
so, keep open the option of ultimately declining to promulgate final
guidelines until the effectiveness of Phase I and Phase II, without
national effluent guidelines, can be evaluated more fully.
EPA response. EPA is proposing a set of three options that is
consistent with the comments from the Small Business Advocacy Review
(SBAR) Panel. One of the options would require additional ESCs. The
three options are: (1) Self-inspection and certification for projects
one acre or more; (2) Codify the CGP with self-inspection and
certification for projects five acres or more; (3) a no-regulation
option that considers the possibility of not issuing a final
[[Page 42681]]
regulation. The Agency appreciates the comments from the SBAR Panel,
and the regulatory options in today's document reflect the Panel's
final report.
The Panel further recommended the inclusion in the
proposal of regulatory language that would provide a mechanism by which
construction sites could meet the effluent guidelines requirement by
complying with State and/or local regulations that provide a comparable
level of environmental protection. The Panel also noted and endorsed
EPA's intention to incorporate any additional requirements for ESC and
storm water management developed under the effluent guidelines into the
existing construction general permitting system, which should ease the
regulatory burden associated with the new requirements, at least in
terms of permitting and related paperwork costs.
EPA response. EPA plans to recognize States with excellent storm
water programs. In those States, there would be no additional
requirements beyond those currently in place. In addition, there would
be no incremental costs to those States or the dischargers in those
States.
EPA plans to implement the technology-based effluent guidelines
through the existing NPDES storm water program. Moreover, EPA plans to
implement the effluent guidelines through the construction general
permits as recommended by the SBAR Panel.
b. Regulatory Alternatives
Many of the SERs commented that quantitative or numerical
effluent standards are not appropriate for storm water discharges.
Another SER indicated that numeric limits are unproven in a
construction discharge context and are extremely cost-ineffective. The
Panel recommended against establishing across-the-board storm water
monitoring requirements as part of the effluent guidelines.
EPA response. For the reasons discussed in section IX.B of today's
document, EPA is not proposing quantitative or numerical effluent
standards for construction and development, and is not proposing storm
water monitoring requirements in today's proposed rule.
The Panel urged EPA, as it conducts evaluations of the
feasibility of establishing numeric effluent limitations to comply with
the settlement agreement with NRDC, to fully consider the many
challenges associated with developing numeric effluent standards, such
as monitoring difficulties, site-specific variability, and the
stochastic nature of rainfall and runoff events. The Panel recommended
that EPA acquire and evaluate data on both costs and effectiveness of
such requirements from sites across the country, reflecting a variety
of geographic, weather, soil, and other site conditions, before it
makes any determination on the utility and feasibility of such
standards. The Panel also recommended that any BMP certification
requirements that may be included in the guidelines be limited to
design parameters only and not include performance certification or
liability of the certifier for failure of BMPs to perform as expected.
EPA response. As described in the Agency's response to the previous
Panel recommendation, EPA is not proposing quantitative or numerical
effluent standards. EPA has compiled data from across the country and
found that numeric limits and monitoring requirements are not the most
effective tools for management and control of storm water discharges.
Several SERs suggested that EPA base the effluent
guidelines on the existing CGP requirements. The panel recommended that
EPA give consideration to this approach and that, at a minimum, EPA
should present it for comment in the preamble to the proposed effluent
guidelines as a regulatory option under consideration.
EPA response. EPA gave considerable weight to this recommendation
from the SBAR Panel. The Agency has concluded that using the
technology-based requirements to complement those in the CGP has
considerable advantages and served as the basis for one of the options
proposed today.
c. Methodological Issues
The Panel recommended that EPA fully evaluate the
appropriateness of the selected baseline requirements and the estimated
costs, and the regulatory requirements and their costs in the
development of the proposed rule. The Panel further recommended that
EPA specifically consider the comments of the SERs in this effort.
EPA response. EPA has assessed the baseline and understands the
progress that the industry has made in improving the implementation of
ESCs. The Agency has conducted an analysis that reflects the current
level of progress and the progress anticipated under the existing storm
water programs.
EPA invites comments on all aspects of this proposal and its
impacts on small entities.
D. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, EPA has concluded
that this rule is a ``significant regulatory action.'' As such, this
action was submitted to OMB for review. Changes made in response to OMB
suggestions or recommendations will be documented in the public record.
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 this 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. EPA estimates that the average
impact on all authorized States and local governments of the most
expensive of the options
[[Page 42682]]
proposed today is $50 million (year 2000 $) annually. EPA does not
consider an impact of $50 million (year 2000 $) on States and local
governments a substantial effect. Moreover, this annual cost is less
than one tenth of one percent of the revenues of State and local
government.
Further, the revised regulations 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 revised regulations to 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 comments on this proposed rule
from State and local officials.
F. 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.
G. 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.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Public Law 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 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.
I. Plain Language Directive
Executive Order 12866 requires each agency to write all rules in
plain language. EPA invites comments on how to make this proposed rule
easier to understand.
J. 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 today's proposal rely on passive
treatment techniques that do not utilize mechanical equipment. The
proposed rule may require larger sediment basins in certain cases, and
therefore may result in the use of additional fuel for construction
equipment conducting excavation and soil moving activities. EPA
estimates that this additional fuel usage will be approximately 700,000
gallons per year, which is insignificant compared to the annual
consumption in the United States.
XX. Solicitation of Data and Comments
A. 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 specifically solicited
comments throughout this proposal, EPA solicits comments in several
additional areas.
Today's proposal at Sec. 450.21(i) specifies requirements for
permittees to remove accumulated sediment from sediment traps and ponds
when design capacity has been reduced by 50 percent. Today's proposal
does not require any other specific maintenance requirements, although
some additional maintenance costs such as replacing mulching have been
included in the costs of Option 2. EPA solicits comments on the
assumption that these maintenance activities would be a natural outcome
of the inspection requirements. Alternatively, EPA solicits comment on
additional maintenance requirements that the Agency should consider
requiring through regulation, as well as the costs and benefits of such
requirements.
EPA solicits comments on the effectiveness and appropriateness of
each of the technologies contained in today's proposal. The Agency also
solicits comments on any other equivalent technologies the Agency
should consider, as well as the costs,
[[Page 42683]]
benefits and effectiveness of such technologies.
EPA has attempted to capture all of the provisions of the EPA's
``national'' CGP (63 FR 7901, February 17,1998) in today's proposal.
EPA solicits comments on the components of the CGP that were
inadvertently left out of today's proposal, as well as the costs and
benefits of such components. In addition, EPA recognizes that the EPA
CGP is scheduled to be revised in 2003 and that certain provisions
contained in the permit may change prior to final action on the
effluent guideline. EPA solicits comments on the appropriate approach
to take to reconcile any changes made in the EPA CGP with today's
proposal.
B. General Solicitation of Comment
EPA encourages public participation in this rulemaking. EPA asks
that commenters address any perceived deficiencies 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 mutually beneficial and cost-effective data submissions.
Please refer to the FOR FURTHER INFORMATION section at the beginning of
this preamble for technical contacts at EPA.
List of Subjects
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 450
Environmental protection, Construction industry, Land development,
Erosion, Sediment, Storm water, Water pollution control.
Dated: May 15, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend
title 40, chapter I of the Code of Federal Regulations as follows:
[Option 1]
Part 122 is proposed to be amended to read as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 122.44 is amended by revising paragraph (i)(4) and
adding paragraph (t) to read as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(i) * * *
(4) Requirements to report monitoring results for storm water
discharges associated with industrial activity (other than construction
activity pursuant to 40 CFR 122.26(b)(14)(x) and those discharges
addressed in paragraph (i)(3) of this section) shall be established on
a case-by-case basis with a frequency dependent on the nature and
effect of the discharge. * * *
* * * * *
(t) Inspection and certification for construction site storm water
discharges.
(1) Site log book. The permittee for a point source discharge under
Sec. 122.26(b)(14)(x) or Sec. 122.26(b)(15) shall maintain a record of
site activities in a site log book. The site log book shall be
maintained as follows:
(i) A copy of the site log book shall be maintained on site and be
made available to the permitting authority upon request;
(ii) In the site log book, the permittee shall certify, prior to
the commencement of construction activities, that any plans required by
the permit meet all Federal, State, Tribal and local erosion and
sediment control requirements and are available to the permitting
authority;
(iii) The permittee shall have a qualified professional
(knowledgeable in the principles and practices of erosion and sediment
controls, such as a licensed professional engineer, or other
knowledgeable person) conduct an assessment of the site prior to
groundbreaking and certify in the log book that the appropriate best
management practices (BMPs) described in plans required by the permit
have been adequately designed, sized and installed to ensure overall
preparedness of the site for initiation of groundbreaking activities.
The permittee shall record the date of initial groundbreaking in the
site log book. The permittee shall also certify that any inspection,
stabilization and BMP maintenance requirements of the permit have been
satisfied within 48 hours of actually meeting such requirements; and
(iv) The permittee shall post at the site, in a publicly-accessible
location, a summary of the site inspection activities on a monthly
basis;
(2) Site Inspections. The permittee or designated agent of the
permittee (such as a consultant, subcontractor, or third-party
inspection firm) shall conduct regular inspections of the site and
record the results of such inspection in the site log book in
accordance with paragraph (t)(1) of this section.
(i) After initial groundbreaking, permittees shall conduct site
inspections at least every 14 calendar days and within 24 hours of the
end of a storm event of 0.5 inches or greater. These inspections shall
be conducted by a qualified professional. During each inspection, the
permittee or designated agent shall record the following information:
(A) Indicate on a site map the extent of all disturbed site areas
and drainage pathways. Indicate site areas that are expected to undergo
initial disturbance or significant site work within the next 14 days;
(B) Indicate on a site map all areas of the site that have
undergone temporary or permanent stabilization;
(C) Indicate all disturbed site areas that have not undergone
active site work during the previous 14 days;
(D) Inspect all sediment control practices and note the approximate
degree of sediment accumulation as a percentage of the sediment storage
volume (for example 10 percent, 20 percent, 50 percent, etc.). Note all
sediment control practices in the site log book that have sediment
accumulation of 50 percent or more; and
(E) Inspect all erosion and sediment control BMPs and note
compliance with any maintenance requirements such as verifying the
integrity of barrier or diversion systems (e.g., earthen berms or silt
fencing) and containment systems (e.g., sediment basins and sediment
traps). Identify any evidence of rill or gully erosion occurring on
slopes and any loss of stabilizing vegetation or seeding/mulching.
Document in the site log book any excessive deposition of sediment or
ponding water along barrier or diversion systems. Note the depth of
sediment within containment structures, any erosion near outlet and
overflow structures, and verify the ability of rock filters around
perforated riser pipes to pass water.
(ii) Prior to filing of the Notice of Termination or the end of
permit term, a final site erosion and sediment control
[[Page 42684]]
inspection shall be conducted by the permittee or designated agent. The
inspector shall certify that the site has undergone final stabilization
as required by the permit and that all temporary erosion and sediment
controls (such as silt fencing) not needed for long-term erosion
control have been removed.
[Option 2]
Part 122 is proposed to be amended and part 450 is proposed to be
added to read as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 122.44 is amended by revising paragraph (i)(3) as
follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(i) * * *
(3) Requirements to report monitoring results for storm water
discharges associated with industrial activity, with the exception of
construction activity as defined in Sec. 122.26(b)(14)(x), that are
subject to an effluent limitation guideline shall be established on a
case-by-case basis with a frequency dependent on the nature and effect
of the discharge, but in no case less than once a year. Discharges from
construction activity pursuant to Sec. 122.26(b)(14)(x) shall be
governed instead by 40 CFR part 450.
3. A new part 450 is added to read as follows:
PART 450--CONSTRUCTION AND DEVELOPMENT POINT SOURCE CATEGORY
Subpart A--General Provisions
Sec.
450.10 Applicability.
450.11 General Definitions.
Subpart B--Erosion and Sediment Controls
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: Sections 301, 304, 306, 308, 402, and 501 of the
Clean Water Act, as amended; 33 U.S.C. 1311, 1314, 1316, 1318, 1342,
and 1361.
Subpart A--General Provisions
Sec. 450.10 Applicability.
This part applies to any point source discharges from construction
and development activities that are subject to an NPDES permit under
the definition of ``construction activity'' at 40 CFR 122.26(b)(14)(x).
This may include, but is not restricted to, construction of residential
buildings and non-residential buildings, and heavy construction
(including highways and streets, bridges and tunnels, pipelines,
transmission lines and industrial non-building structures). Where there
is more than one operator of a discharge at a site, the requirements of
this part may be shared among operators if all the requirements of this
part are met for the entire site. The Storm Water Pollution Prevention
Plan (SWPPP) required by Sec. 450.21(d) shall clearly delineate the
responsibilities of all operators.
Sec. 450.11 General definitions.
In addition to the definitions set forth in 40 CFR 122.2, 122.26(b)
and 40 CFR 401.11, the following definitions apply to this part:
Best Management Practices (BMPs) means schedules of activities,
prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce the discharge of pollutants to waters of
the United States. BMPs also include treatment requirements, operating
procedures, and practice to control plant site runoff, spillage or
leaks, sludge or waste disposal, or drainage from raw material storage.
Commencement of construction means the initial removal of
vegetation and disturbance of soils associated with clearing, grading
or excavating activities or other construction activities.
Final stabilization means that either:
(1) All soil-disturbing activities at the site have been completed
and a uniform (e.g, evenly distributed, without large bare areas)
perennial vegetative cover with a density of 70 percent of the native
background vegetative cover for the area has been established on all
unpaved areas and areas not covered by permanent structures, or
equivalent permanent stabilization measures (such as the use of riprap,
gabions, or geotextiles) have been employed; or
(2) For individual lots in residential construction by either: The
homebuilder completing final stabilization as specified above; or the
homebuilder establishing temporary stabilization including perimeter
controls for an individual lot prior to occupation of the home by the
homeowner and informing the homeowner of the need for, and benefits of,
final stabilization; or
(3) For construction projects on land used for agricultural
purposes (e.g., pipelines across crop or range land), final
stabilization may be accomplished by returning the disturbed land to
its preconstruction agricultural use. Disturbed areas that were not
previously used for agricultural activities, such as buffer strips
immediately adjacent to ``waters of the United States,'' and areas that
are not being returned to their preconstruction agricultural use must
meet the final stabilization criteria in paragraph (1) or (2) of this
definition.
Groundbreaking means the commencement of construction activity at a
site.
New Source means any source from which there may be a discharge
associated with construction activity pursuant to 40 CFR
122.26(b)(14)(x) that will result in a building, structure, facility or
installation from which there may be a discharge of pollutants
regulated by new source performance standards elsewhere under
subchapter N.
Operator for the purpose of this Part and in the context of storm
water associated with construction activity, means any party associated
with a construction project that meets either of the following two
criteria:
(1) The party has operational control over construction plans and
specifications, including the ability to make modifications to those
plans and specifications; or
(2) The party has day-to-day operational control of those
activities at a project that are necessary to ensure compliance with a
storm water pollution prevention plan (SWPPP) for the site or other
permit conditions (e.g., they are authorized to direct workers at a
site to carry out activities required by the SWPPP required by
Sec. 450.21(d) or to comply with other permit conditions).
Perimeter controls means best management practices that are
designed to prevent uncontrolled discharge of sediment from the site.
Perimeter controls include BMPs such as diversion dikes, storm drain
inlet protection, berms, and silt fencing.
Qualified professional means a person knowledgeable in the
principles and practice of erosion and sediment controls, such as a
licensed professional engineer, or other knowledgeable person.
[[Page 42685]]
Runoff coefficient means the fraction of total rainfall that will
appear at the conveyance as runoff.
Stabilization means covering or maintaining an existing cover over
soil. Cover can be vegetative (e.g., grass, trees, seed and mulch,
shrubs, or turf) or non-vegetative (e.g., geotextiles, riprap, or
gabions).
Subpart B--Erosion and Sediment Control
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 existing
point source subject to this subpart must achieve the following
effluent limitations representing the application of the best
practicable control technology currently available (BPT). Permittees
with operational control over construction plans and specification,
including the ability to make modifications to those plans and
specifications (e.g., developer or owner), must ensure the project
specifications that they develop meet the minimum requirements of a
SWPPP required by paragraph (d) of this section.
(a) General Erosion and Sediment Controls. Each SWPPP shall include
a description of appropriate controls designed to retain sediment on
site to the extent practicable. These general erosion and sediment
controls shall be included in the SWPPP developed pursuant to paragraph
(d) of this section. The SWPPP must include a description of interim
and permanent stabilization practices for the site, including a
schedule of when the practices will be implemented. Stabilization
practices may include:
(1) Establishment of temporary or permanent vegetation;
(2) Mulching, geotextiles, or sod stabilization;
(3) Vegetative buffer strips;
(4) Protection of trees and preservation of mature vegetation.
(b) Sediment controls. The SWPPP must include a description of
structural practices to divert flows from exposed soils, store flows,
or otherwise limit runoff and the discharge of pollutants from exposed
areas of the site to the degree attainable.
(1) For common drainage locations that serve an area with 10 or
more acres disturbed at one time, a temporary (or permanent) sediment
basin that provides storage for a calculated volume of runoff from a 2
year, 24-hour storm from each disturbed acre drained, or equivalent
control measures, shall be provided where attainable until final
stabilization of the site. Where no such calculation has been
performed, a temporary (or permanent) sediment basin providing 3,600
cubic feet of storage per acre drained, or equivalent control measures,
shall be provided where attainable until final stabilization of the
site. When computing the number of acres draining into a common
location it is not necessary to include flows from off-site areas and
flows from on-site areas that are either undisturbed or have undergone
final stabilization where such flows are diverted around both the
disturbed area and the sediment basin.
(2) In determining whether a sediment basin is attainable, the
operator may consider factors such as site soils, slope, available area
on site, etc. In any event, the operator must consider public safety,
especially as it relates to children, as a design factor for the
sediment basin, and alternative sediment controls shall be used where
site limitations would preclude a safe basin design.
(3) For portions of the site that drain to a common location and
have a total contributing drainage area of less than 10 disturbed
acres, the operator should use smaller sediment basins and/or sediment
traps.
(4) Where neither a sediment basin nor equivalent controls are
attainable due to site limitations, silt fences, vegetative buffer
strips or equivalent sediment controls are required for all down slope
boundaries of the construction area and for those side slope boundaries
deemed appropriate as dictated by individual site conditions.
(c) Pollution Prevention Measures. The SWPPP shall include the
following pollution prevention measures:
(1) Litter, construction chemicals, and construction debris exposed
to storm water shall be prevented from becoming a pollutant source in
storm water discharges (e.g., screening outfalls, picked up daily); and
(2) A description of construction and waste materials expected to
be stored on-site with updates as appropriate, and a description of
controls to reduce pollutants from these materials including storage
practices to minimize exposure of the materials to storm water, and
spill prevention and response.
(d) Storm Water Pollution Prevention Plan. Operators subject to
this part shall compile Storm Water Pollution Prevention Plans (SWPPPs)
prior to groundbreaking at any construction site. In areas where EPA is
not the permit authority, operators may be required to prepare
documents that may serve as the functional equivalent of a SWPPP. Such
alternate documents will satisfy the requirements for a SWPPP so long
as they contain the necessary elements of a SWPPP. A SWPPP shall
incorporate the following information:
(1) A narrative description of the construction activity, including
a description of the intended sequence of major activities that disturb
soils on the site (major activities include grubbing, excavating,
grading, and utilities and infrastructure installation, or any other
activity that disturbs soils for major portions of the site);
(2) A general location map (e.g., portion of a city or county map)
and a site map. The site map shall include descriptions of the
following:
(i) Drainage patterns and approximate slopes anticipated after
major grading activities;
(ii) The total area of the site and areas of disturbance;
(iii) Areas that will not be disturbed;
(iv) Locations of major structural and nonstructural controls
identified in the SWPPP;
(v) Locations where stabilization practices are expected to occur;
(vi) Locations of off-site material, waste, borrow or equipment
storage areas;
(vii) Surface waters (including wetlands); and
(viii) Locations where storm water discharges to a surface water;
(3) A description of available data on soils present at the site;
(4) A description of BMPs to be used to control pollutants in storm
water discharges during construction as described elsewhere in this
section;
(5) A description of the general timing (or sequence) in relation
to the construction schedule when each BMP is to be implemented;
(6) An estimate of the pre-development and post-construction runoff
coefficients of the site;
(7) The name(s) of the receiving water(s);
(8) Delineation of SWPPP implementation responsibilities for each
site owner or operator;
(9) Any existing data that describe the storm water runoff
characteristics at the site.
(e) Updating the SWPPP. The operator shall amend the SWPPP and
corresponding erosion and sediment control BMPs whenever:
(1) There is a change in design, construction, or maintenance that
has a significant effect on the discharge of pollutants to waters of
the United States which has not been addressed in the SWPPP; or
(2) Inspections or investigations by site operators, local, State,
Tribal or
[[Page 42686]]
Federal officials indicate that the SWPPP is proving ineffective in
eliminating or significantly minimizing pollutant discharges.
(f) Site Log Book/Certification. The operator shall maintain a
record of site activities in a site log book, as part of the SWPPP. The
site log book shall be maintained as follows:
(1) A copy of the site log book shall be maintained on site and be
made available to the permitting authority upon request;
(2) In the site log book, the operator shall certify, prior to the
commencement of construction activities, that the SWPPP prepared in
accordance with paragraph (d) of this section meets all Federal, State
and local erosion and sediment control requirements and is available to
the permitting authority;
(3) The operator shall have a qualified professional conduct an
assessment of the site prior to groundbreaking and certify in the log
book that the appropriate BMPs and erosion and sediment controls
described in the SWPPP and required by paragraphs (a), (b), (c) and (d)
of this section have been adequately designed, sized and installed to
ensure overall preparedness of the site for initiation of
groundbreaking activities. The operator shall record the date of
initial groundbreaking in the site log book. The operator shall also
certify that the requirements of paragraphs (g), (h) and (i) of this
section have been satisfied within 48 hours of actually meeting such
requirements;
(4) The operator shall post at the site, in a publicly-accessible
location, a summary of the site inspection activities on a monthly
basis.
(g) Site Inspections. The operator or designated agent of the
operator (such as a consultant, subcontractor, or third-party
inspection firm) shall conduct regular inspections of the site and
record the results of such inspection in the site log book in
accordance with paragraph (f) of this section.
(1) After initial groundbreaking, operators shall conduct site
inspections at least every 14 calendar days and within 24 hours of the
end of a storm event of 0.5 inches or greater. These inspections shall
be conducted by a qualified professional. During each inspection, the
operator or designated agent shall record the following information:
(i) On a site map, indicate the extent of all disturbed site areas
and drainage pathways. Indicate site areas that are expected to undergo
initial disturbance or significant site work within the next 14-day
period;
(ii) Indicate on a site map all areas of the site that have
undergone temporary or permanent stabilization;
(iii) Indicate all disturbed site areas that have not undergone
active site work during the previous 14-day period;
(iv) Inspect all sediment control practices and note the
approximate degree of sediment accumulation as a percentage of the
sediment storage volume (for example 10 percent, 20 percent, 50
percent, etc.). Record all sediment control practices in the site log
book that have sediment accumulation of 50 percent or more; and
(v) Inspect all erosion and sediment control BMPs and record all
maintenance requirements such as verifying the integrity of barrier or
diversion systems (earthen berms or silt fencing) and containment
systems (sediment basins and sediment traps). Identify any evidence of
rill or gully erosion occurring on slopes and any loss of stabilizing
vegetation or seeding/mulching. Document in the site log book any
excessive deposition of sediment or ponding water along barrier or
diversion systems. Record the depth of sediment within containment
structures, any erosion near outlet and overflow structures, and verify
the ability of rock filters around perforated riser pipes to pass
water.
(2) Prior to filing of the Notice of Termination or the end of
permit term, a final site erosion and sediment control inspection shall
be conducted by the operator or designated agent. The inspector shall
certify that the site has undergone final stabilization using either
vegetative or structural stabilization methods and that all temporary
erosion and sediment controls (such as silt fencing) not needed for
long-term erosion control have been removed.
(h) Stabilization. The operator shall initiate stabilization
measures as soon as practicable in portions of the site where
construction activities have temporarily or permanently ceased, but in
no case more than 14 days after the construction activity in that
portion of the site has temporarily or permanently ceased. This
requirement does not apply in the following instances:
(1) Where the initiation of stabilization measures by the 14th day
after construction activity temporarily or permanently ceased is
precluded by snow cover or frozen ground conditions, stabilization
measures shall be initiated as soon as practicable;
(2) Where construction activity on a portion of the site is
temporarily ceased, and earth-disturbing activities will be resumed
within 21 days, temporary stabilization measures need not be initiated
on that portion of the site.
(3) In arid areas (areas with an average annual rainfall of 0 to 10
inches), semi-arid areas (areas with an average annual rainfall of 10
to 20 inches), and areas experiencing droughts where the initiation of
stabilization measures by the 14th day after construction activity has
temporarily or permanently ceased is precluded by seasonably arid
conditions, the operator shall initiate stabilization measures as soon
as practicable.
(i) Maintenance. Sediment shall be removed from sediment traps or
sediment ponds when design capacity has been reduced by 50 percent.
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 existing
point source subject to this subpart must employ the best management
practices (BMPs) in this section, representing the application of the
best available technology economically achievable (BAT): 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 existing
point source subject to this subpart must employ the best management
practices (BMPs) in this section, 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 effluent limitations are the same as
those specified in Sec. 450.21.
[FR Doc. 02-12963 Filed 6-21-02; 8:45 am]
BILLING CODE 6560-50-P