The U.S. Environmental Protection Agency (EPA) has been bombarded with feedback regarding its proposal to address storm water discharges from construction and development sites.

Eric Strassler, the EPA’s project manager for the new regulatory guidelines, said the construction industry is a major contributor to the pollution problem associated with storm water runoff from job sites. The EPA began developing proposals for the construction and development industry in late 1998 and issued its preliminary recommendations earlier this year.

“Construction activities like clearing, excavating and grading significantly disturb the land,” said Strassler. “The disturbed soil, if not managed properly, can be washed off site during storms. With the runoff comes an increase in sedimentation. Sedimentation problems range from reduced passage in rivers and streams to higher drinking water treatment costs for removing the sediment.”

The proposal includes three options that would work in conjunction with existing storm water regulations. One approach calls for the implementation of technology-based effluent limitation guidelines (ELGs), which would tell contractors what must be done to control erosion and sedimentation at construction sites.

Strassler said this option would apply to construction sites with five or more acres of disturbed land where a National Pollutant Discharge Elimination System (NPDES) permit must be obtained. The ELGs, national standards developed by the EPA on an industry-by-industry basis, would specify the design criteria for runoff controls and include site inspection and certification requirements.

The EPA estimates the ELG approach would cost the industry approximately $505 million in annual compliance requirements but would reduce the discharge of pollutants by 11 million tons per year.

The second option, expected to have an annual compliance cost of $130 million, would amend the existing storm water permit regulations with minimum requirements for conducting site inspections and certification related to design and completion of controls. EPA expects this approach, which would apply to all sites of one acre or more, to reduce the discharge of pollutants by 5 million tons each year.

The third option simply relies on the effective implementation and enforcement of existing regulations and does not add any new requirements. Therefore, there would be no additional compliance costs.

Strassler said the proposal stems from a lawsuit that was filed against the EPA by the Natural Resources Defense Council (NRDC), a Washington, D.C.-based nonprofit organization dedicated to protecting public health and the environment. The legal action, filed in October 1989, alleged the EPA was not living up to its obligations under the Clean Water Act (CWA).

The suit resulted in a consent decree which was signed by EPA officials in early 1992. Under the terms of the original consent decree and subsequent amendments, EPA agreed to propose guidelines for the construction and development industry by May 15, 2002, and to take final action on the recommendations by March 31, 2004.

“The current program run by the EPA under the CWA requires builders to get permits for storm water runoff and storm water pollution prevention plans are required,” said Strassler. “However, the current program does not set discharge standards. There is a requirement in the current guidelines for general erosion sediment controls, but there’s nothing more specific. The ELGs would provide additional specifications.”

The existing national storm water regulations and permits require construction site operators to implement site runoff but do not mandate any specific level of control.

NRDC officials have conducted research on 100 case studies from which samples were drawn to determine what constitutes a successful storm water control program. According to the NRDC, an effective storm water control program must contain the following elements:

• Advance planning and setting clear goals;

• Encouraging and facilitating broad government and community participation;

• Prioritizing pollution prevention over treatment of polluted runoff;

• Establishing and maintaining accountability of partners and citizens;

• Creating a stable funding source such as a storm water utility;

• Tailoring strategies to local needs and problems;

• Including education, public participation, monitoring and enforcement;

• Evaluating and improving programs as they evolve; and

• Recognizing and publicizing the quality-of-life benefits of parks, ponds and clean streets.

Nancy Stoner, director of NRDC’s Clean Water Project, said the CWA has done its job in many ways, but there is much more work to be done. She said 218 million Americans still live within 10 miles of a polluted lake, river, stream or coastal area and approximately 45 percent of the nation’s assessed waters are still unsafe for fishing, swimming or supporting aquatic life.

Strassler said the EPA fully expects the NRDC to make its opinion known by submitting comments to the agency. The EPA has extended its comment period for receiving input on the three options until Dec. 23. Strassler encourages industry groups to submit detailed comments that will be analyzed by the EPA. He said it is possible for the EPA to amend one of its proposals in light of the comments.

“The guidelines would not be finalized until 2004 and they would probably only apply to future construction projects and not ones that are already under way,” added Strassler. “Each state would have to adopt the new regulations and each state could make the guidelines more stringent than the federal regulations. The EPA would set a basic national standard. It was never the EPA’s intention that the new guidelines would solve all of the water pollution problems associated with this particular industry.

“The Associated General Contractors of America (AGC) in Alexandria, VA, was among the trade groups that urged EPA Administrator Christine Todd Whitman to extend the comment period from Oct. 22 to Dec. 23. AGC officials said the length and complexity of the proposed rule and supporting documents make the review of the proposal a very time-consuming process.

Leah Wood, environmental counsel of the AGC, said the extension also was necessary because the EPA has not released its new Construction General Permit (Storm Water Phase II) for public comment. She said a thorough review of this permit should be made to evaluate the impact of the EPA’s proposal on the construction industry.

“Congress amended the CWA in 1987 and required a national program to control pollution from storm water runoff to be implemented in two phases,” said Wood. “This program says to contractors that you’re allowed to discharge storm water from a job site as long as you have a permit. The permitting process was established in two phases.

“Phase I was finalized in 1990 and requires permits for storm water discharges from construction sites that affect five acres of land or more,” she added. “Phase II was finalized in 1999 and dropped the acreage threshold to one acre. However, Phase II will not take effect until March 10, 2003, so we have not seen the impact or benefits of this phase yet.”

Wood said the EPA has been working on storm water regulations for various industries for 13 years, but the NRDC deemed the agency’s progress to be too slow. She also noted that ELGs are nothing new since the EPA has already set these guidelines for more than 50 other industries.

’’The ELGs are designed to create a technology-based standard for the industry across the nation. The standard would set a level of control that the industry would have to meet using the best available technology that’s economically achievable to control pollutants in storm water runoff,” said Wood. “If the bar is raised, the new standard will be incorporated into existing storm water permits that our contractors already have to obtain.”

Wood said the overall impact of the EPA’s proposal will depend on which of the three options the agency chooses to implement. She said the three options are more satisfactory to the industry than previous ideas that were being considered by the EPA.

At one time, the agency considered imposing numeric limits that would have required contractors to send samples of runoff from multiple points on a project site to a laboratory for testing. Wood said the contractor would have been subject to fines if total suspended solids, or sediment, exceeded the specified levels.

“EPA also considered making contractors responsible for runoff after completion of a project by establishing post-construction requirements,” noted Wood. “Either of these approaches would have added tremendous expense, uncertainty and potential delay to millions of construction projects each year. The proposed guidelines replace these unworkable and onerous approaches with rules that are a win-win situation. The AGC believes the proposal meets the consent decree, as well as the statutory and legal obligations under the CWA.”

Wood said the new guidelines would only impact projects that are covered under a storm water permit. Contractors who do not need this type of permit for their particular job will not be impacted.

One of the biggest concerns presented by AGC members involves the competitive bidding process, especially because competition throughout the industry is stiff at this time. Wood said some contractors may view erosion and sediment control as being secondary to the primary scope of a project.

Therefore, contractors who include the cost of the controls into a higher bid may lose a potential job.

“Another troubling scenario that we’re concerned about is the education of contractors. If several contractors are bidding on a project and not everyone is aware of the guidelines, not everyone is going to figure it into their bid,” said Wood. “That’s why AGC is working hard to educate its members because it’s important to have a level playing field.”

Wood said a situation also could be created where contractors pass along the cost of compliance to the developers, who may be forced to complete fewer projects due to the additional expense.

The EPA created its three options after reviewing information on industry practices, characteristics of discharges, technology and practices used to prevent or treat the discharge and the economic financial characteristics. Strassler said the EPA identifies the best available technology that is economically attainable for a certain industry and then sets regulatory requirements based on the performance of that technology. The standards are then incorporated into the NPDES permits which are issued by regional offices of the EPA and individual states.