Do We Need a National Standard for Construction Sites?

Always a major focus of erosion and sediment control activity, construction sites will be getting even closer scrutiny over the next several months as USEPA decides how and whether to tighten regulations that cover them. In June, EPA published its proposed rule, “Effluent Limitation Guidelines and New Source Performance Standards for the Construction and Development Category.” Rather than outlining a single plan, the proposal includes three broad options, ranging in scope from almost no change to the way NPDES permitting authorities now operate to setting a national technology-based standard.

The proposal’s overall goal is to reduce the amount of sediment-an estimated 80 million tons of total suspended solids annually-discharged from construction sites and the subsequent damage to water bodies and aquatic habitats. Although EPA acknowledges that existing stormwater regulations already require controls on construction-site runoff, no national standard exists. EPA also points out that enforcement of existing regulations are not consistent from place to place and that resources at every level-federal, state, and local-are in short supply. The new measures would not supersede local or state government standards that are equal to or more rigorous than the proposed new standard but would instead fill in the gaps in areas where local rules, or enforcement, might be lax.

In its most stringent option, the proposal would set effluent limitation guidelines, based on best practicable technology currently available, for controlling stormwater discharges from construction sites of 5 ac. or more. Although none of the options in the proposal includes specific requirements for selecting or implementing permanent stormwater controls or BMPs, this option would require operators at these sites to prepare stormwater pollution prevention plans and design, install, and maintain onsite ESC measures. For various reasons, including their high cost and the difficulty of implementing them, this option does not include discharge monitoring and does not set numerical requirements for pollutant removal or numerical design requirements. The proposal discusses in some detail why EPA considered and rejected these options.

Another option calls for EPA to set minimum standards for site inspection and for certification of controls that are in place to ensure that they meet the site’s permit criteria. This option would cover more numerous smaller construction sites-those of 1 ac. or more-but limits its scope to inspection and certification only. It stops short of establishing technology-based effluent limitation standards, seeking instead to allow the state and local authorities greater leeway in dealing with these smaller sites. With the compliance deadline for NPDES Phase II still several months away, this option would allow Phase II permit authorities to gauge how their permit guidelines are actually working before facing a national standard-leaving actual requirements, as EPA puts it, up to the best professional judgment of the permit authority. (Phase II permits apply to construction sites of 1-5 ac.; Phase I permits apply to sites of 5 ac. or more.)

The third option outlined in the proposal would establish no new requirements, leaving control and certification, again, to the best professional judgment of the NPDES permit authority and thus allowing the greatest flexibility.

If the rule is adopted, each construction site to which it applies would need to comply with the new standards at the time its NPDES permit is issued, reissued, or modified.

Will a stronger federal mandate bring better results? Even with more consistent national guidelines in place, will individual permit authorities still face the same lack of resources that currently hinders inspections in many states? Will the lack of flexibility to tailor programs to local conditions lead to a more complex, and less efficient, system? It seems logical, with the Phase II deadline so close and considering the tremendous effort many communities have put into preparing for permit coverage, to evaluate the results of Phase II on construction site runoff before making a change that affects smaller sites.

You can find the full text of EPA’s proposal at www.epa.gov/fedrgstr (click on June 24-the proposal’s release date-on the online calendar). As it has with other proposed rules, EPA is inviting public comment and will hold public meetings around the country beginning in July before deciding which option to choose. Written comments on the proposal must reach EPA by October 22, 2002.