[Federal Register: June 24, 2002 (Volume 67, Number 121)] [Proposed Rules] [Page 42643-42686] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr24jn02-28] [[Page 42643]] ----------------------------------------------------------------------- Part III Environmental Protection Agency ----------------------------------------------------------------------- 40 CFR Parts 122 and 450 Effluent Limitation Guidelines and New Source Performance Standards for the Construction and Development Category; Proposed Rule [[Page 42644]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 ow-docket@epa.gov. 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: ------------------------------------------------------------------------ North American Industry Category Examples of Classification regulated entities System (NAICS) code ------------------------------------------------------------------------ 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 ------------------------------------------------------------------------ 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 [[Page 42645]] 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 [[Page 42646]] 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)). [[Page 42647]] 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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 v