Pursuant to a settlement agreement to resolve litigation, US EPA is proposing changes to the effluent limitations guidelines and standards for the Construction and Development point source category. This proposed rule would withdraw the numeric discharge standards, which are currently stayed, and change several of the non-numeric provisions of the existing rule. Comments on the proposed rule are being accepted through May 31, 2013.
The revisions to 40 CFR part 450 now being proposed by EPA consist of the following three elements:
- Addition of a definition of “infeasible” consistent with the preamble to the 2009 final rule and 2012 CGP;
- Revisions to the effluent limitations reflecting the best practicable control technology currently available (BPT), effluent limitations reflecting the best available technology economically achievable (BAT), effluent limitations reflecting the best conventional pollutant control technology (BCT), and the new source performance standards reflecting the best available demonstrated control technology (NSPS) found at 40 CFR 450.21, 450,22, 450.23 and 450.24, respectively; and
- Withdrawing the numeric turbidity effluent limitation and monitoring requirements found at 40 CFR 450.22(a) and 450.22(b) and reserving these subparts.
As background, in 2009 EPA promulgated Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (“C rule”). The final rule established requirements based on Best Practicable Control Technology Currently Available, Best Available Technology Economically Achievable, Best Conventional Pollutant Control Technology, and New Source Performance Standards based on Best Available Demonstrated Control Technology. The rule also included non-numeric requirements to implement erosion and sediment controls, stabilize soils, manage dewatering activities and implement other pollution prevention measures. The December 2009 final rule also established a numeric limitation on the allowable level of turbidity in discharges from certain construction sites. The technology basis for the final numeric limitation was passive treatment controls including polymer-aided settling to reduce the turbidity in discharges.
Following promulgation of the 2009 final rule, several organizations filed petitions for administrative reconsideration of several technical aspects of the C Rule. In 2010, EPA filed an unopposed motion with the Court seeking to hold the litigation in abeyance until February 15, 2012 and asking the Court to remand the record to EPA and vacate the numeric limitation portion of the rule. In addition, EPA agreed to reconsider the numeric limitation and to solicit site-specific information regarding the applicability of the numeric effluent limitation to cold weather sites and to small sites that are part of a larger project. In response, the Court issued an order remanding the matter to the Agency but without vacating the numeric limitation.
In November 2010, EPA issued a direct final regulation and a companion proposed regulation to stay the numeric limitation at 40 CFR 450.22 indefinitely. Since no adverse comments were received, the direct final rule took effect on January 4, 2011. States are no longer required to incorporate the numeric turbidity limitation and monitoring requirements found at §450.22(a) and §450.22(b) into NPDES permits because the numeric limitation was stayed. However, the remainder of the regulation was still in effect and was to be incorporated into newly issued NPDES permits. The current proposed rule modifies these requirements.