Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category, 72562-72614 [E8-27848]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Proposed Rules]
[Pages 72562-72614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27848]



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Part II





Environmental Protection Agency





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40 CFR Part 450



Effluent Limitations Guidelines and Standards for the Construction and 
Development Point Source Category; Proposed Rule

Federal Register / Vol. 73, No. 230 / Friday, November 28, 2008 / 
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 450

[EPA-HQ-OW-2008-0465; FRL-8744-1]
RIN 2040-AE91


Effluent Limitations Guidelines and Standards for the 
Construction and Development Point Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing a regulation 
that would strengthen the existing regulatory program for discharges 
from construction sites by establishing technology-based Effluent 
Limitations Guidelines and New Source Performance Standards for the 
Construction and Development (C&D) point source category. This 
proposal, if implemented, would significantly reduce the amount of 
sediment and other pollutants discharged from construction sites. EPA 
estimates that this proposed rule would cost $1.9 billion dollars per 
year with annual monetized benefits of $332.9 million. This proposed 
rule requests comment and information on the proposed regulation and an 
alternate option with a different numeric limit based on different 
technologies, as well as specific aspects of the proposal such as 
technologies, costs, loading reductions, and economic achievability.

DATES: Comments must be received on or before February 26, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2008-0465, by one of the following methods:
     https://www.regulations.gov: This is EPA's preferred 
approach, although you may use the alternatives presented below. Follow 
the on-line instructions for submitting comments.
     E-mail: OW-Docket@epa.gov.
     Mail: USEPA Docket Center, Environmental Protection 
Agency, Docket Number EPA-HQ-OW-2008-0465, Mailcode 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: USEPA Docket Center, Public Reading Room, 
1301 Constitution Ave., NW., Room 3334, EPA West Building, Washington 
DC 20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2008-
0465. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the USEPA Docket 
Center, Public Reading Room, Room 3334, EPA West Building, 1301 
Constitution Ave., NW., Washington DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the EPA Docket Center is (202) 
566-2426. Please note that several of the support documents are 
available at no charge on EPA's Web site; see Supporting Documentation 
below.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
today's proposed rule, contact Mr. Jesse W. Pritts at 202-566-1038 
(pritts.jesse@epa.gov). For economic information contact Mr. Todd Doley 
at 202-566-1160 (doley.todd@epa.gov).

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action include:

------------------------------------------------------------------------
                                                         North American
                                                            Industry
          Category             Examples of regulated     Classification
                                      entities           System (NAICS)
                                                              code
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Industry                      Construction activities required to obtain
                                NPDES permit coverage and performing the
                                         following activities:
                             -------------------------------------------
                                Construction of                      236
                                 buildings, including
                                 building, developing
                                 and general
                                 contracting.
                                Heavy and civil                      237
                                 engineering
                                 construction,
                                 including land
                                 subdivision.
------------------------------------------------------------------------

    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

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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.

Supporting Documentation

    Several key documents support the proposed regulation:
    1. ``Development Document for Proposed Effluent Guidelines and 
Standards for the Construction and Development Category,'' EPA-821-R-
08-007. (``Development Document'') This document presents EPA's 
methodology and technical conclusions concerning the C&D category.
    2. ``Economic Analysis for Proposed Effluent Guidelines and 
Standards for the Construction and Development Category,'' EPA-821-R-
08-008. (``Economic Analysis'') This document presents the methodology 
employed to assess economic impacts of the proposed rule and the 
results of the analysis.
    3. ``Environmental Impact and Benefits Assessment for Proposed 
Effluent Guidelines and Standards for the Construction and Development 
Category,'' EPA-821-R-08-009 (``Environmental Assessment''). This 
document presents the methodology to assess environmental impacts and 
benefits of the proposed rule and the results of the analysis.
    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, https://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 Web site for 
the C&D rule, https://www.epa.gov/waterscience/guide/construction.

Overview

    This preamble describes the terms, acronyms, and abbreviations used 
in this document; the background documents that support these proposed 
regulations; the legal authority of this proposed rule; a summary of 
the proposal; background information; and the technical and economic 
methodologies used by the Agency to develop this proposed regulation. 
While EPA solicits comments on this entire proposal, EPA emphasizes 
specific areas of interest where we would particularly like comments, 
information and data.

Table of Contents

I. Legal Authority
II. Purpose & Summary of the Proposed Rule
III. Background on Existing Regulatory Program
    A. Clean Water Act
    B. NPDES Stormwater Permit Program
    C. Other State and Local Stormwater Requirements
    D. Technology-Based Effluent Limitations Guidelines and 
Standards
IV. Scope of the Proposal
V. Overview of the Construction and Development Industry and 
Construction Activities
VI. Summary of Data Collection Activities
    A. State Data
    B. National Land Cover Dataset (NLCD)
    C. Enhanced River Reach File 1.2 (ERF1)
    D. NPDES Notice of Intent (NOI) Data
    E. Soils Data
    F. NOAA Rainfall Data
    G. Parameter Elevation Regressions on Independent Slopes Model 
(PRISM)
    H. Revised Universal Soil Loss Equation (RUSLE) R Factors
    I. Economic Data
VII. Characteristics of Discharges From Construction Activity
VIII. Description of Available Technologies
    A. Introduction
    B. Erosion Control Measures
    C. Sediment Control Measures
    D. Other Construction and Development Site Management Practices
IX. Development of Effluent Limitations Guidelines and Standards
    A. Description of the Regulatory Options Considered
    B. Effluent Limitations Included in All Regulatory Options
    C. Options for BPT, BCT, BAT and NSPS
    D. Option Selection Rationale for BPT
    E. Option Selection Rationale for BAT and NSPS
    F. Option Selection Rationale for BCT
X. Methodology for Estimating Costs to the Construction and 
Development Industry
XI. Economic Impact and Social Cost Analysis
    A. Introduction
    B. Description of Economic Activity
    C. Method for Estimating Economic Impacts
    D. Results
XII. Cost-Effectiveness Analysis
XIII. Non Water-Quality Environmental Impacts
    A. Air Pollution
    B. Solid Waste Generation
    C. Energy Usage
XIV. Environmental Assessment
    A. Introduction
    B. Methodology for Estimating Environmental Impacts and 
Pollutant Reductions
XV. Benefit Analysis
    A. Benefits Categories Estimated
    B. Quantification of Benefits
XVI. Monetized Benefit-Cost Comparison
XVII. Approach to Determining Long-Term Averages, Variability 
Factors, and Effluent Limitations and Standards
    A. Definitions
    B. Data Selection
    C. Statistical Percentile Basis for Limitations
    D. Daily Maximum Limitations
    E. Engineering Review of Limitations
    F. Monthly Average Limitations
XVIII. Regulatory Implementation
    A. Relationship of Effluent Guidelines to NPDES Permits and ELG 
Compliance Dates
    B. Upset and Bypass Provisions
    C. Variances and Waivers
    D. Other Clean Water Act Requirements
XIX. Related Acts of Congress, Executive Orders, and Agency 
Initiatives
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211 (Energy Effects)
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations.
XX. Solicitation of Data and Comments
    A. General Solicitation of Comment
    B. Specific Solicitation of Comments and Data
    C. Guidelines for Submission of Analytical Data

I. Legal Authority

    EPA is proposing this regulation under the authorities of sections 
301, 304, 306, 308, 402, 501 and 510 of the Clean Water Act (CWA), 33 
U.S.C. 1311, 1314, 1316, 1318, 1342, 1361 and 1370 and pursuant to the 
Pollution Prevention Act of 1990, 42 U.S.C. 13101 et seq.

II. Purpose & Summary of the Proposed Rule

    Despite substantial improvements in the nation's water quality 
since the inception of the Clean Water Act, 45 percent of assessed 
river and stream miles, 47 percent of assessed lake acres, and 32 
percent of assessed square miles of estuaries show impairments from a 
wide range of sources. Improper control of stormwater discharges from 
construction activity is among the many contributors of sediment which 
is one of the major remaining water quality problems throughout the 
United States. Sediment is the leading cause of water quality 
impairment for streams and rivers. It is also one of the leading causes 
of lake and reservoir water quality impairment and wetland degradation. 
Turbidity and suspended solids are also major sources of water quality 
impairment nationwide. Turbidity or suspended solids impair 695,133 
miles of streams nationwide. In

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addition, 376,832 acres of lakes and reservoirs have been documented as 
impaired by turbidity or suspended solids nationwide. The sediment and 
turbidity entrained in stormwater discharges from construction activity 
contributes to harm in aquatic ecosystems, increases drinking water 
treatment costs, and contributes to impairment to recreational uses of 
impacted waters. Sediment can also accumulate in rivers, lakes, and 
reservoirs, leading to the need for dredging or other mitigation.
    Construction activity typically involves site selection and 
planning, and land-disturbing tasks such as clearing, excavating and 
grading. Disturbed soil, if not managed properly, can be easily washed 
off-site during storm events. Stormwater discharges generated during 
construction activities can cause an array of physical, chemical and 
biological impacts. Sediment discharges can cause an array of physical 
and biological impacts on receiving waters. In addition to sediment, a 
number of other pollutants (e.g., metals and nutrients) are 
preferentially absorbed or adsorbed onto mineral or organic particles 
found in fine sediment. These pollutants can cause an array of chemical 
and biological water quality impairments. The interconnected processes 
of erosion (i.e., detachment of soil particles by water), sediment 
transport, and delivery to receiving waters are the primary pathways 
for the addition of pollutants from construction and development (C&D) 
sites into aquatic systems.
    A primary concern at most C&D 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 sediment to water bodies. Although streams and rivers 
naturally carry sediment loads, discharges from construction activity 
can elevate these loads to levels above those in undisturbed 
watersheds.
    Existing national stormwater regulations at 40 CFR 122.26 require 
permittees to implement control measures to manage discharges 
associated with construction activity. Today's proposal would establish 
a technology-based ``floor'' or minimum requirements on a national 
basis. This rule would constitute the nationally applicable, 
technology-based effluent limitations guidelines (ELGs) and new source 
performance standards (NSPS) (referred to collectively in this notice 
as ``ELGs'' or ``effluent limitations guidelines,'' unless specifically 
referencing NSPS), applicable to all dischargers currently required to 
obtain a National Pollutant Discharge Elimination System (NPDES) permit 
pursuant to 40 CFR 122.26(b)(14)(x) and 122.26(b)(15). The proposed 
ELGs would require stormwater discharges from certain C&D sites to meet 
effluent limitations designed to reduce the amount of sediment, 
turbidity, Total Suspended Solids (TSS) and other pollutants in 
stormwater discharges from the site. EPA acknowledges that many state 
and local governments have existing effluent limitations and standards 
for controlling stormwater and wastewater discharges from construction 
sites. Today's proposed ELGs are intended to work in concert with these 
existing state and local programs. Today's proposed regulation would 
establish a numeric effluent limit for turbidity in discharges from 
some C&D sites. EPA envisions these turbidity effluent limits as 
requiring an additional layer of management practices and/or treatment 
above what most state and local programs are currently requiring. 
Permitting authorities would be required to incorporate these turbidity 
limitations into their permits and permittees would be required to 
implement control measures to meet a numeric turbidity limit in 
discharges of stormwater from their C&D sites. EPA is not dictating 
that a specific technology be used to meet the numeric limit, but is 
specifying the maximum turbidity level that can be present in 
discharges from C&D sites. However, EPA's proposed limits are based on 
its assessment of what specific technologies can reliably achieve. 
Permittees would have the flexibility to select management practices 
that are best suited to site-specific conditions present on each 
individual C&D site if they are able to consistently meet the limits.

III. Background on Existing Regulatory Program

A. Clean Water Act

    Congress passed the Federal Water Pollution Control Act of 1972 
(Pub. L. 92-500, October 18, 1972) (hereinafter the Clean Water Act or 
CWA), 33 U.S.C. 1251 et seq., with the stated objectives 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 provides that ``the discharge of any pollutant by any 
person shall be unlawful'' except in compliance with other provisions 
of the statute. CWA section 301(a). U.S.C. 1311. The CWA defines 
``discharge of a pollutant'' broadly to include ``any addition of any 
pollutant to navigable waters from any point source.'' CWA section 
502(12). 33 U.S.C. 1362(12). EPA is authorized under CWA section 402(a) 
to issue a National Pollutant Discharge Elimination System (NPDES) 
permit for the discharge of any pollutant from a point source 
notwithstanding Section 301(a). These NPDES permits are issued by EPA 
regional offices or NPDES authorized state or tribal agencies. Since 
1972, EPA and the states have issued NPDES permits to thousands of 
dischargers, both industrial (e.g., manufacturing, energy and mining 
facilities) and municipal (e.g., sewage treatment plants). As required 
under Title III of the CWA, EPA has promulgated ELGs and standards for 
many industrial point source categories, and these requirements are 
incorporated into the permits.
    The Water Quality Act of 1987 (Pub. L. 100-4, February 4, 1987) 
amended the CWA, adding CWA section 402(p) to require implementation of 
a comprehensive program for addressing stormwater discharges. 33 U.S.C. 
1342(p). The NPDES program was expanded by requiring EPA or NPDES 
authorized states or tribes to issue NPDES permits for stormwater 
discharges listed under Section 402(p)(2), which include municipal and 
industrial stormwater discharges. Industrial stormwater dischargers, 
municipal separate storm sewer systems and other stormwater dischargers 
designated by EPA must obtain NPDES permits pursuant to CWA section 
402(p). Stormwater discharges associated with industrial activity must 
meet all applicable provisions of CWA sections 301 and 402, including 
meeting technology-based effluent limitations.

B. NPDES Stormwater Permit Program

    EPA's Phase I stormwater regulations promulgated in 1990 identified 
stormwater discharges associated with construction activity as one of 
several types of industrial activity requiring an NPDES permit. 
Dischargers must apply for and obtain authorization to discharge (or 
``permit coverage'') (40 CFR 122.26(b)(14)(x) and (c)(1)). As described 
in the Phase I regulations, a permit is required for discharges 
associated with construction activity, including clearing, grading, and 
excavation, if the construction activity:
     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.


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EPA defines these ``large'' construction sites as one of the eleven 
categories of stormwater dischargers associated with industrial 
activity. (See 40 CFR 122.26(b)(14)).
    The Phase II stormwater regulations, promulgated in 1999, extended 
permit coverage to construction activity that results in land 
disturbance of one acre or greater (40 CFR 122.26(b)(15)), including 
sites less than one acre that are part of a larger common plan of 
development or sale whose total land disturbing activities total more 
than an acre. EPA's NPDES regulations define these sites, i.e., sites 
disturbing between one and five acres, as ``small'' construction sites.
    In addition to requiring permits for discharges associated with 
construction activity, the NPDES regulations require permits for 
certain municipal separate storm sewer systems (MS4s). Operators of 
these MS4s, typically local governments, must develop and implement a 
stormwater management program, including a requirement to address 
stormwater discharges from construction activity. More details on the 
requirements of MS4 programs are described in section III.B.2.
1. Stormwater Permits for Construction Activity
    The NPDES regulations provide two options for obtaining 
authorization to discharge or ``permit coverage'': General permits and 
individual permits. A brief description of these types of permits as 
they apply to construction sites follows.
a. General NPDES Permits
    The vast majority of discharges from construction activity are 
covered under NPDES general permits. EPA, states and tribes use general 
permits to cover a group of similar dischargers under one permit. See 
40 CFR 122.28. General permits simplify the process for dischargers to 
obtain authorization to discharge, provide permit requirements for any 
discharger that files a notice of intent to be covered, and reduce the 
administrative workload for NPDES permitting authorities. General 
permits, including a fact sheet describing the rationale for permit 
conditions, are issued by NPDES permitting authorities through public 
notice. Typically, to obtain authorization to discharge under a 
construction general permit, a discharger (typically, a developer, 
builder, or contractor) submits to the permitting authority a Notice of 
Intent (NOI) to be covered under the general permit. By submitting the 
NOI, the discharger acknowledges that it is eligible for coverage under 
the general permit and agrees to the conditions in the published 
general permit. Discharges from the construction activity are 
authorized consistent with the terms and conditions established in the 
general permit.
    EPA regulations allow NPDES permitting authorities to regulate 
discharges from small C&D sites under a general permit without the 
discharger submitting an NOI if the permitting authority determines an 
NOI is inappropriate and the general permit includes language 
acknowledging that an NOI is unnecessary (40 CFR 122.28(b)(2)(v)). To 
implement such a requirement, the permitting authority must specify in 
the public notice of the general permit any reasons why an NOI is not 
required. In these instances, any stormwater discharges associated with 
small construction activity are automatically covered under an 
applicable general permit and the discharger is required to comply with 
the terms, conditions and effluent limitations of such permit.
    Similarly, EPA, states and tribes have the authority to notify a 
C&D site operator that it is covered by a general permit, even if that 
operator has not submitted an NOI (40 CFR 122.28(b)(2)(vi)). In these 
instances, the operator is given the opportunity to request coverage 
under an individual permit. Individual permits are discussed in section 
III.B.1.d.
b. EPA Construction General Permit
    Since 1992, EPA has issued a series of ``national'' Construction 
General Permits (CGP) that cover areas where EPA is the NPDES 
permitting authority. At present, EPA is the permitting authority in 
five states (Alaska, Idaho, Massachusetts, New Hampshire, and New 
Mexico), the District of Columbia, Puerto Rico, all other U.S. 
territories with the exception of the Virgin Islands, federal 
facilities in four states (Colorado, Delaware, Vermont, and 
Washington), most Indian lands and a couple of other specifically 
designated activities in specific states (e.g., oil and gas activities 
in Texas and Oklahoma). EPA issued a final ``national'' CGP on July 1, 
2003 (63 FR 7898), modified on November 22, 2004 (changes effective 
January 21, 2005). EPA's current CGP became effective on June 30, 2008 
(see 74 FR 40338). Following promulgation of the effluent limitations 
guidelines, EPA will issue a revised CGP incorporating the new ELGs.
    The key component of EPA's CGP is the requirement to minimize 
discharges of pollutants in stormwater discharges using control 
measures that reflect best engineering practices. Dischargers must 
minimize their discharge of pollutants in stormwater using appropriate 
erosion and sediment control ``best management practices'' (BMPs) and 
control measures for other pollutants such as litter, construction 
debris, and construction chemicals that could be exposed to stormwater 
and other wastewater. The 2008 CGP requires dischargers to develop and 
implement a stormwater pollution prevention plan (SWPPP) to document 
the steps they will take to comply with the terms, conditions and 
effluent limitations of the permit. EPA's guidance manual, ``Developing 
Your Stormwater Pollution Prevention Plan: A Guide for Construction 
Sites,'' (EPA 833/R-060-04, May 2007; available on EPA's Web site at 
https://www.epa.gov/npdes/stormwater) describes the SWPPP process in 
detail. As detailed in EPA's CGP, the SWPPP must include a description 
of the C&D site with maps showing drainage patterns, discharge points, 
and locations of runoff controls; a description of the control measures 
used; and inspection procedures. A copy of the SWPPP must be kept on 
the construction site from the date of project initiation to the date 
of final stabilization. The CGP does not require permittees to submit a 
SWPPP to the permitting authority; however a copy must be readily 
available to authorized inspectors during normal business hours.
    Other requirements in the CGP include conducting regular 
inspections and reporting releases of reportable quantities of 
hazardous substances.
    To discontinue permit coverage, a discharger must either 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 the 
property to the homeowner. The permittee submits a Notice of 
Termination (NOT) Form to the permitting authority upon satisfying the 
appropriate permit termination conditions described in the CGP.
c. State Construction General Permits
    Whether EPA, a state or a tribe issues the general permit, the CWA 
requires that NPDES permits must include technology-based effluent 
limitations. In addition, where technology-based effluent limitations 
are insufficient for the discharge to meet applicable water quality 
standards, the permit must contain water quality-based effluent 
limitations as necessary to meet those standards. See sections 301, 
304, 303, 306, and 402 of the CWA. PUD No. 1 of Jefferson County v. 
Washington Department of Ecology, 511 U.S. 700, 704-705 (1994).

[[Page 72566]]

    For the most part, state-issued general permits for stormwater 
discharges from construction activity have followed EPA's CGP format 
and content, starting with EPA's first CGP issued in 1992 (57 FR 41176; 
September 9, 1992). Over time, some states have changed components of 
their permits to better address the specific conditions encountered at 
construction sites within their jurisdiction (e.g., soil types, 
topographic or climatic characteristics, or other relevant factors). 
For example, Washington, Oregon and Vermont's CGPs include turbidity 
action levels and discharge monitoring requirements for C&D sites 
applicable to all or a subset of construction sites.
d. Individual NPDES Permits
    A permitting authority may require any C&D site to apply for an 
individual permit rather than using the general permit. Likewise, any 
discharger may request to be covered under an individual permit rather 
than seek coverage under an otherwise applicable general permit (40 CFR 
122.28(b)(3)). Unlike a general permit, an individual permit is 
intended to be issued to one permittee, or a few co-permittees. 
Individual permits for stormwater discharges from construction sites 
are rarely used, but when done so, are most often used for very large 
projects or projects located in sensitive watersheds. EPA estimates 
that fewer than one half of one percent (< 0.5%) of all construction 
sites are covered under individual permits.
2. Municipal Stormwater Permits and Local Government Regulation of 
Stormwater Discharges Associated With Construction Activity
    Many local governments, as MS4 permittees, have a role to play in 
the regulation of construction activities. This section provides an 
overview of MS4 responsibilities associated with controlling stormwater 
discharges from construction activity.
a. NPDES Requirements
    A municipal separate storm sewer system (MS4) is a conveyance or 
system of conveyances designed or used for collecting or conveying 
stormwater. These systems are not combined sewers and not part of a 
Publicly Owned Treatment Works (POTW). See 40 CFR 122.26(b)(8). A 
municipal separate storm sewer system (MS4) is all large, medium, and 
small municipal storm sewers or those designated as such under the 
regulations. See 40 CFR 122.26(b)) (18). The NPDES stormwater 
regulations require many MS4s to apply for permits. In general, the 
1990 Phase I rule requires MS4s serving populations of 100,000 or more 
to obtain coverage under an MS4 individual permit. See 40 CFR 
122.26(a)(3). The 1999 Phase II rule requires most small MS4s located 
in urbanized areas also to obtain coverage. See 40 CFR 122.33. The 
Phase II regulations also provide permitting authorities with the 
authority to designate any additional MS4s located outside of urbanized 
areas for permit coverage where the permitting authority determines 
that storm water controls are needed for the discharge based on 
wasteload allocations that are part of total maximum daily loads that 
address pollutants of concern or the permitting authority or the EPA 
Regional Administrator determines that the discharge, or category of 
discharges within a geographic area, contributes to a violation of a 
water quality standard or is a significant contributor of pollutants to 
waters of the United States. 40 CFR 122.26(9)(i)(C) and (D). Regardless 
of the type of permit, MS4s are required to develop stormwater 
management programs that detail the procedures they will use to control 
discharges of pollutants in stormwater from the MS4.
    Both the Phase I and II rules require regulated municipalities to 
develop comprehensive stormwater management programs which include, 
among other elements, the regulation of discharges from construction 
sites. The Phase I regulations require medium and large MS4s to 
implement and maintain a program to reduce pollutants in stormwater 
runoff from construction sites, including procedures for site planning, 
requirements for structural and non-structural BMPs, procedures for 
identifying priorities for inspecting sites and enforcing control 
measures, and development and dissemination of appropriate educational 
and training materials. In general, the Phase II regulations require 
small MS4s to develop, implement, and enforce a program to control 
pollutants in stormwater runoff from construction activities which 
includes developing an ordinance to require implementation of erosion 
and sediment control practices, to control waste and to have procedures 
for site plan review and site inspections. Thus, as described above, 
both the Phase I and Phase II regulations specifically anticipate a 
local program for regulating stormwater discharges from construction 
activity. See 40 CFR 122.26(d)(2)(iv)(D) for Phase I MS4s and 40 CFR 
122.34(b)(4) for Phase II MS4s. EPA has provided many guidance 
materials to the NPDES permitting authorities and MS4s that recommend 
components and activities for a well-operated local stormwater 
management program.
    EPA promulgated two provisions intended to minimize potential 
duplication of requirements or inconsistencies between requirements. 
First, 40 CFR 122.35 provides that a small MS4 is allowed to rely on 
another entity to satisfy its NPDES permit obligations, including 
construction site control, provided the other entity implements a 
program that is at least as stringent as the corresponding NPDES permit 
requirements and the other entity agrees to implement the control 
measures on the small MS4's behalf. Thus, for example, where a county 
implements a construction site stormwater control program already, and 
that program is at least as stringent as the controls required by a 
small MS4's NPDES permit, the MS4 may reference that program in the 
Notice of Intent to be covered by a general permit, or in its permit 
application, rather than developing and implementing a new program to 
require control of construction site stormwater within its 
jurisdiction.
    Similarly, EPA or the state permitting authority may substitute 
certain aspects of the requirements of the EPA or state permit by 
incorporating by reference the requirements of a ``qualifying local 
program'' in the EPA or state CGP. A ``qualifying local program'' is an 
existing sediment and erosion control program that meets the minimum 
requirements as established in 40 CFR 122.44(s). By incorporating a 
qualifying local, state or tribal program into the EPA or state CGP, 
construction sites covered by the qualifying program in that 
jurisdiction would simply follow the incorporated local requirements in 
order to meet the corresponding requirements of the EPA or state CGP.
b. EPA Guidance to Municipalities
    EPA developed several guidance documents for municipalities to 
implement the NPDES Phase II rule.
     National Menu of BMPs (https://www.epa.gov/npdes/
menuofbmps/menu.htm). This document provides guidance to regulated MS4s 
as to the types of practices they could use to develop and implement 
their stormwater management programs. The menu includes descriptions of 
practices that local programs can implement to reduce impacts of 
stormwater discharges from construction activities.
     Measurable Goals Guidance for Phase II MS4s (https://
www.epa.gov/npdes/stormwater/measurablegoals). This document assists 
small MS4s in defining performance targets and

[[Page 72567]]

includes examples of goals for practices to control stormwater 
discharges from construction activities.
     Storm Water Phase II Compliance Assistance Guide (EPA 833-
R-00-002, March 2000, https://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 stormwater discharges affected by the Phase II rule.
     Fact Sheets on various stormwater 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), swales (EPA 832-F-99-006) and wet 
detention ponds (EPA 832-F-99-048). (Available at https://www.epa.gov/
npdes/stormwater/; click on ``Publications.'')

C. Other State and Local Stormwater Requirements

    States and municipalities may have other requirements for flood 
control, erosion and sediment control, and in many cases, stormwater 
management. Many of these provisions were enacted before the 
promulgation of the EPA Phase I stormwater rule although many have been 
updated since. An EPA analysis found that all states have laws for 
erosion and sediment control measures, with these laws implemented by 
state, county, or local governments. A summary of existing state 
requirements is provided in the Development Document.

D. Technology-Based Effluent Limitations Guidelines and Standards

    Effluent limitation guidelines and new source performance standards 
are technology-based effluent limitations required by CWA sections 301 
and 306 for categories or subcategories of point source dischargers. 
These limitations, which can be either numeric or non-numeric, along 
with water quality-based effluent limitations, if necessary, are 
incorporated into NPDES permits. ELGs and NSPS are based on the degree 
of control that can be achieved using various levels of pollutant 
control technology, as defined in Title III of the CWA and outlined 
below.
1. Best Practicable Control Technology Currently Available (BPT)
    In establishing effluent guidelines for a point source category, 
the CWA requires EPA to specify BPT effluent limits for conventional, 
toxic, and nonconventional pollutants. In doing so, EPA is required to 
determine what level of control is technologically available and 
economically practicable. CWA section 301(b)(1)(A). In specifying BPT, 
the CWA requires EPA to look at a number of factors. EPA 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 Administrator 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 
practicably applied. See e.g., American Frozen Foods Inst. v. Train, 
539 F.2d 107, 117 (D.C. Cir. 1976).
    EPA assesses cost-reasonableness of BPT limitations by considering 
the 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.'' Moreover, the inquiry does not require the Agency to 
quantify benefits in monetary terms. See, e.g., American Iron and Steel 
Institute v. EPA, 526 F. 2d 1027, 1051 (3rd Cir. 1975).
    In balancing costs against the effluent reduction, EPA considers 
the volume and nature of expected discharges after application of BPT, 
the general environmental effects of pollutants, and the cost and 
economic impacts of the required level of pollution control. In past 
effluent limitation guidelines, BPT cost-reasonableness comparisons 
ranged from $0.26 to $41.44 per pound removed in year 2008 dollars. 
This range is not inclusive of all categories regulated by BPT, but 
nonetheless represents a very broad range of cost-reasonableness 
values. About half of the cost-reasonableness values represented by 
this range are less than $2.50 per pound (in 2001 dollars). In 
developing guidelines, the Act does not require consideration of water 
quality problems attributable to particular point sources, nor does it 
require consideration of water quality improvements in particular 
bodies of water. See American Frozen Foods Inst. v. Train, 539 F.2d 
107, 117 (D.C. Cir. 1976); Weyerhaeuser Company v. Costle, 590 F. 2d 
1011, 1036, 1041-44 (D.C. Cir. 1978).
2. Best Available Technology Economically Achievable (BAT)
    BAT effluent guidelines are applicable to toxic (priority) and 
nonconventional pollutants. EPA has identified 65 pollutants and 
classes of pollutants as toxic pollutants, of which 126 specific 
substances have been designated priority toxic pollutants. 40 CFR 
401.15 and 40 CFR part 423, Appendix A. In general, BAT represents the 
best available performance of direct discharging facilities in the 
subcategory or category. CWA section 304(b)(2)(A). 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. CWA section 304(b)(2). The Agency retains considerable 
discretion in assigning the weight to be accorded to these factors. 
Natural Resources Defense Council v. EPA, 863 F.2d 1420, 1426 (9th Cir. 
1988). An additional statutory factor considered in setting BAT is 
``economic achievability.'' EPA may determine the economic 
achievability of an option 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. See Texas Oil & Gas Ass'n v. EPA, 161 F.3d 923, 928 (5th 
Cir. 1998) (citing ``process changes'' as one factor EPA must consider 
in determining BAT); see also, American Meat Institute v. EPA, 526 F.2d 
442, 464 (7th Cir. 1975). As with BPT, where existing performance is 
uniformly inadequate, EPA may base BAT upon technology transferred from 
a different subcategory or from another category. See CPC International 
Inc. v. Train, 515 F.2d 1032, 1048 (8th Cir. 1975) (established 
criteria EPA must consider in determining whether technology from one 
industry can be applied to another); see also, Tanners' Council of 
America, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976). In addition,

[[Page 72568]]

the Agency may base BAT upon manufacturing process changes or internal 
controls, even when these technologies are not common industry 
practice. See American Frozen Foods Inst. v. Train, 539 F.2d 107, 132 
(D.C. Cir. 1976).
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 CWA section 304(b)(4)(B), the Act 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. 40 CFR 401.16. The Administrator 
designated oil and grease as an additional conventional pollutant on 
July 30, 1979 (44 FR 44501).
4. New Source Performance Standards (NSPS)
    NSPS reflect effluent reductions that are achievable based on the 
best available demonstrated control technology. New sources, as defined 
in CWA section 306, 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, 
nonconventional, 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 standards 
are known as Pretreatment Standards for Existing Sources (PSES) and 
Pretreatment Standards for New Sources (PSNS), and are promulgated 
under CWA section 307(b). EPA has no data indicating that construction 
sites typically discharge directly to POTWs. Therefore, EPA is not 
proposing PSES or PSNS for the C&D category. EPA determined that the 
majority of construction sites discharge either directly to waters of 
the U.S. or through MS4s. In some urban areas, construction sites may 
discharge to combined sewer systems (i.e., sewers carrying both 
stormwater and domestic sewage through a single pipe) which lead to 
POTWs. Sediment and turbidity, which are the primary pollutants 
associated with construction site discharges, are susceptible to 
treatment in POTWs, using technologies commonly employed such as 
primary clarification. EPA has no evidence that construction site 
discharges to POTWs would cause interference, pollutant pass-through or 
sludge contamination.
6. EPA Authority to Promulgate Non-Numeric Effluent Limitations
    The regulatory options proposed today include non-numeric effluent 
limitations that will control the discharge of pollutants from C&D 
sites. It is well established that EPA has the authority to promulgate 
non-numeric effluent limitations in addition to or in lieu of numeric 
limits. The CWA does not mandate the use of numeric limitations only 
and EPA's position finds support in the language of the CWA. The 
definition of ``effluent limitation'' means ``any restriction * * * on 
quantities, rates, and concentrations of chemical, physical, 
biological, and other constituents * * *'' CWA section 502(11).
    Federal courts have recognized the CWA does not mandate that EPA 
use numeric effluent limitations. In Citizens Coal Council v. U.S. EPA, 
447 F3d 879, 895-96 (6th Cir. 2006), the Sixth Circuit, in upholding 
EPA's use of non-numeric effluent limitations, agreed with EPA that it 
derives authority under CWA sections 402(a), 304(b) and 502(11) to 
incorporate non-numeric effluent limitations for conventional and non-
conventional pollutants. The Sixth Circuit further held as reasonable 
the Agency position that CWA sections 304(b), 304(e) and 502(11), read 
together, allow non-numeric effluent limitations to supplement CWA 
section 304(b), or can stand as effluent limitations themselves. See 
also, Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 496-97, 502 
(2d Cir. 2005) (EPA use of non-numerical effluent limitations in the 
form of best management practices are effluent limitations under the 
CWA); Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. 
Cir. 1982) (``section 502(11) [of the CWA] defines 'effluent 
limitation' as 'any restriction' on the amounts of pollutants 
discharged, not just a numerical restriction.''); Natural Res. Def. 
Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (in determining 
EPA did not have the authority to exclude a particular point source 
from the NPDES program, the Court held ``when numerical effluent 
limitations are infeasible, EPA may issue permits with conditions 
designed to reduce the level of effluent discharges to acceptable 
levels. This may well mean opting for a gross reduction in pollutant 
discharge rather than fine-tuning suggested by numerical 
limitations.'')
    EPA's NPDES regulations reflect EPA's long standing interpretation, 
as supported by federal court decisions, that the CWA allows for non-
numeric effluent limitations. 40 CFR 122.44(k).
7. 2002 Construction and Development Proposal and Subsequent Litigation
    EPA identified the C&D industry in its CWA section 304(m) plan in 
2000 as an industrial point source category for which EPA intended to 
conduct rulemaking. 65 FR at 53,008 and 53,011 (August 31, 2000). On 
June 24, 2002, EPA published a proposed rule that contained several 
options for the control of stormwater discharges from construction 
sites, including ELGs and NSPS. (67 FR 42644; June 24, 2002).
    On April 26, 2004, EPA determined that national effluent 
limitations guidelines would not be the most effective way to control 
discharges from construction sites, and instead chose to rely on the 
range of existing programs, regulations, and initiatives that already 
existed at the federal, state and local level. (69 FR 22472; April 26, 
2004).
    On October 6, 2004, the Natural Resources Defense Council, Inc. and 
additional plaintiffs filed a complaint in district court alleging that 
EPA's decision not to promulgate ELGs and NSPSs for the C&D industry 
violated a mandatory duty under the CWA. The district court, in NRDC v. 
EPA, 437 F.Supp.2d 1137, 1139 (C.D. Cal. 2006), held that CWA section 
304(m) imposes on EPA a mandatory duty to promulgate ELGs and NSPSs for 
new industrial point source categories named in a CWA section 304(m) 
plan. The district court enjoined EPA to propose ELGs and NSPSs for the 
C&D industry by December 1, 2008 and to promulgate ELGs and NSPSs as 
soon as practicable, but in no event later than December 1, 2009. On 
appeal, the Ninth Circuit in NRDC v. EPA, 2008 WL 4253944 (9th Cir. 
2008) affirmed the district court's

[[Page 72569]]

decision holding that ``* * * the CWA is unambiguous that the EPA must 
promulgate ELGs and NSPSs for the point-source categories listed in a 
plan pursuant to [section] 304(m) * * *'' The deadline to seek re-
hearing in the Ninth Circuit was November 3, 2008. The Agency requested 
a 30-day extension of the re-hearing deadline, which was granted, thus 
the new deadline for EPA to seek re-hearing is December 3, 2008.

IV. Scope of the Proposal

    EPA is proposing a regulation that would strengthen the existing 
controls on discharges from construction activity by establishing 
technology-based effluent limitations guidelines and new source 
performance standards for the C&D point source category. This proposal, 
if implemented, would significantly reduce the amount of sediment, TSS, 
turbidity and other pollutants discharged from construction sites due 
to construction activities. EPA estimates that today's proposed rule 
would cost $1.9 billion dollars per year. These estimates do not 
include costs for Alaska, Hawaii and the U.S. territories because EPA 
lacked data on the amount of construction occurring in these areas. 
However, EPA does expect that some construction sites in these areas 
would incur compliance costs as a result of today's proposal. EPA 
solicits data that can be used to estimate the number of acres of 
construction activity that occurs annually in these areas.
    The proposed rule would establish a set of non-numeric effluent 
limitations requiring dischargers to provide and maintain effective 
erosion control measures, sediment control measures, and other 
pollution prevention measures to minimize and control the discharge of 
pollutants in stormwater and other wastewater from construction sites. 
The rule would specify particular minimum BMPs to meet the effluent 
limitations requiring effective erosion control and pollution 
prevention.
    In addition, reflecting current requirements in the EPA CGP, sites 
disturbing 10 or more acres at one time would be required to install a 
sediment basin to contain and settle sediment from stormwater runoff. 
The proposed rule would require minimum standards of design for 
sediment basins; however, alternatives that control sediment discharges 
in a manner equivalent to sediment basins would be authorized where 
approved by the permitting authority.
    Finally, reflecting the BAT and NSPS levels of control, for certain 
large sites located in areas of high rainfall energy and with soils 
with significant clay content, discharges of stormwater from the site 
would be required to meet a numeric effluent limit on the allowable 
level of turbidity. The numeric turbidity limit is 13 nephelometric 
turbidity units (NTUs). The turbidity limit is intended to remove fine-
grained and slowly settling or non-settleable particles contained in 
stormwater. Particles such as clays and fine silts contained in 
stormwater discharges from C&D sites typically cannot be effectively 
removed by conventional stormwater BMPs (such as sediment basins and 
sediment traps) that rely solely on settling unless sufficient 
detention time or additives are implemented. The technology basis for 
the turbidity limit is active treatment systems (ATS), which consists 
of polymer-assisted clarification followed by filtration.
    In addition to this proposed option, EPA is specifically soliciting 
comment on setting a turbidity limit in the range of 50 to 150 NTUs (or 
some other number) based on passive treatment, instead of ATS. See 
section IX.A.5.a of today's proposal for additional discussion of this 
alternative approach.
    EPA considered several other regulatory approaches while developing 
this proposed rule, such as specifying certain design criteria for 
sediment basins, or using different site size, rainfall, or soil type 
thresholds for determining which sites would be required to comply with 
a turbidity limit. EPA also considered setting BAT and NSPS equal to 
the proposed BPT level of control, based on non-numeric BMP-based 
effluent limitations, as well as an expanded version of today's 
proposed rule. EPA requests comment on these alternative regulatory 
approaches. Details of the proposed rule and alternative approaches 
considered are described in this notice, the Development Document, 
Economic Analysis, and Environmental Assessment (see the Supporting 
Documentation section of this notice) and additional documentation is 
contained in the record.

V. Overview of the Construction and Development Industry and 
Construction Activities

    The C&D point source category covers firms classified by the Census 
Bureau into two North American Industry Classification System (NAICS) 
codes.
     Construction of Buildings (NAICS 236) includes 
residential, nonresidential, industrial, commercial and institutional 
building construction.
     Heavy and Civil Engineering Construction (NAICS 237) 
includes utility systems construction (water and sewer lines, oil and 
gas pipelines, power and communication lines); land subdivision; 
highway, street, and bridge construction; and other heavy and civil 
engineering construction.

Other types of entities not included in this list could also be 
regulated.
    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. In 
typical construction projects, the firms identifying themselves as 
``operators'' under a construction general permit are usually general 
building contractors or developers. While the projects often engage the 
services of specialty contractors such as excavation companies, these 
specialty firms are typically subcontractors to the general building 
contractor and are not separately identified as operators in stormwater 
permits. Other classes of subcontractors such as carpentry, painting, 
plumbing and electrical services typically do not apply for, nor 
receive, NPDES permits. The types and numbers of firms in the 
construction industry are described in more detail in the Development 
Document and the Economic Analysis.
    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 may be hauled away. Clearing 
activities involve the movement of materials from one area of the site 
to another or complete removal from the site. When grading a site, 
builders typically take measures to ensure that new grades are as close 
to the original grade as possible to reduce erosion and stormwater 
runoff. Proper grade also ensures a flat surface for development and is 
designed to attain proper drainage away from the constructed buildings. 
A wide variety of equipment is often used during excavation and 
grading. 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

[[Page 72570]]

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, 
and compaction is often accomplished with various types of rollers. If 
rock is to be removed from the site, the contractor must first loosen 
and break the rock into small pieces using various types of drilling 
equipment or explosives. (Adapted from Peurifoy, Robert L. and 
Oberlender, Garold D. (1989). Estimating Construction Costs (4th ed.). 
New York: McGraw Hill Book Company.)
    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. During construction 
activity, the disturbed land can remain exposed without vegetative 
cover for a substantial period of time. Where the soil surface is 
unprotected, soil particles and other pollutants are particularly 
susceptible to erosion and may be easily washed away by rain or snow 
melt and discharged from the site. Permittees typically use a 
combination of erosion and sediment control measures designed to 
prevent mobilization of the soil particles and capture of those 
particles that do mobilize and become entrained in stormwater from the 
C&D site. In most cases these control measures take the form of BMPs, 
but in some cases construction sites actively treat a portion of the 
discharge using filtration or other treatment technologies. Erosion and 
sediment control measures are described further in the Development 
Document.

VI. Summary of Data Collection Activities

    In developing today's proposal, EPA gathered and evaluated 
technical and economic data from various sources. EPA also used data 
collected previously to develop the 2002 proposed C&D rule and the 2004 
withdrawal of the proposed rule.
    EPA used these data to estimate costs, pollutant loading 
reductions, environmental benefits and economic impacts of various 
regulatory options. This section summarizes EPA's data collection 
efforts.

A. State Data

    EPA compiled and evaluated existing state program information about 
the control of construction site stormwater. EPA collected data by 
reviewing state construction general permits, Web sites, summary 
references, state regulations, and erosion and sediment control design 
and guidance manuals. A summary of criteria and standards for 
construction site stormwater erosion and sediment control that are 
implemented by states are presented in Appendix A of the Development 
Document for this proposed rulemaking. EPA did not collect information 
from counties or municipalities regarding current construction site 
stormwater requirements. EPA relied on state-level requirements to 
characterize requirements in all areas of the state. So, if county or 
municipal requirements are more stringent than state-level requirements 
for control of construction site stormwater discharges, EPA's baseline 
estimates of costs and pollutant reductions would not reflect these 
more stringent requirements currently in place. Therefore, certain 
components of EPA's cost and loadings estimates for the regulatory 
options may be overestimates. In addition, EPA did not account for 
those sites that would already be required to meet a turbidity limit. 
For example, some construction sites around the country are already 
required to meet numeric effluent limits for turbidity that are 
comparable to EPA's proposed turbidity limit. EPA has not accounted for 
these sites in its analysis of costs and loading reductions, although 
the number of these sites is likely to be only a small fraction of 
construction sites nationwide.

B. National Land Cover Dataset (NLCD)

    The NLCD provides a national source of data on land cover. EPA used 
these data to estimate the amount of land across the U.S. that was 
converted to development (e.g., from forest or farmland to residential 
communities), which in turn was used to estimate the amount of acreage 
that may be subject to the requirements of the C&D rule.
    The Multi-Resolution Land Characteristics Consortium (MRLC) has 
produced the NLCD datasets that created a 30-meter resolution land 
cover data layer over the conterminous United States using remote 
sensing data. There are approximately 24 billion data points from 
remote sensing data that comprise the NLCD database. NLCD data is 
publicly available for the years 1992 and 2001.
    Due to new developments in mapping methodology, new sources of 
input data, and changes in the mapping legend for th