Affluent on the Effluent?

Feb. 19, 2010

Under current federal law, project owners and their contractors are responsible for employing best management practices to address erosion and sedimentation control on the jobsite.

Under current federal law, project owners and their contractors are responsible for employing best management practices to address erosion and sedimentation control on the jobsite.

Soon, BMPs will not suffice and, for the first time, the effectiveness of a contractor’s sedimentation- and erosion-control efforts will be subjected to regular monitoring and testing. Site operators will be found in violation of the Clean Water Act if—despite their efforts—the turbidity of discharges from the jobsite exceeds 280 Nephelometric Turbidity Units (NTUs). The new regulation, which took effect Feb. 2, will have a profound impact on how contractors conduct their clearing, grading and heavy civil operations.

The Environmental Protection Agency (EPA) openly admitted that it lacked sufficient information to promulgate regulations that set effluent limits and mandate regular monitoring of effluent leaving construction sites, but a federal district court in California nevertheless ordered it to do so and the U.S. Court of Appeals for the Federal Circuit affirmed the decision in 2008. The EPA issued the Final Rule on Dec. 1, 2009—the deadline established by the courts. The rule is referred to as Effluent Limitations, Guidelines and Standards for the Construction and Development Point Source Category (ELGS).

Hard and fast

The “best management practices” requirement in the current law is elevated substantially and site operators must now employ “the best practicable technology currently available.” In addition, an effort must be made to “minimize the soil exposed during construction activity.” This latter requirement is admirable, but no guidance is given on factors that should be considered in determining what constitutes “minimal.”

The ELGS also contains a hard and fast rule requiring stabilization of any portion of a site on which land-disturbing activities have temporarily ceased for a period exceeding 14 days. The impact of these requirements upon highway contractors was made known to the EPA during the comment period, but it declined to exempt or otherwise provide exceptions for linear projects.

The runoff monitoring and testing requirement and the average daily turbidity allowance come into play only on projects where land totaling 10 acres or more will be disturbed at any one point in time, and are being phased in over four years. They will affect projects involving 20 or more acres of disturbed land beginning Aug. 2, 2011. The threshold will be lowered to 10 acres on Feb. 2, 2014.

The comments accompanying the ELGS stress that site operators may avoid the effluent monitoring and turbidity limits on large projects by phasing their work in a manner that maintains disturbed land totals below the specified amount. The comments also contemplate that monitoring and turbidity limit requirements will lift and be re-imposed on a project as the total area denuded at any point in time falls below and rises above the 20/10-acre threshold.

The ELGS provides little guidance to state agencies on how to structure monitoring requirements, except that: (1) Testing should be performed whenever runoff is occurring; (2) there should be multiple testing of each source of runoff with all results averaged for a given day—EPA recommends at least three tests each day per runoff source; and (3) state agency testing and contractor testing should be averaged together with neither entity’s testing excluded.

Space limitations prevent a comprehensive summary of the new rule in this article. Suffice it to say, however, it is not business as usual walking the silt fence line with this new ruling. Contractors must intimately familiarize themselves with the ELGS and should consult with responsible agencies in the states in which they operate concerning how ELGS will be implemented. Only then can the potential impacts to productivity and the true costs of complying with the ELGS be fully understood.

About The Author: Caudle is a principal in Kraftson Caudle LLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Caudle can be contacted via e-mail at [email protected].

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