The Administrator signed the following notice on November 23, 2009, and EPA is submitting it for publication in the Federal Register. While we have taken steps to ensure the accuracy of this pre-publication version, it is not the official version. Please refer to the official version in a forthcoming Federal Register publication, or on GPO’s website at http://www.gpoaccess.gov/fr/index.html, or on EPA’s website at http://www.epa.gov/guide/construction. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 450 [EPA-HQ-OW-2008-0465; FRL-xxx] RIN 2040-AE91 Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency is publishing final regulations establishing Clean Water Act (CWA) technology-based Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development (C&D) point source category. EPA expects compliance with this regulation to reduce the amount of sediment and other pollutants discharged from construction and development sites by approximately 4 billion pounds per year. 1 DATES: This final rule is effective on [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 60 days after publication in the Federal Register. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OW- 2008-0465. All documents in the docket are listed on the www.regulations.gov web site. 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Office of Water Docket, EPA/DC, EPA West, Room 3334, 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 Office of Water Docket is (202) 566-1752 FOR FURTHER INFORMATION CONTACT: For technical information concerning today's rule, contact Mr. Jesse W. Pritts at 202-566-1038 ([email protected]). For economic information contact Mr. Todd Doley at 202-566-1160 ([email protected]). For information regarding environmental benefits, contact Ms. Ashley Allen at 202-566-1012 ([email protected]). 2 SUPPLEMENTARY INFORMATION: Regulated Entities Entities potentially regulated by this action include: Category Examples of Regulated Entities North American Industry Classification System (NAICS) Code Industry Construction activities required to obtain NPDES permit coverage and performing the following activities: Construction of buildings, including 236 building, developing and general contracting Heavy and civil engineering 237 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 § 450.10 of today's final rule and the definition of "storm water discharges associated with industrial activity" and "storm water discharges associated with small construction activity" in existing EPA regulations at 40 CFR 3 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions regarding the applicability of this action to a particular site, consult one of the persons listed for technical information in the preceding "FOR FURTHER INFORMATION CONTACT" section. Supporting Documentation Several key documents support the final regulation: 1. "Development Document for Final Effluent Guidelines and Standards for the Construction and Development Category," EPA-821-R-09-010. ("Development Document") This document presents EPA's methodology and technical conclusions concerning the C&D category. 2. "Economic Analysis for Final Effluent Guidelines and Standards for the Construction and Development Category," EPA-821-R-09-011. ("Economic Analysis") This document presents the methodology employed to assess economic impacts of the rule and the results of the analysis. 3. "Environmental Impact and Benefits Assessment for Final Effluent Guidelines and Standards for the Construction and Development Category," EPA-821-R-09-012 ("Environmental Assessment"). This document presents the methodology to assess environmental impacts and benefits of the rule and the results of the analysis. You can obtain electronic copies of this preamble and final rule as well as the technical and economic support documents for today's rule at EPA's website for the C&D rule, http://www.epa.gov/waterscience/guide/construction. 4 5 Overview This preamble describes the terms, acronyms, and abbreviations used in this document; the background documents that support these final regulations; the legal authority of this final rule; a summary of the final rule; background information; and the technical and economic methodologies used by the Agency to develop this final regulation. Table of Contents I. Legal Authority II. Purpose & Summary of the Final Rule III. Background on Existing Regulatory Program A. Clean Water Act B. Clean Water Act Stormwater Program 1. NPDES Permits for Stormwater Discharges Associated With Construction Activity a. General NPDES Permits b. EPA Construction General Permit c. State Construction General Permits d. Individual NPDES Permits 2. Municipal Stormwater Permits and Local Government Regulation of Stormwater Discharges Associated With Construction Activity a. NPDES Requirements b. EPA Guidance to Municipalities 6 C. Other State and Local Stormwater Requirements D. Technology-Based Effluent Limitations Guidelines and Standards 1. Best Practicable Control Technology Currently Available (BPT) 2. Best Available Technology Economically Achievable (BAT) 3. Best Conventional Pollutant Control Technology (BCT) 4. Best Available Demonstrated Control Technology (BADT) for New Source Performance Standards (NSPS) 5. Pretreatment Standards 6. EPA Authority to Promulgate Non-Numeric Effluent Limitations 7. CWA Section 304(m) Litigation IV. Overview of the Construction Industry and Construction Activities V. Summary of the Proposed Regulation VI. Summary of Major Comments Received VII. Summary of Significant Decisions and Revisions to Analyses A. Regulatory Options B. Cost Analysis C. Pollutant Load Analysis D. Economic Analysis E. Benefits Estimation and Monetization VIII. Characteristics of Discharges Associated With Construction Activity IX. Description of Available Technologies A. Introduction 7 B. Erosion Control Measures C. Sediment Control Measures D. Other Construction and Development Site Management Practices E. Performance Data for Passive Treatment Approaches X. Development of Effluent Limitations Guidelines and Standards and Options Selection Rationale A. Description of the Regulatory Options Considered 1. Options Considered in the Proposal 2. Regulatory Options Considered for the Final Rule and Rationale for Consideration of Revisions to Options in the Proposed Rule B. Non-Numeric Effluent Limitations Included in All Regulatory Options 1. Non-Numeric Effluent Limitations Contained in the Final Rule 2. Changes to the Non-Numeric Effluent Limitations Since Proposal C. Numeric Effluent Limitations and Standards Considered D. Selected Options for BPT, BCT, BAT and BADT for NSPS E. Selection Rationale for BPT F. Selection Rationale for BCT G. Selection Rationale for BAT and BADT for NSPS 1. Selection Rationale 2. Numeric Limitations 3. Rationale for Rejecting Options 1, 2 and 3 as the Technology-Bases for BAT and BADT for NSPS 8 4. Definition of “New Source” for the C&D Point Source Category XI. Methodology for Estimating Costs to the Construction and Development Industry 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 a. Assigning Projects and Costs to Model Firms b. Project-Level Cost Multiplier c. Cost Pass-through 3. Housing Market Impacts 4. Impacts on the National Economy D. Results 1. Project-Level Impacts 2. Firm-Level Impacts 3. Impacts on Governments 4. Community-Level Impacts 5. Foreign Trade Impacts 6. Impacts on New Firms 7. Social Costs 8. Small Business Impacts 9 XIII. Cost-Effectiveness Analysis XIV. Non-Water Quality Environmental Impacts A. Air Pollution B. Solid Waste Generation C. Energy Usage XV. Environmental Assessment A. Surface Water Impacts from Discharges Associated With Construction Activity B. Quantification of Sediment Discharges Associated with Construction Activity C. Quantification of Surface Water Quality Improvement from Reducing Discharges Associated With Construction and Development Activity XVI. Benefit Analysis A. Benefits Categories Estimated B. Quantification of Benefits XVII. Benefit-Cost Comparison XVIII. Approach to Determining Effluent Limitations and Standards A. Definitions B. Percentile Basis for Limitations, not Compliance XIX. Regulatory Implementation A. Monitoring Requirements B. Implementation C. Upset and Bypass Provisions D. Variances and Waivers 10