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February 26, 2009 BROOKS M. SMITH

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EMAIL: bsmith@hunton.com

FILE NO: 29142.070315

SUBMITTED VIA REGULATIONS.GOV

US EPA Docket Center Environmental Protection Agency Docket No. EPA-HQ-OW-2008-0465

Mailcode 2822T 1200 Pennsylvania Ave., N.W. Washington, DC 20460

Comments of Utility Water Act Group on Effluent

Limitations Guidelines and St andards for the Construction

and Development Point Source Category; Proposed Rule 73 Fed. Reg. 72,562 (November 28, 2008)

Dear Sir:

Attached are the comments of the Utility Water Act Group on the proposed effluent limitations guidelines and standards for the construction and development point source

category.

Please call me if you have any questions.

Sincerely,

Brooks M. Smith

Attachment

ATLANTA BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS KNOXVILLE

LONDON McLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SINGAPORE WASHINGTON

www.hunton.com 29142.070315 EMF_US 26858617v1COMMENTS ON EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS

FOR THE CONSTRUCTION AND DEVELOPMENT

POINT SOURCE CATEGORY; PROPOSED RULE 73 FED. REG. 72562 (NOVEMBER 28, 2008)

February 26, 2009

Hunton & Williams • LLP Counsel to UWAG • 1900 K Street, N.W. • Wa shington, D.C. 20006- 1 - The Utility Water Act Group (“UWAG”) 1 welcomes this opportunity to comment on EPA’s proposed effluent limitations guidelines and standards for th e construction and development point source category, as set forth in 73 Fed. Reg. 72562 (November 28, 2008) (“C&D Proposal”). In the C&D Proposal, EPA claims to have considered the following three options:

• Option 1 : All regulated sites woul d be required to implement a prescribed set of best management practices (“BMPs”) for sediment and erosion control, as well as pollution prevention. In addition, sites that disturb at least 10 acres of land draining to a single discharge point would be required to install a sediment basin of sufficient size to meet EPA’s design criteria.

• Option 2 : All regulated sites would be subject to Option 1. In addition, sites equal to or greater than 30 acres in size with defined soil clay content and rainfall erosivity would be subject to a numeric turbidity limitation of 13 NTU.

• Option 3 : All regulated si tes would be subject to Option 1. In addition, sites with at

least 10 disturbed acres would be subject to a numeric turb idity limitation of 13 NTU.

EPA proposes to select Option 2 for this rulemaking. For th e reasons that follow, UWAG strongly opposes Options 2 and 3. UWAG would be willing to support Option 1, but only (a) for non-linear projects, and (b) if EPA makes the BMPs less prescriptive. Based on the administrative record for this rulemaking, UWAG does not believe that EPA has substantiated Options 2 or 3, or more generall y, application of the C&D Proposal to linear utility projects.

Please note that UWAG is a member of th e Federal Water Quality Coalition, which has submitted separate comments on the C&D Pro posal. UWAG endorses those comments and incorporates them by reference here.

1. UWAG strongly opposes the numeric turb idity limitation that EPA proposes to include in both Options 2 and 3.

EPA’s proposed numeric turbidit y limitation of 13 NTU is based solely on information provided by private vendors who manufacture and distribute Advanced Treatment Systems (“ATS”), and who, in turn, have an inherent bias toward th e use of ATS. For th e following reasons, this information is inadequate to support EPA’s proposal.

First, EPA only used data from 19 ATS at 17 s ites in 3 western states (California, Oregon and Washington). See 73 Fed. Reg. at p. 72602, col. 2. This is hardly representative of conditions or

1 UWAG is a voluntary, ad hoc , non-profit, unincorporated group of 215 energy company systems, which own and operate over fifty percent of the nation’s total generating capacity. The Edison Electric Institute, the American Public Power Association, and the National Rural Electric Cooperative A ssociation also are UWAG

members.- 2 - performance in different regions ar ound the country. Nor is it repr esentative of t hose portions of the United States specifically encompassed by Option 2, as identified in Exhibit A. Unless and until EPA gathers more representative data and makes those data available for public review, EPA may not lawfully proceed to finalize the rule.

Second, out of the very limited set of ATS that EPA evaluated, at least one system (Clean Creek Systems, Inc.) consistently exceeded EPA’s proposed limitation. This is particularly problematic because the system used chitosan, which is considered to be one of the best treatment technologies currently available. The fact that th is system could not meet the

limitation raises serious concerns about EPA’s expectations of perf ormance, especially since this one system accounts for over 5% of EPA’s dataset.

Third, the information provided by vendors omits key details that are necessary to assess whether they are reliable and representa tive of performance at the many different types of sites to be regulated under the C&D Proposal. EPA’s record of vendor info rmation is set forth at DCN 43000 through 43011, as well as 43081. This record encompasses approximately 50 separate entries. Of these, 12 entries omit raw data based on claims of copyright protection, and another 35 rely exclusively on narrative questions and answ ers, as opposed to ac tual performance data independently collected and/or vali dated by EPA. In short, only a handful of the entries include actual data, and of those, the da tasets are extremely limited ( e.g. , DCN 43002-274.1, 2003-2004 turbidity dataset). Moreover, only a small percentage of th e entries identify the physical conditions that underlie the data ( e.g. , weather conditions, soil type, geography, time of year, background turbidity levels).

Providing public access to information relevant to a rulemaking proceeding is a “minimum requirement” of the federal Administrative Procedure Act, as well as EPA’s public participation regulations. See

, e.g. , Connecticut Light & Power Co. v. NRC , 673 F.2d 525, 530-31 (D.C. Cir. 1982) (“In order to allow for useful criticism, it is especially impor tant for the agency to identify

and make available technical studies and data th at it has employed in reaching the decisions to propose particular rules. To allow an agency to play hunt th e peanut with technical information, hiding or disguising the informati on that it employs, is to condone a practice in which the agency treats what should be a genuine interchange as mere bureaucratic sport. An agency commits serious procedural error when it fa ils to reveal portions of the t echnical basis for a proposed rule in time to allow for meaningful commentary.”); Riverkeeper, Inc. et al. v. United States , 475 F.3d 83 (2 nd Cir. 2007); 40 CFR § 25.4(b)(1) (“Providing information to the public is a necessary prerequisite to meaningful, active public invo lvement” in EPA rulemaking under the Clean Water Act). Without access to a ll of the information reviewed by EPA, interested stakeholders like UWAG are deprived of the opportunity to independently verify EPA’s calculations and to comment on the accuracy, reasonableness and appr opriateness of the long- term averages and variability factors that EPA used as the basis for the C&D Proposal. We caution EPA that such deprivation would result in final agency action that is arbitrary and capricious.

Fourth, EPA entirely excluded from its analysis any and all information that might have been gleaned from actual site operators. Soliciting such information from the parties to be regulated is a fundamental element of fair notice, and has been EPA’s unwavering pr actice in nearly every- 3 - other effluent guideline proceeding. We fail to understand why EPA deviated from this practice

here.

Fifth, it appears that EPA significantly overestimated sediment runoff from construction sites by

a factor of 50 to 100 or more. This overestimation error is base d, in part, on EPA’ s utter failure to credit the existing stormwater regulatory progra ms (Phase I and II rules, as well as general permits for construction, industry and municipa l separate storm sewer systems) with any environmental benefits ( i.e. , no removal of sediment). This e rror is fatal to EPA’s assessment of the environmental benefits of the C&D Proposal and, in turn, the costs relative to those benefits.

Sixth, the achievability of the proposed 13 NTU limit is inhere ntly dependent on the quality of the influent, which in turn is dependent on the specific site characteristics. However, EPA has not provided any such influent data for review. Moreover, the environmental benefits from the imposition of such a limit are inherently depend ent on actual in-stream conditions. Based on information and belief, background in-stream c onditions around the country are, or have the potential to be, significantly higher than 13 NTU. However, EPA did not assess these conditions in the C&D Proposal.

Seventh, while the proposed 13 NTU limit is predicated on ATS, EPA failed to fully assess the potential adverse environmental impacts associat ed with widespread use and occasional failure of such systems, particularly in sensitive aquatic environments. EPA also failed to fully assess the very practical safety and logistical problems associated with transporting ATS to their point of use (particularly in remote or steep natura l terrain) and staffing AT S during severe weather

conditions. Had EPA conducted su ch assessments, we believe th at EPA would have concluded that passive treatment options ar e more appropriate, and less pot entially damaging, than active

ones.

We urge EPA to explore other, more environmentally-friendly passive treatment options. We appreciate that EPA must balance many co mpeting environmental demands, both multi-media

and cross-media. We submit that this is best done here with technology approaches that do not unnecessarily increase solid waste generation, ener gy consumption or the risk of incidents ( e.g. , spills of treatment chemicals) that are greater than those being controlled ( e.g. , sediment runoff from construction sites).

Eighth, under Options 2 and 3, EPA has proposed certain acreage triggers (at least 30 total acres with defined soil clay content and rainfall erosiv ity for Option 2, and at least 10 disturbed acres for Option 3). What happens when a site meet s these acreage triggers, but includes individual discharge points that collect stormwater runoff from significantly smaller ( e.g. , <0.1 acre) areas within the project site? Would ATS be required for each discharge point? EPA failed to address these questions in the C&D Proposal. We resp ectfully submit that any acreage thresholds provided in the final rule specif ically apply (a) to disturbed, c ontiguous acreage that drains to a common point within the project site, (b) only during th e period of actual disturbance, and (c) only where it is feasible to construct and ope rate the measures required for compliance.

In lieu of a numeric turbidity limitation, we urge EPA to consider an “action level” or “benchmark” approach, as is already common in EPA’s general permits and many state- 4 - programs. Any such level or benchmark shoul d account for background wa ter quality conditions ( e.g. , upstream sediment loading). EPA should al so provide a “BMP defense” that protects permittees who properly design, install and mainta in their BMPs but none theless periodically

exceed the action level or benchmark. Such a defense exists under the Georgia program and would serve as a good mode l for these guidelines.

2. EPA has not provided the requi site legal, technical or economic justification to apply the C&D Proposal to li near utility projects.

The C&D Proposal makes no distinction for linear util ity projects. This is clearly in error.

The differences between conventional land developm ent projects and linear utility projects are compelling. Attempting to apply the new guidelin es without regard to these differences and without proper justification wi ll result in unacceptably high co sts to, and compliance challenges for, linear utility project ope rators without any correspondi ng environmental benefits.

As EPA has acknowledged, “[s]everal key docume nts support the proposed regulation.” These include documents defined by EPA as the Deve lopment Document, the Economic Analysis and

the Environmental Assessment. See 73 Fed. Reg. at 72563, col. 1. None of these key documents address linear utility projects. In fact, EPA makes very clear that it excluded such projects from its analysis. See

, e.g. , EPA’s Economic Analysis at p. 1-16:

EPA anticipates that some businesses and activities in the Heavy

Construction sector (NAICS 237) will be affected by the Construction rule. However, with th e exception of NAICS 237310 ( Highway, street, and bridge construction ), data are not available to support an assessment of the number and character of proj ects performed by NAICS 237 sector businesses that would be subject to compliance requirements and incur compliance costs. For this reason, of the sectors in NAICS 237, only NAICS 237310 ( Highway, street, and bridge construction ) is considered in the cost and impact analys is for the Construction rule.

Noticeably absent from EPA’s record or analysis is any consideration of linear utility activities, such as those that fall under NAICS 237120 ( Oil and gas pipeline and related structures

construction ) or 237130 ( Power and communication line and rela ted structures construction ). This omission undermines not only EPA’s Economic Analysis of the costs associated with the C&D Proposal, but also its Environmental Assessm ent of impacts and benefits, and its data collection and analysis in s upport of both non-numeric and nume ric effluent guidelines.

Simply put, linear utility projects are not the same as highway, street or bridge construction. Linear utility projects (a) typically occur on very narrow rights-of-way designed to minimize impacts to the environment and adjacent properti es, (b) may extend tens or hundreds of miles

over different natural terra ins and watersheds, (c) of ten are constructed in rolling segments, as in an assembly line, (d) tend to be short-lived, (e) rarely involve fill, as might be expected in highway or other conventional development activities, and (f) face obvious physical constraints against active treatment systems or st ructural BMPs like sediment ponds.- 5 - In addition, linear utility projects, particularly overhead electri c transmission lines, typically do not increase impervious surfaces or concentrate or re-direct stormwater . In fact, many such projects apply above-grade vegetation removal pr actices (rather than mo re traditional clearing and grubbing) such that the only actual disturbance occurs in th e immediate vicinity of the line support structure. In short, the impacts from linear utility pr ojects, if any, are minimal, temporary and best controlled, where appropriate, with BMPs that are peculiar to the narrow linear setting (as compared to highways, shopping centers or other planned commercial or residential development). 2

Several of the comments that follow apply uniquely to linear utility construction projects; others apply to both site development and linear construction.

3a. If EPA elects not to drop linear utility projects from the C&D Proposal, and instead proceeds to develop a justification for thei r inclusion (subject, of course, to further notice and comment safeguards), then EPA must revise the effluent guidelines to reflect issues, impacts and costs pe culiar to such projects.

As described in section 2, unle ss EPA properly assesses the impact s from linear utility projects and the technologies available to address those impacts, EPA l acks authority to include such projects in the C&D Proposal. 3 That said, if EPA elects to pr oceed with such an assessment, then at a minimum, EPA must revise and pr ovide additional public comment on the following guidelines. Of these, the most problematic is the requirement to install a sediment basin for sites

that disturb at least 10 acres of land draining to a single discharge point.

o Erosion controls - Control stormwater discharges, including both peak flowrate and total stormwater volume, leaving the site to prevent channel and streambank

erosion and erosion at outlets

. [40 CFR §450.21(a)(4)]

This control measure is not feasible for linea r utility projects, since control over flowrates presumes an ability to retain stormwater onsite. Linear utility projects typically are constructed within narrow easements or rights- of-way that make it extremely difficult to

construct and maintain retention structures.

o Erosion controls - Minimize soil compacti on by construction equipment in areas that will not contain permanent structures or where compaction is not necessary for

2 Many states further distinguish over head transmission projects from other lin ear utility projects, because overhead projects do not create new flow patterns, concentrate flow, add impervious su rface or otherwise materially affect water quality. In these situations, attempting to install se diment and erosion control measures may actually be more disruptive than the project itself. We urge EP A to adhere to this distinction, as well.

3 As a matter of basic administrative law, EPA must engage in “reasoned decisionmaking” and consider all relevant factors. Omitting from consideration an entire categor y of activity to be regulated is hardly “reasoned decisionmaking.” See 5 USC §706; Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402 (1973); Essex Chemical Corp. v. Ruckelshaus , 486 F.2d 427 (D.C. Cir. 1973), cert. denied Appalachian Power Company v. EPA

, 416 U.S. 969 (1974).- 6 - structural integrity. In disturbed areas th at will not contain structures or where compaction is not necessary for structur al integrity, utiliz e deep ripping and decompaction of soils and incorporate organic matter to restore infiltrative capacity. [40 CFR §450.21(a)(6)]

This control measure must exclude access road s, equipment pads and other similar areas on linear utility projects that, by design and due to their function, will be compacted. For projects that are covered by this requirement, EPA should recognize that organic matter and deep ripping may not be the only options for dealing with comp acted soil. Indeed, for projects that are already required to re -vegetate bare areas, a variety of measures beyond those mentioned in the C&D Proposal ar e already widely used to deal with compaction.

o Erosion controls - Provide and maintain natural buffers around surface waters. [40 CFR §450.21(a)(7)]

For linear utility projects, this control measur e must be qualified with “where feasible.” Typically, these projects are designed to follow the natural terrain, which may lead to runoff into valleys at the base of two slopes. In th ese scenarios, the ab ility to provide and maintain natural buffers is inherently limited and may prove to be infeasible. When

natural buffers cannot be ma intained, utilities should be authorized to implement alternative BMPs such as hand clearing and re-vegetation of dist urbed buffer areas.

o Erosion controls

- Sequence/phase construction activiti es to minimize the extent and duration of exposed soils. [40 CFR §450.21(a)(9)]

This control measure may not be feasible for all types of linear utility projects, particularly those involving ove rhead transmission lines. Many companies rely on contractors or employees who specialize in clearing rights-of-way. These specialists typically clear all of the affected area first, and then the next phase of construction will begin.

o Erosion controls - Divert stormwater that runs onto the site away from disturbed

areas of the site. [40 CFR §450.21(a)(13)]

This control measure may not be feasible for all types of linear utility projects, particularly in urban areas where work cr osses streets and gutters, as well as in undeveloped areas.

o Sediment control measures - Establish and maintain perimeter control measures for any portion of the down-slope and si de-slope perimeter where stormwater will be discharged from disturbed areas of the site. Perimeter controls include, but are not limited to, BMPs such as diversion di kes, storm drain inle t protection, filter berms, and silt fencing. Perimeter co ntrol measures along the down-slope perimeter of the site must be installed following the contours of the land. Discharge- 7 - stormwater from perimeter controls th rough vegetated areas and functioning

stream buffers. [40 CFR §450.21(b)(1)]

It is not reasonable to require a large ( i.e. , long) linear utility project to implement perimeter controls along mile s of linear construction. This would result in a hydrologic barrier across miles of landscape in natural ar eas, would be impracti cable if not unsafe on active urban streets, and would impair livestock and ag ricultural activities in rural farming areas. Instead of this control measure, EPA should focus on the need for appropriate sediment control BMPs placed as and where necessary to protect storm drains and/or receiving waters.

o Sediment control measures - Minimize the length of slopes and install linear sediment controls along the toe, face and at the grade breaks of exposed and erodible slopes. [40 CFR §450.21(b)(3)]

Slopes vary significantly in length project-by-project. A very short slope may not require this type of sediment control measure. Moreover, the natural te rrain and other access limitations may make installation of linear sediment controls infeasible.

o Sediment control measures - For common drai nage locations that serve an area with 10 or more acres disturbed at one time, install and maintain a sediment basin to

control and treat the stormwater runoff. The permitting authority may allow

alternative controls where alte rnative controls provide an equivalent or better level of pollutant reduction. The sediment ba sin must incorporate, at a minimum, [specified] requirements. [40 CFR §450.21(b)(8)]

Utility construction projects are typically long and narrow and may cross a number of watersheds, so the requirement for a sediment basin for every project over 10 acres would be unduly burdensome. One way to adjust the acreage threshold for linear projects would

be to include consideration of the size of the disturbance relative to the size of the watershed(s) crossed by the project. This is similar to the approach taken in Georgia. When the size of a watershed is compared to the size of the area to be disturbed by the linear project, the relative impacts are often so small as to be practically negligible. The same cannot be said for non-linear developmen ts that are concentrated in only a few watersheds or in just one.

Utilities would have to acquire more rights-of-way to accommodate the basin, especially in hilly areas, thereby increasing the environmental impact and the cost of the overall project, while not providing any proportional water quality benefit. A 50 foot wide disturbance, which might be typical for a u tility line when you factor in the access road and a trench and spoil pile, would be 1.65 miles long before it reached the 10-acre threshold, and because of terrain changes, w ould make the siting, installation and use of a sediment basin particularly challenging.

More generally, EPA’s proposed measure lack s sufficient detail a bout how it will be applied. What is a common drainage location ( e.g. , is it every stream crossing on a linear- 8 - project)? Does a common drainage loca tion include all unnamed drainages leading ultimately to a common stream on a linear proj ect? What happens if a site includes 11

disturbed acres with 10 acres dr aining to one location and the 11 th acre to another ( e.g. , will two basins be required, even if the second one only captures an acre of disturbed land)? EPA needs to address these and othe r practical applicabil ity questions before finalizing the rule. 4

Toward that end, UWAG recommends that EPA remove this measure altogether as applied to linear utility projec ts, reconsider this measure fo r other types of projects, and allow for alternative BMPs depending on site conditions.

o Sediment control measures - Direct stormw ater discharges from sediment controls to seep berms and level spreaders or utilize spray or drip irrigation systems to distribute stormwater to vegetated areas a nd functioning stream buffers to increase

sediment removal and to maximize infiltration. [40 CFR §450.21(b)(9)]

As proposed, this control m easure would be required at all locations where sediment controls are installed. For linear utility proj ects, this control measure must be qualified

with “where feasible.”

Also, linear utility projects conducted in exis ting urban areas should be exempt from this control measure, since most of the soil distur bance will occur within existing paved areas.

o Pollution prevention measu re - Implement measures to minimize the exposure of stormwater to building materials, landsca pe materials, fertilizers, pesticides, herbicides, detergents, and other liquid or dry produc ts. Implement appropriate chemical spill prevention and response procedures. Any spills and leaks that do occur shall be immediately addressed in a manner that prevents the discharge of pollutants. [40 CFR §450.21(c)(6)]

Many linear utility projects are designed to be exposed to the elements after construction is complete (e.g., power poles, tower components, insulators, conductors, pipes, electrical and other equipment). These and similar t ypes of materials shou ld be specifically exempted from this control measure.

If these or other controls end up being imposed on linear utility projects, then EPA must also specifically define “constructi on activity” to exclude the type s of above grade vegetation removal practices that are common to overhea d electric transmission lines and other similar projects. This would closely parallel existing exem ptions for silvicultural activities. By way of example, under Option 2 (which we oppose), a tr ansmission line right-of-way may span 30 acres with only one pole. It would be illogical and unf air to impose control requirements and numeric effluent limitations based solely on the excavation of a single hole for installation of this pole.

4 We note that these types of questions apply generally to a ll sites to be regulated under the new rule and, in turn, our comments here extend beyond linear utility projects. In short, even if EPA exempts or otherwise differentiates linear utility projects, it still must address these questions more generally.- 9 - 3b. More generally, EPA must revise the efflue nt guidelines to address to address the following issues and concerns.

The following comments apply to both site development and linear construction.

o Erosion controls

- Stabilize disturbed soils immediat ely when earth disturbing work has temporarily or permanently ceased. Stabilization measures must be implemented immediately on any portion of the site whenever fina l grade is reached or when earth disturbing work has been stop ped on that portion of the site and will not resume for a period exceeding 14 calendar days. [40 CFR §450.21(a)(1)]

This control measure should exclude access roads, equipment pads and other similar areas on linear utility projects that, by design and due to their function, may not be revegetated.

In addition, EPA should define “immediately ” to distinguish that some restoration activities may be initiated immediately (such as the plantin g of vegetation) but will not

achieve final stabilization until such time as vegetation becomes established. Moreover,

EPA should be careful to avoid use of the te rm “immediately” without proper context, if its use promotes faster stabilization practi ces that increase impervious areas. Examples of very immediate stabiliza tion practices include using rock, concrete or asphalt.

Finally, EPA should consider adding a de minimis exemption for small areas of disturbance within a larger proj ect footprint that may be infe asible to stabilize right away.

o Erosion controls - Minimize the amount of soil exposed for the duration of the construction activity as well as at any one time during the construction activity. [40 CFR §450.21(a)(3)]

Although minimizing the amount of exposed soil may be prudent in concept, the control

measure must be better defined in order to avoid subjective determin ations about whether or not a project complies with it.

o Erosion controls

- Preserve topsoil and natural vegetation. [40 CFR §450.21(a)(5)]

It is not clear whether this control measure requires minimizing the disturbance of topsoil where feasible, or, alternatively, requires the st ockpiling of topsoil for reuse. If the latter, we note that the stockpiling of topsoil in connection with linear utility projects may be feasible only on certain portions of the project, if at all, due to access, space and terrain

constraints.

In addition, it is not clear whether EPA intends for cut, dead vegetation to be preserved. We suggest that EPA clarify this issue by changi ng the measure to read: “Preserve topsoil for reuse and existing ve getation where practicable.”- 10 - o Erosion controls - Establish temporary or permanent vegetation, such as grass or sod, or use non-vegetative controls such as mulch, compost, geotextiles, rolled erosion control products, polymers or soil tackifiers to stabilize exposed soils. [40 CFR §450.21(a)(12)]

This control measure complements the one in 40 CFR §450.21(a )(1) and should be

combined as follows:

“Temporary or permanent erosion control measures may include vegetation, such as grass or sod, or non-vege tative controls such as mulch, compost, geotextiles, rolled erosion control produc ts, polymers or soil tackif iers to stabilize exposed

soils.”

Without this revision, this control measur e could be interprete d as a conflicting requirement that, unlike 40 CFR §450.21(a)(1), is not subject to any time constraints ( i.e.

, 14 days).

o Sediment control measures - Control discha rges from silt fences using a vegetated filter strip or vegetated buffer at least six feet in width. [40 CFR §450.21(b)(2)]

This control measure is too prescriptive a nd may not be uniforml y appropriate. Some locations may be more amenable to double silt fencing or other equivalent measures.

It also may not be feasible for all types of linear utility projects. For example, corridors that run through forested areas may already have “natural” vegetated strips, making the provision for additional vegetated filter stri ps or buffers redundant. Moreover, many transmission lines are designed for minimum impacts, including topping of trees (rather than removal), and use of existing corridors and temporary roads. EPA should clarify that only sediment controls appropriate to linear projects a nd the topography through which they run need be put in place (which in some cases woul d include the natural vegetative buffers that exist on either side of the corridor or for public streets, the protection of nearby storm drain inlets).

o Sediment control measures - Establish, us e and maintain stabilized construction entrances and exits. Install, utilize and maintain wheel wash stations to remove sediment from construction equipm ent and vehicles leaving the site. [40 CFR §450.21(b)(4)]

This control measure is too prescriptive: th e requirement to install wheel wash stations

should be amended to include “where n ecessary.” Depending on site conditions, appropriate entrance and exit controls may be sufficient. In addition, many linear utility projects parallel existing paved roads and may require numerous points of temporary access on and off these roads. Due to project constraints, it may not be feasible or necessary to establish stabi lized construction entrances for each point of temporary

access. We recommend that EPA revise the control measure as follows:- 11 - “Linear utility projects shall implement effective off-site tr acking controls at construction project entrances and exits, which can include controls such as stabilized construction entrances, sweepi ng and/or other tracking controls.”

o Sediment control measures - Remove any sediment and other pollutants, including construction materials, from paved surfaces daily to minimize discharges from the site. Washing sediment and other pollutants off paved surfaces into storm drains is prohibited unless those storm drains di scharge to a sediment basin or other

sediment control on the site. [40 CFR §450.21(b)(5)]

EPA should revise this control measure to cl arify that sweeping is only required as necessary on those days during which construc tion activity actually occurs, or when there is sufficient accumulation to cause dusting or mobilization of sediments to the receiving

stream.

o Sediment control measures - Control sediment and other pollutants from dewatering activities and obtain and co mply with any state or local discharge standards or permits for dewatering ac tivities. Discharges from dewatering activities are prohibited unless treated to minimize the discharge of pollutants and sediment within the range of particle sizes expected to be present on the site. [40 CFR §450.21(b)(7)]

EPA should revise this control measure to cl arify that it applies when the dewatered waste is discharged to waters of the U.S., but not when such waste is discharged to land and allowed to percolate. Stormwater or groundwater seepage into trenches and

excavations should be allowed to be discharged to land ( e.g. , vegetated areas) for percolation without having to be treated (s ubject, of course, to any state or local regulatory requirements a ssociated with land app lication activities).

For dewatering activities that discharge to wate rs of the U.S., the discharger is already bound to comply with the limits and conditions set forth in any available NPDES permit for the discharge. Therefore, the second senten ce of this measure should either be deleted or revised to read: “Discharges from dewate ring activities must comp ly with the limits and conditions of the NPDES permit obtained for such discharges.”

o Pollution prevention measure - Prohibit the discharge of fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance. [40 CFR §450.21(c)(3)]

BMPs should be implemented to control and minimize the discharge of fuels, oils and other materials used in vehicle and equipm ent operation and maintenance. Incidental drips of these materials from vehicles and equipment can be minimized and controlled but it is unrealistic to expect them to be entirely prevented.- 12 - o Pollution prevention measure - Prohibit the discharge of pollutants resulting from the washing of equipment and vehicles where soaps or solvents are used. [40 CFR §450.21(c)(4)]

EPA should revise this control measure to authorize the discha rge of this type of wash water if it has been treated as necessary to meet any applicable effluent limits and is discharged in compliance w ith any applicable permit.

o Pollution prevention measure - Prevent stormwater runoff from contacting areas

with uncured concrete to minimi ze changes in stormwater pH. [40 CFR §450.21(c)(7)]

We respectfully submit that the term “uncured ” is fatally imprecise, especially since it may take several weeks for concrete to fully cu re. That said, we appreciate EPA’s intent to prevent stormwater from contacting conc rete at a stage when it could cause a significant change in pH. We suggest th at EPA revise and clarify this pollution prevention measure as follows: “Minimize st ormwater runoff contac t with newly poured

concrete.”

4. UWAG would be willing to support Option 1 if modified as explained herein, but only if EPA makes the BMP re quirements less prescriptive.

UWAG believes that EPA’s continued reliance on non-numeric effluent limitations, as proposed in Option 1, is both defensible and appropriate. The rest of EP A’s stormwater program (Phase I and II rules, as well as gene ral permits for construc tion, industry and muni cipal separate storm sewer systems) is grounded in BMPs. Moreover, EPA’s long-standing policy for water qualitybased effluent limitations in stormwater permits expressly supports the imposition of BMPs in

lieu of numeric limits. See 61 Fed. Reg. 43761 (August 26, 1996). Ne edless to say, if BMPs are sufficient to meet the water quality “safety net” requirements of the Clean Water Act, then by definition they must also be sufficient to meet the technology-based “floor.”

That said, we caution EPA against being overly-pres criptive in defining the BMPs that will be required in the final rule. Effective stormwater management is inherently location-specific. One of the great successes of EPA’s existing stormw ater program is to allow for innovation and adaptation by site operators as they seek to develop and implement the most efficient and effective BMPs for their particular locations. This success can also be seen in local sediment and erosion control programs, since the locality typically is most know ledgeable about local conditions and appropriate BMPs.

In our comments above, we note areas where feasibility may influence the application of particular control measures to li near utility projects. More gene rally, we urge EPA to provide for alternative approaches that can be tested and shown to be as effective at meeting the goals set forth in the proposal -- goals that UWAG suppo rts. By way of example and not limitation, EPA

should authorize alternatives to sediment basins (e.g., inlet sedime nt traps, mulch berms, silt fences) where appropriate due to site conditions and needs. Doing so would be in keeping with the recent report of the National Research Council, Urban Stormwater Management in the- 13 - United State s (October 2008), which EPA commissioned, in part, to facilitate this very rulemaking. As the Council noted, “our unders tanding of [the perf ormance of different stormwater control measures] is rapidly changing to reflect new research, testing, field experience, and maintenance history. The tran slation of these new data into design and implementation guidance is accelerating as well.”

With the Council’s findings as a platform, we believe that EPA should promote the further

evolution of stormwater control measures thro ugh adaptive implementation approaches rather than overly-prescriptive BMPs. Likewise, EPA should shift its focus away from structural

BMPs to non-structural BMPs. Doing so would be in keepi ng with the National Research Council report cited above. Acco rding to the Council, “[n]onstruc tural practices, which tend to be longer-term and lower-mainten ance solutions, can grea tly reduce the need fo r or increase the effectiveness of structural [measures].”

One way for EPA to inspire flexibility and inn ovation in the implementation of BMPs is to specify categories of BMPs instead of particular measures. Doi ng so would address many of the

concerns that UWAG raised in sections 3a. and 3b, above.- 14 - Exhibit A Projected Applicability of EPA’s Option 2 Based on Soil Clay Content and Rainfall Erosivity

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