HUNTON & WILLIAMS LLP 

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February 26, 2009 

BROOKS M. SMITH 

DIRECT DIAL: 804-787-8086 

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 Standards 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 

29142.070315 EMF_US 26858617v1 www.hunton.com 
COMMENTS 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. • Washington, 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 the 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 would 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 sites would be subject to Option 1. In addition, sites with at 

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

EPA proposes to select Option 2 for this rulemaking. For the 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 generally, application of the C&D Proposal to linear utility projects. 

Please note that UWAG is a member of the Federal Water Quality Coalition, which has 

submitted separate comments on the C&D Proposal. UWAG endorses those comments and 

incorporates them by reference here. 

1. UWAG strongly opposes the numeric turbidity limitation that EPA proposes to 

include in both Options 2 and 3. 

EPA’s proposed numeric turbidity 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 the use of ATS. For the following reasons, this 

information is inadequate to support EPA’s proposal. 

First, EPA only used data from 19 ATS at 17 sites 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 Association also are UWAG 

members. 
- 2 - 

performance in different regions around the country. Nor is it representative of those 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 this system could not meet the 

limitation raises serious concerns about EPA’s expectations of performance, 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 representative of performance at the many different types of sites to be 

regulated under the C&D Proposal. EPA’s record of vendor information 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 answers, as opposed to actual performance data 

independently collected and/or validated by EPA. In short, only a handful of the entries include 

actual data, and of those, the datasets are extremely limited (e.g., DCN 43002-274.1, 2003-2004 

turbidity dataset). Moreover, only a small percentage of the 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 important for the agency to identify 

and make available technical studies and data that it has employed in reaching the decisions to 

propose particular rules. To allow an agency to play hunt the peanut with technical information, 

hiding or disguising the information 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 fails to reveal portions of the technical basis for a proposed rule 

in time to allow for meaningful commentary.”); Riverkeeper, Inc. et al. v. United States, 475 

F.3d 83 (2nd Cir. 2007); 40 CFR § 25.4(b)(1) (“Providing information to the public is a necessary 

prerequisite to meaningful, active public involvement” in EPA rulemaking under the Clean 

Water Act). Without access to all 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 appropriateness 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 practice in nearly every 
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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 based, in part, on EPA’s utter failure 

to credit the existing stormwater regulatory programs (Phase I and II rules, as well as general 

permits for construction, industry and municipal separate storm sewer systems) with any 

environmental benefits (i.e., no removal of sediment). This error 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 inherently 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 dependent on actual in-stream conditions. Based on 

information and belief, background in-stream conditions 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 associated 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 natural terrain) and staffing ATS during severe weather 

conditions. Had EPA conducted such assessments, we believe that EPA would have concluded 

that passive treatment options are more appropriate, and less potentially damaging, than active 

ones. 

We urge EPA to explore other, more environmentally-friendly passive treatment options. We 

appreciate that EPA must balance many competing 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, energy 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 erosivity for Option 2, and at least 10 disturbed acres 

for Option 3). What happens when a site meets 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 respectfully submit that any acreage thresholds 

provided in the final rule specifically apply (a) to disturbed, contiguous acreage that drains to a 

common point within the project site, (b) only during the period of actual disturbance, and (c) 

only where it is feasible to construct and operate 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 should account for background water quality conditions 

(e.g., upstream sediment loading). EPA should also provide a “BMP defense” that protects 

permittees who properly design, install and maintain their BMPs but nonetheless periodically 

exceed the action level or benchmark. Such a defense exists under the Georgia program and 

would serve as a good model for these guidelines. 

2. EPA has not provided the requisite legal, technical or economic justification to 

apply the C&D Proposal to linear utility projects. 

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

The differences between conventional land development projects and linear utility projects are 

compelling. Attempting to apply the new guidelines without regard to these differences and 

without proper justification will result in unacceptably high costs to, and compliance challenges 

for, linear utility project operators without any corresponding environmental benefits. 

As EPA has acknowledged, “[s]everal key documents support the proposed regulation.” These 

include documents defined by EPA as the Development 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 the exception of NAICS 237310 (Highway, street, 

and bridge construction), data are not available to support an assessment 

of the number and character of projects 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 analysis 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 related structures construction). 

This omission undermines not only EPA’s Economic Analysis of the costs associated with the 

C&D Proposal, but also its Environmental Assessment of impacts and benefits, and its data 

collection and analysis in support of both non-numeric and numeric 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 properties, (b) may extend tens or hundreds of miles 

over different natural terrains and watersheds, (c) often 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 structural BMPs like sediment ponds. 
- 5 - 

 

In addition, linear utility projects, particularly overhead electric transmission lines, typically do 

not increase impervious surfaces or concentrate or re-direct stormwater. In fact, many such 

projects apply above-grade vegetation removal practices (rather than more traditional clearing 

and grubbing) such that the only actual disturbance occurs in the immediate vicinity of the line 

support structure. In short, the impacts from linear utility projects, 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 their inclusion (subject, of course, to further 

notice and comment safeguards), then EPA must revise the effluent guidelines to 

reflect issues, impacts and costs peculiar to such projects. 

As described in section 2, unless EPA properly assesses the impacts from linear utility projects 

and the technologies available to address those impacts, EPA lacks authority to include such 

projects in the C&D Proposal.3 That said, if EPA elects to proceed with such an assessment, 

then at a minimum, EPA must revise and provide 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 linear 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 compaction by construction equipment in areas 

that will not contain permanent structures or where compaction is not necessary for 

2

 Many states further distinguish overhead transmission projects from other linear utility projects, because overhead 

projects do not create new flow patterns, concentrate flow, add impervious surface or otherwise materially affect 

water quality. In these situations, attempting to install sediment and erosion control measures may actually be more 

disruptive than the project itself. We urge EPA 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 category 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 that will not contain structures or where 

compaction is not necessary for structural integrity, utilize 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 roads, 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 compacted 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 are 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 measure 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 these scenarios, the ability to provide and 

maintain natural buffers is inherently limited and may prove to be infeasible. When 

natural buffers cannot be maintained, utilities should be authorized to implement 

alternative BMPs such as hand clearing and re-vegetation of disturbed buffer areas. 

o Erosion controls - Sequence/phase construction activities 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 overhead 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 crosses 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 side-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 dikes, storm drain inlet protection, filter 

berms, and silt fencing. Perimeter control measures along the down-slope 

perimeter of the site must be installed following the contours of the land. Discharge 
- 7 - 

stormwater from perimeter controls through 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 miles of linear construction. This would result in a hydrologic 

barrier across miles of landscape in natural areas, would be impracticable if not unsafe on 

active urban streets, and would impair livestock and agricultural 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 terrain and other access 

limitations may make installation of linear sediment controls infeasible. 

o Sediment control measures - For common drainage 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 alternative controls provide an equivalent or better level 

of pollutant reduction. The sediment basin 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 developments 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 utility 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, would make the siting, installation and use of a 

sediment basin particularly challenging. 

More generally, EPA’s proposed measure lacks sufficient detail about 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 location include all unnamed drainages leading 

ultimately to a common stream on a linear project? What happens if a site includes 11 

disturbed acres with 10 acres draining to one location and the 11th 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 other practical applicability questions before 

finalizing the rule.4

 

Toward that end, UWAG recommends that EPA remove this measure altogether as 

applied to linear utility projects, reconsider this measure for other types of projects, and 

allow for alternative BMPs depending on site conditions. 

o Sediment control measures - Direct stormwater discharges from sediment controls 

to seep berms and level spreaders or utilize spray or drip irrigation systems to 

distribute stormwater to vegetated areas and functioning stream buffers to increase 

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

As proposed, this control measure would be required at all locations where sediment 

controls are installed. For linear utility projects, this control measure must be qualified 

with “where feasible.” 

Also, linear utility projects conducted in existing urban areas should be exempt from this 

control measure, since most of the soil disturbance will occur within existing paved areas. 

o Pollution prevention measure - Implement measures to minimize the exposure of 

stormwater to building materials, landscape materials, fertilizers, pesticides, 

herbicides, detergents, and other liquid or dry products. 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 types of materials should 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 “construction activity” to exclude the types of above grade vegetation 

removal practices that are common to overhead electric transmission lines and other similar 

projects. This would closely parallel existing exemptions for silvicultural activities. By way of 

example, under Option 2 (which we oppose), a transmission line right-of-way may span 30 acres 

with only one pole. It would be illogical and unfair 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 all 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 effluent 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 immediately when earth disturbing work 

has temporarily or permanently ceased. Stabilization measures must be 

implemented immediately on any portion of the site whenever final grade is reached 

or when earth disturbing work has been stopped 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 planting 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 term “immediately” without proper context, if 

its use promotes faster stabilization practices that increase impervious areas. Examples 

of very immediate stabilization practices include using rock, concrete or asphalt. 

Finally, EPA should consider adding a de minimis exemption for small areas of 

disturbance within a larger project footprint that may be infeasible 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 determinations 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 stockpiling 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 changing the measure to read: “Preserve 

topsoil for reuse and existing vegetation 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-vegetative controls such as mulch, compost, geotextiles, 

rolled erosion control products, polymers or soil tackifiers to stabilize exposed 

soils.” 

Without this revision, this control measure could be interpreted 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 discharges 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 and may not be uniformly 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 strips 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 and the topography through 

which they run need be put in place (which in some cases would 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, use and maintain stabilized construction 

entrances and exits. Install, utilize and maintain wheel wash stations to remove 

sediment from construction equipment and vehicles leaving the site. [40 CFR 

§450.21(b)(4)]

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

should be amended to include “where necessary.” 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 stabilized 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 tracking controls at 

construction project entrances and exits, which can include controls such as 

stabilized construction entrances, sweeping 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 discharge to a sediment basin or other 

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

EPA should revise this control measure to clarify that sweeping is only required as 

necessary on those days during which construction 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 comply with any state or local discharge 

standards or permits for dewatering activities. 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 clarify 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 (subject, of course, to any state or local 

regulatory requirements associated with land application activities). 

For dewatering activities that discharge to waters 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 sentence of this measure should either be deleted 

or revised to read: “Discharges from dewatering activities must comply 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 equipment 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 discharge of this type of wash 

water if it has been treated as necessary to meet any applicable effluent limits and is 

discharged in compliance with any applicable permit. 

o Pollution prevention measure - Prevent stormwater runoff from contacting areas 

with uncured concrete to minimize 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 cure. That said, we appreciate EPA’s intent 

to prevent stormwater from contacting concrete at a stage when it could cause a 

significant change in pH. We suggest that EPA revise and clarify this pollution 

prevention measure as follows: “Minimize stormwater runoff contact 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 requirements 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 EPA’s stormwater program (Phase I 

and II rules, as well as general permits for construction, industry and municipal 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). Needless 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-prescriptive 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 stormwater 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 knowledgeable about local 

conditions and appropriate BMPs. 

In our comments above, we note areas where feasibility may influence the application of 

particular control measures to linear utility projects. More generally, 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 supports. By way of example and not limitation, EPA 

should authorize alternatives to sediment basins (e.g., inlet sediment 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 States (October 2008), which EPA commissioned, in part, to facilitate this very 

rulemaking. As the Council noted, “our understanding of [the performance of different 

stormwater control measures] is rapidly changing to reflect new research, testing, field 

experience, and maintenance history. The translation 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 through 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 keeping with the National Research 

Council report cited above. According to the Council, “[n]onstructural practices, which tend to 

be longer-term and lower-maintenance solutions, can greatly reduce the need for or increase the 

effectiveness of structural [measures].” 

One way for EPA to inspire flexibility and innovation in the implementation of BMPs is to 

specify categories of BMPs instead of particular measures. Doing 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 

29142.070315 EMF_US 26814555v3