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Legal Authority t o Include Non

- Numeric Effluent Limitations or Best Management
Practices ( BMPs) in the Construction and Development Effluent Limitations Guidelines and New Source Performance Standards (Feb ruary 15, 2012)

In the Construction and Development Effluent Limitations Guidelines and New Source Performance Standards (C&D Rule), codified at 40 CFR part 450, EPA is requiring active

construction and development sites required to obtain NPDES permit coverage pursuant to 40

CF R 122.26(b)(14)(x) and (b)(15) to implement non

- numeric effluent limitations and best management practices ( BMPs) to control and minimize the discharge of pollutants from their

site s to surface waters. EPA e stimates that compliance with the C&D Rule will significantly reduce the amount of sediment and other pollutants discharged from construction and development sites. Those other pollutants include nutrients, metals, and other toxic and nonconventional pollutants that may be naturally present in soils, a nd can be contributed during construction activity or by activities that occurred at the site before the construction activity.

EPA’s legal authority to promulgate this regulation is f ound in section 301(b), s ection 304(e)

, section 306, s ection 308(a), s ection 402(a)(1)(B), s ection 402(a)(2) and s ection 501(a) of the
Clean Water Act (CWA) , 33 U.S.C. § 1251, et seq. EPA also relies on 40 C.F.R. § 122.44(k) ( 1), ( 2) and (4)

.

EPA is authorized under CWA section 304(e) to publish regulations on a categorical basis for certain toxic or hazardous pollutants for the purpose of controlling plant site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage, when the Administrator determines (1) that such incidents are associated with or ancillary to the industrial manufacturing or treatment process of point sources within the class or category, and (2) that the incidents may contribute significant amounts of toxic or hazardous pollutants to navigable waters. The BMPs

in the C&D Rule ar e directed, among other things, at preventing or otherwise controlling or minimizing the presence and/or amount of metals discharged from the site, whether those metals occur naturally in the soil or were introduced during construction ac tivity. Such metals include copper, nickel, lead, and silver, among many others, that are toxic pollutants pursuant to CWA section 307(a)(1) . In addition, construction sites may contain oils or other hazardous substances designated under section 311 of t he CWA . For this reason, t he Administrator has determined

that runoff of such metals is associated with or ancillary to construction activity and that failure to prevent or control such discharges could contribute significant amounts of toxic or hazardous pollutants to navigable waters

. See also 40 CFR § 122.44(k)(1) (“In addition to the conditions established under § 122.43(a), each NPDES permit shall include conditions meeting the following requirements when applicable ... (1) Authorized under section 304 (e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities.”).

T he BMPs established in the C&D Rule will control and minimize the toxic and/or hazardous

effects of discharges of these pollutants. As the U.S. Court of Appeals for the D.C. Circuit observed after reviewing the goals of the CWA and its legislative history, “The indications are abundant that EPA was intended to possess broad latitude in identifying and regulating suspected
toxics.” NRDC v . EPA , 822 F.2d 104, 118 (D.C. Cir. 1987)(upholding EPA regulation requiring information in permit applications regarding effluent characteristics); see Statement of Sen. Muskie (Dec. 15, 1977), 95th Cong., 2d Sess., reprinted in A Legislative History of t he Clean2

Water Act of 1977, Vol. 3, at 453

- 54 (1978) (citing a spill of mirex to illustrate need for § 304(e) authority, even though mirex is not designated as a § 307(a) toxic pollutant or a § 311 hazardous substance). Courts have also upheld EPA’s aut hority to issue BMPs, e.g., Citizens Coal
Council v. US EPA , 447 F.3d 879, 895

- 96 (6 th Cir. 2006)(finding best management practices within the statutory definition of “effluent limitation” as a restriction of discharges) citing NRDC, Inc. v. EPA , 673 F.2d 400, 403 (D.C. Cir. 1982).

For authority to impose BMPs on construction and development sites required to obtain NPDES permit coverage under 40 CFR 122.26(b)(14)(x) and (b)(15), EPA also relies on sections 402(a) and 501(a) of the CWA and 40 C.F.R. § 122.44(k) (3) and (4) of EPA’s regulations. Under section 402(a)(1), the Administrator is authorized to issue a permit “upon condition that [the] discharge will meet either all applicable requirements under sections 301, 302, 306, 307, 308,
and 40 3 of this Act, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act.” EPA’s authority to establish permit conditio ns under this section is very
broad. See NRDC v. Costle , 568 F.2d 1369, 1380 (D.C. Cir. 1977). As applied in this context, section 402(a)(1) authorizes EPA to establish controls on “any pollutant, or combination of pollutants,” for which EPA has not yet promulgated effluent limitations guidelines or standards under sections 301 or 306 that would be applicable to the permittee in question. Given the lack of numeric effluent limitations guidelines or standards, BMPs are necessary to carr y out the provision s of the Act. In addition, section 402(a)(2), read in concert with section 501(a), authorizes EPA to prescribe as wide a range of regulatory permit conditions as the Agency deems appropriate in order to assure compliance with applicable effluent limits. (Section 501(a) authorizes the Administrator to carry out her functions through regulation. ) EPA has determined
that active construction sites without an adequate BMP program consistent with the C&D Rule will discharge levels of sediment, nutrients, metal s and other pollutants associated with active

construction that would not reflect the level of control representing the Best Available Technology Economically Achievable (BAT) and Best Available Demonstrated Control Technology (BADT) for New Source Perform ance Standards ( NSPS ) required by the CWA.

EPA’s regulations at 40 C.F.R. § 122.44(k)(2) expressly authorize B M Ps to control or abate the discharge of pollutants when authorized under section 402(p) for the control of stormwater discharges. EPA has hist orically controlled stormwater through the use of BMPs in its general permits covering active construction. EPA also heavily relies on non

- numeric effluent

limitations an d BMPs in controlling other “wet weather” discharges, such as those applicable to

mun icipal separate storm sewer systems and industrial storm water. Further , EPA’s regulations at 40 C.F.R. § 122.44(k) (4) specifically authorize permit writers to impose, when applicable, BMP permit conditions to control or abate the discharge of pollutants in any case when “ [t]he practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and inte nt of [the] CWA.” 40 C.F.R. § 122.44(k)(4 ). In this case, EPA has determined

that the BMPs in the C&D Rule are reasonably necessary to carry out the purposes and intent of
the CWA

. T he stated goal s of the CWA are “to restore and maintain the chemical, p hysical, and biological integrity of the Nation’s waters” and “that the discharge of pollutants into the navigable waters be eliminated by 1985”

. See CWA section 101(a) and 101(a) (1). To that end, section 301(b)(2)(A) requires establishment of effluent li mitation guidelines for a category or class representing best available technology economically achievable “which will result in3

reasonable further progress toward the national goal of eliminating the discharge of all pollutants.” And section 306 requires new source performance standards reflecting best available demonstrated control technology that requires, where practicable, a standard “permitting no discharge of pollutants.” EPA has determined that the BMPs in the C&D Rule

, by preventing , controlling, and/ or minimizing the discharge of stormwater from active

construction sites , are necessary to meet that statutory requirement. And EPA has determined

that the BMPs in the C&D Rule are also reasonably necessary to carry out the purposes and

intent of the CWA and hence are authorized under , among other legal authorities discussed above, 40 CFR § 122.44(k) (4)

.

Although a requirement to establish and implement BMP s of the t ype described in the C&D Rule could be imposed on a case

- by

- case basis under authorit y of section 402(a)(1) and 40 C.F.R. § 122.44(k) (2) and (4) , EPA has decided to promulgate the requirement on a categorical basis for active construction sites required to obtain permit coverage pursuant to 40 CFR § 122.26(b)(14)(x) and (b)(15) under secti on 304(e) and under its broad authority conferred by section 501(a). As discussed above, s ection 304(e) expressly authorizes EPA to promulgate BMPs by regulation on a categorical basis. In addition, section 501(a) authorizes the Administrator to prescrib e such regulations as are necessary to carry out her functions under the
Act. EPA has determined that the BMP s specified in part 450 are necessary to ensure that each active construction site required to obtain NPDES coverage p revent , control, and/or mini mize the discharge of pollutants from its site to waters of the U.S. While the BMP regulation is intended to provide considerable flexibility to active construction sites in designing their BMP s , EPA has determined that the various BMPs specified in the regulation represent the BAT and BADCT
level of control . By codifying them into a regulation of general applicability, EPA intends to
promote expeditious implementation of such BMP s and to assure uniform and fair application of the baseline requirements across the country . EPA also believes that the regulation represents an appropriate and efficient use of its technical expertise and resources that, when exercised at the national level, will reli eve state permit writers of the burden of implementing this aspect of the

CWA on a case

- by

- case basis. Thus, in order to ensure that minimal BMP requirement s are in place for active construction sites nationwide required to obtain NPDES permit coverage, a nd to promote efficient administration of the NPDES permit program, EPA has promulgat ed BMPs for
such active construction sites in the C&D Rule

.

EPA also relies on Section 308(a) as authority to require active construction sites required to
obtain NPDES permit coverage to develop and implement the BMP s prescribed in the C&D

Rule . Section 308(a) authorizes EPA, among other things, to require owners or operators of point sources to establish and maintain records, make reports, install, use and maintain

mo nitoring equipment, sample effluent, and provide such other information as the Administrator may require in order to carry out the objectives of the Act. Among other things, EPA expects that the perm itting authority may be able to use such information to monitor active construction
sites’ compliance with the permit’s (based on the C&D Rule’s) BMP requirements. See Sections 308(a)(2) and 402(a)(2).