January 17, 2014

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## Response to Comment Document

Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category Proposed Rule

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1.0 General Comments on Regulatory Text

Summary :
Many commenters supported the propos ed changes to the rule. Some commenters offered suggested revisions to the proposed regulatory text, which are discussed below. Other commenters were not supportive of the proposed changes, or to specific components of the proposed changes. These
comments are also discussed below. Many commenters were supportive of EPA proposing to remove the numeric turbidity standard, although some indicated that it would be preferable for EPA to completely remove those portions from the Code of Federal Regulations, as o pposed to reserving those components.

Response:
EPA has responded to comments specific to each of the eight proposed revisions in the corresponding sections below. This response is for comments that were not specific to the eight proposed changes, but

were rather of a more general or over

- arching nature.
Some commenters remarked that EPA's revisions weaken the standards. EPA does not agree that the revisions weaken the standards, but rather the revisions provide additional flexibilities and/or clarity, as

a ppropriate (see 74 FR 63017)

. In addition, allowing exemptions from certain provisions because those provisions are infeasible does not mean that the permittee is not required to implement any controls. EPA expects that permitting authorities will require the use of alternative controls that are feasible to be implemented. For example, in EPA's most recently issued Construction General Permit (CGP)
, i f it is infeasible to provide and maintain an undisturbed natural buffer of any size on a site , the permitte e can implement erosion and sediment controls that achieve the sediment load reduction equivalent to a 50

- foot undisturbed natural buffer

. Other commenters affirmed this need for additional flexibility , particularly with respect to linear projects. The nat ure of construction activities is such that, for some sites, it may be cost

- prohibitive or technologically impossible (i.e., infeasible) to implement a given requirement. In these cases, it is not EPA's intention to impose on permittees requirements that a re not economically practicable and achievable (i.e., that are more stringent than the best available technology economically achievable or the best available demonstrated control technology) . Rather, it is EPA's position that the revisions provide appropr iate flexibilities with respect to the final rule requirements to accommodate unique, site

- specific conditions that may arise with a small number of sites. In addition, permitting authorities have flexibilities in how they incorporate the final rule requir ements into theirJanuary 17, 2014

Page 2 of 52 general and individual permits to accommodate such site

- specific conditions. In some cases, EPA agrees in principle that the flexibilities included in the final rule may result in exempt ing certain projects from certain permitting require ments implementing the final rule provisions. However, the nature of construction site stormwater management is such that there are layers of controls in place, and therefore providing such exemptions for certain requirements in certain limited cases to re flect a site

specific constraint will not result in a significant reduction in pollution control. EPA intends these exemptions to only apply in a limited number of cases, since permittees have choices in terms of when and how they choose to undertake const ruction activities and permitting authorities have discretion in terms of the types of construction activities that can be permitted and alternative practices that can be required if a specific control is deemed to be infeasible.

Some commenters remarked t hat EPA's revisions introduce additional ambiguity rather than provide clarification. They were concerned that this ambiguity may lead to increased compliance costs or litigation. EPA does not agree with this comment. As stated above, EPA has determined th at additional flexibilities are warranted in some limited cases due to the site

- specific nature of construction activities (such as soil types, topographic or climatic characteristics, or other relevant factors (see 74 FR 63000, 63011)) . EPA has determined that, due to the inherent flexible nature of construction activities, the vast majority of projects can implement the final rule requirements. However, EPA also acknowledges that, due to a site

- specific constraint, one or more of the requirements may be i nfeasible in limited circumstances. Rather than require permittees to implement technologically impossible or cost

prohibitive controls on these sites, it is appropriate to provide additional flexibilities for permittees to comply. EPA purposefully drafted the non

- numeric effluent limitations to allow for flexibility in how the permitting authority implements the requirement in NPDES permits (see 74 FR 63016). EPA expects that permitting authorities will incorporate sufficient flexibilities in permits to al low permittees to select alternative controls that still provide effective pollutant management, while being more cost

- effective.
One commenter requested that EPA provide additional studies to support the technical aspects of the rule. The record for the 2 009 final rule contains numerous technical references describing the performance of controls (see
, for example , Chapter 7 of the Technical Development Document). In addition, the record for the most recent EPA construction general permit (CGP) contains add itional technical documentation supporting aspects of the rule as incorporated into the CGP , such as the Environmental Assessment (EA) for EPA's Reissuance of the National Pollutant Discharge Elimination System (NPDES) General Permit from Construction Acti vities ( EPA

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- 0186 ). See the docket for the CGP reissuance for additional technical references related to performance of erosion and sediment controls

. Some commenters suggeste d that EPA does not have authority to regulate internal processes at or environmental concerns downstream from construction sites , and that EPA can only regulated the discharge of pollutants from the site to waters of the U.S

. With respect to EPA’s authori ty to regulate internal processes, EPA does not agree with this comment. With respect to construction sites, erosion and sediment controls up

- slope of the discharge point are an essential component of effective stormwater management that reduce the dischar ge of pollutants and have been a component of EPA and State construction general permits, and standard industry practice, for some time. See , for example ,January 17, 2014

Page 3 of 52 information in the record to the 2009 final rule specific to this topic (see EPA

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. See also the preamble to this final rule. With respect to addressing downstream environmental concerns (in this case, erosion occurring downstream as a result of changes in flow regime as a result of construction activ ities)
, EPA has decided that it is more appropriate to consider downstream erosion on a site

- specific water quality basis than in this nationally applicable, technology

- based rule at this time , and thus made corresponding edits to that provision of the rul e to limit applicability to the immediate vicinity of the discharge point

.

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Comments Addressed by this Response:
Clarification to the language is welcome and warranted, but the proposed revisions do more to weaken standards than make them clearer.

 
CICWQ supports the changes to the non numeric effluent limits proposed because it provides clarity and removes redundant wording in the rule. Additionally, the changes ensure interpretation of the provisions is consistent with a construction projects design and goals.

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LCRA believes applying rules that were designed for a conventional construction or development project to a linear electric utility transmission line construction project can create a situation where it is infeasible or cost prohibit ive to comply with the rule. In particular, cost prohibitive requirements create a hardship not just for the regulated entity but also for ratepayers who ultimately bear the cost of compliance.

 
In general, several of the proposed amendments appear to be an attempt by the EPA to provide clarification of specific requirements contained within the 2009 Final Rule. However, in several instances EPA has not achieved this goal, and in some cases has increased the level of ambiguity of the proposed requiremen ts. The concern exists that uncertainty within the EPA's C&D Rule will lead to further ambiguity and inconsistency in the interpretation of the proposed requirements at the state and local levels, and within the C&D industry. This could allow individual re gulators or environmental non

governmental organizations to argue that a particular developer is not complying with the rule and the construction general permit, even if the developer is following best practices

-- leading to increased compliance costs and potentially expensive litigation. The majority of the comments that follow demonstrate the need for further clarification and simplification of the proposed requirement language.

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We also request the EPA provide support, in the form of appropriate st udies, for the technical aspects of the proposed amendments.January 17, 2014

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AGC supports EPA’s recognition of the fundamental principle that it can regulate only the “discharge of pollutants through point sources to waters of the U.S.” and agrees with the proposed amendments that are premised on these key facts. AGC supports EPA’s efforts to revise current provisions that wrongly imply that EPA can control “on

- site” activities or even down

- stream environmental concerns, neither of which could be directly related to the discharge of pollutants from point sources (in this case originating from active construction operations subject to NPDES permitting) to waters of the U.S.

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WDEQ finds the revisions to be minor, but positive changes to the original rule language. WDEQ supports the proposed changes.

 January 17, 2014

Page 5 of 52 Comments on 450. 1 1(b)
450.11(b) Infeasible. Infeasible means not technologically possible, or not economically practicable and achievable in light of best industry practices.

TOPIC RESPONSE

EPA received a number o f comments on the proposed definition of infeasible. Some commenters supported EPA’s inclusion of a definition, while some did not. Some commenters offered specific revisions to the definition, while others requested that EPA provide additional examples of specific instances of where a given practice may be infeasible. Some comments requested that EPA incorporate an infeasibility condition into all of the requirements of the final rule, not just those where it is currently proposed.
EPA, in developing the r ule language, incorporated an infeasibility provision into those requirements that are likely to be broadly applicable at most but not all sites due to site

- specific considerations. These provisions are those that require buffers and directing stormwater t o vegetated areas , preserving topsoil, and the use of surface outlets on basins and impoundments. EPA has determi ned that limiting the infeasibility provisions to only these three provisions is appropriate. All other requirements in the final rule are feas ible at all construction sites. As stated by the Pennsylvania Department of Environmental Protection in comments, " there is such a variety of options available to the regulated community that there should rarely be a situation that would present a ‘ not tec hnologically possible ’ project, and in the unlikely event that it does occur, then the site conditions may represent a project which is not be suitable for the construction or development activity.“ EPA agrees with this comment , except that the "not techno logically possible" language applies to specific controls, not the overall project

. Permitting authorities, in developing their general or individual permits and design manuals, have the ability to identify specific BMP requirements reflective of the range of site

- specific conditions necessary to comply with the final rule requirements. EPA has done just this in its most recently issued 2012 CGP

. Individual Comments and Responses:

COMMENT
AASHTO agrees that including the definition of “infeasible” in the b ody of the proposed rule is vital to ensuring consistent application of this term nationwide. However, we are concerned that there are measures that may be technologically possible but not technologically practical . For example, it is technologically possi ble to cover the entire construction site with plastic sheeting, but this approach would not be technologically practical because it would not be possible to install and remove the plastic before and after rain events. Similarly, it may be technologically possible to construct a sediment basin at every outlet from the site, but grading constraints may make this impractical. Highway construction sites have complex staging and traffic handling requirements that render some approaches impractical. AsJanuary 17, 2014

Page 6 of 52 such, AAS HTO recommends that the word “possible” be replaced with the word “practical” so that the revised language would state:
Infeasible means not technologically practical , or not economically practicable and achievable in light of best industry practices.

RESP ONSE
EPA does not agree that "possible" should be replaced with "practical" in the definition of infeasible. The

c ommenter provides two examples of where a practice may be possible but not practical. These examples are to cover an entire construction site with plastic sheeting or to construct a sediment basin at every outlet of the site. However, the C&D rule does not contain either of these requirements. The "unless infeasible" provision in the final rule is limited to three requirements: (1) buffers and d irecting stormwater to vegetated areas , (2) preserving topsoil , and (3) using surface outlets on basins and impoundments. Since the C&D rule does not require operators to cover an entire site with plastic sheeting or to install a sediment basin at every ou tlet, there is no need for a determination of whether such practices are "practical" at a site. Further, since the "unless infeasible" provision is limited to buffers and directing stormwater to vegetated areas , preserving topsoil , and using surface outlet s, it is appropriate to use "technologically possible" instead of "technologically practical" in the definition of infeasible. Finally, the definition also includes reference to economically practicable which would likely apply to the hypothetical situati on suggested by the commenter

.

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COMMENT
AGA respectfully requests that EPA clarify that an operator can demonstrate “infeasibility" on a site

specific basis , consistent with how EPA has discussed “infeasibility” in the preamble to the C&D Rule and in several examples in the 2012 CGP.

RESPONSE
EPA does expect that operators will need to demonstrate infeasibility on a site

- specific basis and will need to document such cases, for example in SWPPPs. Permitting authorities may also describe specific circums tances in their general permits related to infeasibility that may apply on a broader basis or may include specific provisions in individual permits.

 

COMMENT
AGA requests that EPA clarify that unique circumstances, such as emergency conditions or when projects are confined to limited rights

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- way or narrow corridors on larger multi

- operator construction sites, could render pre

- construction control requirements “infeasible” even if they were otherwise achievable under other operating conditions.January 17, 2014

Page 7 of 52 RESPONS E
EPA does not agree that unique circumstances regarding infeasibility of controls should be described in the rulemaking. It is not reasonabl e for EPA to describe all such instances in the rulemaking. Permitting authorities have flexibility to acknowledge such conditions when developing their permits. See, for example, the EPA ’s 2012 CGP description of coverage for emergency projects in Parts 1.2.1 and 7.2.3 as an example of permit language related to emergency projects

. This approach also allows for chang es to infeasibility criteria to be made more easily in the future as technologies and construction practices evolve, since permits are periodically updated and reissued.

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COMMENT
AGA believes the definition of “infeasible” should reference “best indust ry management practices” rather than “best industry practices” for consistency with industry terminology and to achieve consistency with the 2012 CGP’s reference to “BMPs” (best management practices).
AGA urges EPA to make these clarifications by modifying the definition of “infeasible” in the C&D Rule regulations and the 2012 CGP, or at least by including a clarifying explanation in a revised preamble to the final C&D Rule.

RESPONSE
EPA does not agree that the definition of infeasible should reference "bes t industry management practices" instead of "best industry practices." The definition of infeasible is broader in the context of referencing industry construction practices , which includes industry best management practices. EPA is not modifying the 2012 C GP at this time.

 

COMMENT
There are many circumstances in which a specific stormwater control requirement may be technologically “possible”, economically “practicable”, or otherwise “achievable” in light of best practices utilized on other construction sites, but may not be an appropriate, effective, or even necessary mechanism on a natural gas project site, because site

- specific constraints, emergency conditions, or unique circumstances do not warrant installation of a specific control.

Gas utilities’ linear construction projects often take place under unique circumstances that should be explicitly recognized as a permissible basis for demonstrating the “infeasibility” of specific stormwater controls and the utilization of alternative BMPs. These unique circumstances include: gas utility work within larger construction sites with several other utilities and project operators; work in narrow, confined project corridors and rights

- of

- way such as highways; or, in limited easements on urban or rural private property. If gas utilities could not demonstrate that unique circumstances like a limitedJanuary 17, 2014

Page 8 of 52 construction footprint render certain construction

- phase stormwater controls “infeasible,” they could be held responsible for expanding their work outside project bou ndaries to place controls on adjoining areas to which they have neither access nor ownership rights.
Therefore, AGA urges EPA to clarify how “infeasibility” may be assessed in emergency conditions, on multi

- operator construction sites, or in the many other unique circumstances where gas utilities have a limited, temporary and confined construction footprint.

RESPONSE
EPA does not agree that unique circumstances regarding infeasibility of controls should be describe d in the rulemaking. It is not reasonabl e f or EPA to describe all such instances in the rulemaking. Permitting authorities have flexibility to acknowledge such conditions when developing their permits. See, for example, the EPA ’s 2012 CGP description of coverage for emergency projects at 1.2.1 and 7.3.2 as an example of permit language related to emergency projects . In addition, the infeasibility provision applies only to three requirements in the rule: buffers and directing stormwater to vegetated areas , preservation of topsoil , and surface outlet s. The rule, as written, allows for gas utility projects to demonstrate infeasibility of these provisions, as it allows for all projects. EPA is not expanding the infeasibility provision to additional requirements for gas utility projects.

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COMMENT

AGA members have noted that permitting authorities implementing the NPDES program do not have a universal understanding of why a specific control may be infeasible for a given site or situation, and that the burden is on the permittees to constantly revisit w hat is “infeasible” because the current stormwater permitting regime does not provide sufficient guidance on what EPA might consider “infeasible”. AGA believes our requested clarifications to the definition of “infeasible” will bring needed direction to th e exercise that permittees and permitting authorities undertake to determine “infeasibility”.

RESPONSE
EPA does not agree that additional clarifications regarding infeasibility are necessary. The burden is and will continue to be on the permittee to demons trate infeasibility as the permittee has first

- hand knowledge of their construction projects . EPA has provided sufficient guidance in the final rule’s preamble and record regarding the types of cases where an infeasibility determination may be appropriate

. P ermitting authorities may provide additional information in their permits and may update this information as permits are periodically revised and reissued

.

 

COMMENT

ADOT concurs with AASHTO that while some control measures may be possible, applyin g practicality to the requirement is most beneficial in a desert environment where sediment transport and wind

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Page 9 of 52 dust are very much functions of nature; often dust and sediment are blown into the ADOT rights

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- way from adjacent agricultural and mining lands.

RESPONSE
The infeasibility provision only applies to requirements for buffers and directing stormwater to vegetated areas , top soil preservation , and surface outlets. Wind

- blown dust and sediment transport from adjacent lands that are subsequently discharged by the permittee are the responsibility of the permittee. See above response to AASHTO’s comment re “technologically impractical” instead of “technologically impossible.”

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COMMENT

While many states support and appreciated this important cl arification, a few states expressed concerns regarding the term itself. Those states proposed the term “maximum extent practicable”, which already has a legal foundation and legal history associated with it. States also support EPA providing clarity and

ex amples regarding soil compaction, soil stabilization, and the need to maintain, or not maintain, top soil depending on the construction application.

RESPONSE
EPA appreciates commenter's suggestion that “maximum extent practicable” ( MEP ) be used instead o f the definition of infeasible included in the C&D rule. EPA has determined that the definition in the final rule, which was derived from the CWA, the EPA ’s Mult i

- Sector General Permit ( MSGP )
, and the EPA’s CGP, is an appropriate definition for an effluent guideline where availability of a technology and economic achievability are primary factors in the context of a Best Available Technology Economically Achievable ( BAT ) / New Source Performance Standard ( NSPS ) standard. EPA has provided examples of appropria te practices in the preamble to the proposed rule and in the record that permitting authorities can consult when developing permits. EPA acknowledges commenters' support for EPA providing examples regarding rule requirements.

 

COMMENT
We agree with EPA ’s description contained in the preamble, and we support including a definition of what EPA means by infeasible in the rule to provide clarity and consistency for permittees. However, we do not support EPA’s new definition of infeasible found at 40 CFR 450 .11(b). EPA’s revised definition of infeasible at 40 CFR 450.11(b) is vague and provides a weaker standard than the description of EPA’s intended meaning of infeasible found within the Preamble of the 2009 ELG. The revised definition fails to place the bur den of proving infeasibility on the discharger, as was previously the case, and provides less clarity to State Administrators as to what is “best industry practice.” We respectfully request that EPAJanuary 17, 2014

Page 10 of 52 remove the revised definition of infeasible located at 40 CFR 450.11(b), and replace it with the original explanation of infeasible provided in the preamble of the 2009 Construction ELG.

RESPONSE
EPA disagrees that the definition of infeasible contained in the rule is vague. Although not contained in the definit ion, the burden to prove infeasibility is with the permittee and EPA expects that permittees will document the rationale for claiming infeasibility in their SWPPPs or in other documents . EPA also expects that permitting authorities may include additional d escriptions of instances where an infeasibility determination may be appropriate in their general permits (as EPA did in its 2012 CGP) , and will describe alternative practices that may be appropriate in these cases. See for example the EPA ’s 2012 CGP, whic h describes use of alternative sediment controls in the context of requiring buffers.

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COMMENT
EPA’s proposed definition of the term infeasible is necessary because the ELG did not provide a definition, and the ELG rule language included the term ‘infe asible’. The proposed definition of infeasible is consistent with EPA’s recently issued Construction General Permit.

RESPONSE

EPA appreciates comment in support of and on the necessity of the definition. No further response needed.

 

COMMENT

... the defini tion as proposed does not provide the guidance needed for those who must comply with these regulations.
The two parts to the definition are that complying with a regulation would be infeasible if it is “technically infeasible” or “cost

- prohibitive.” The fi rst of these could be improved by changing it to “technically questionable.”
The second part is clear, but could perhaps be improved by adding the following clarification: “Cost

prohibitive does not mean the mere reduction in profit, but rather an economic burden so high that a project cannot be undertaken without losing money.”

RESPONSE
EPA does not agree that the definition of infeasible fails to provide the necessary guidance for compliance. EPA has provided examples of cases where the requirements with an infeasibility provision may be appropriate in the preamble to the proposed rule and in the record (see for example discussion of cases where preserving topsoil may be infeasible and cases where stabilization may be infeasible, atJanuary 17, 2014

Page 11 of 52 78 FR 19439; ) . EPA als o does not agree with suggested edits to the definition of infeasible. "Technically questionable" is a lower standard than "not technologically possible , " which is the standard in the final rule. "Technically questionable" is also a vague and subjective st andard. EPA also does not agree with the comment to add a cost

- prohibitive description to the definition of infeasible. Economically practicable and achievable is the appropriate terminology, which is derived from the CWA and EPA ’s MSGP and CGP.

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COMM ENT
The rulemaking’s preamble mentions “site specific constraints” relative to infeasibility. The definition doesn’t address the situation faced where compliance (e.g., infiltration under inappropriate conditions) could actually backfire and be detrimental to the receiving water. It should say: “Infeasible means not technologically possible, or not economically practicable and achievable in light of best industry practices, or where compliance would have detrimental effects.”

RESPONSE
EPA does not agree tha t the definition of infeasible should include a term related to compliance having detrimental effects with respect to infiltration. The requirement at 450.21(a)(6) states that infiltration should be maximized in order to reduce pollutant discharges. If suc h a case were to exist whereby infiltration would be detrimental with respect to pollutant discharges, such as where contaminated soils exist, then this would be a reasonable exemption for permitting authorities to allow for that particular

case since in t hat instance, infiltration would not result in maximizing pollutant discharges . However, these cases are best handled on a site

- specific basis through consultation with the permitting authority rather that attempting to define all of these cases in advance . EPA expects that infiltration of
stormwater will be appropriate and w ill reduce pollutant discharges on the vast majority of construction sites.

 

COMMENT
However, the text proposed differs from the text found in the preamble to the C&D rule in a way that appears to employ a lower standard while failing to clarify the intent.
EPA proposes to alter this definition by stating that “[i]nfeasible means not technologically possible, or not economically practicable and achievable in light of best industry pr actices.” EPA’s initial description of infeasible being cost prohibitive would be a higher standard than “not economically practicable.” The City therefore urges that EPA continue to use the language of found in the 2009 preamble.
Additionally, EPA introdu ces ambiguity into the definition by also stating that “infeasible” includes items not “achievable in light of best industry practices.” This condition is not defined and could be overly broad. Again, the proposed change would establish a lower standard th an “cost prohibitive.” In order toJanuary 17, 2014

Page 12 of 52 be more protective of water quality, it is suggested that this reference to “best industry practices” be eliminated from the definition.

RESPONSE
EPA disagrees with this comment . Economically practicable and achievable is the appropriate terminology for this definition , which is derived from the CWA and EPA ’s MSGP and CGP. Also, the inclusion of "best industry practice" recognizes that effluent limitations guidelines are technology based, and are based on the performance o f the best available technology economically achievable and the best demonstrated available control technologies for new sources. Therefore, it is appropriate and consistent with the CWA to reference best industry practices in the context of the definition of infeasible.

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COMMENT
PADEP is strongly opposed to this addition. This term, as introduced in the ELG Rule, creates an opportunity for the regulated community to petition or EPA or delegated state programs for their regulatory requirements to be rel ieved. State programs such as PADEP's, have no mechanism prescribed in existing regulations to allow them to do so. Not only does PADEP oppose inclusion of the definition itself, we are also strongly opposed to its use in all instances throughout the rule. Permitting the regulated community to use the term "infeasible" as justification to not follow federal or state requirements specifically based on conditions of a project being "not economically practical" is not acceptable in Pennsylvania nor is it accep table under the Clean Water Act especially for proposed discharges to special resource waters, impaired waters, or impaired waters with approved TMDLs. PADEP's Manual provides the regulated community with a suite of BMPs available to address the universe o f possible site conditions found within the Commonwealth with regard to earth disturbance projects. In addition, potential operators of construction or development activities may propose alternative design standards or BMPs which demonstrate that the alter nate BMP or design standard minimizes accelerated erosion and sedimentation during and after the completion of earth disturbance activities to achieve the regulatory standards. Further, there is such a variety of options available to the regulated communit y that there should rarely be a situation that would present a "not technologically possible" project, and in the unlikely event that it does occur, then the site conditions may represent a project which is not be suitable for the construction or developme nt activity. The proposed addition of "not economically feasible" leaves the regulated community with an ambiguous argument or expectation that implementation of BMPs at any project will cost too much to meet these federal or state regulatory requirements. Finally, PADEP does not currently have staff with the expertise to evaluate a claim of economic infeasibility, and inclusion of such a provision in the regulation would present significant administrative and legal challenges. In the alternative, PADEP sug gests EPA instead consider use of the term "to the maximum extent practicable" as this is a term of art that is used in other NPDES permitting contexts.January 17, 2014

Page 13 of 52 • The term "technologically possible" does not appear to be necessary in the proposed requirement. The realm of "possible" practices and technologies available for the effective management of construction site runoff is not expected to be the limiting factor in determination as to whether or not meeting one of the requirements is "infeasible." The cost of i mplementing certain practices and technologies, or combinations thereof, is expected to be the lead determination of "infeasible." More succinctly: technologies that are not technologically possible are de facto not economically practicable and achievable. • The terms "practicable" and "achievable" are synonymous and redundant. The requirement should be revised to include the phrase "economically practicable" or "economically achievable" and a clear definition of the phrase should be provided. • The propose d requirement includes the phase "best industry practices"; however, the definition of this phrase is not provided in proposed amendments or in the 2009 Final Rule. Additionally, it is unclear as to what "industry" this term is referring (i.e., the C&D ind ustry, the storm water industry, etc.). EPA should also recognize that "best industry practices" in one geographic region may be very different than those in another geographic region because of climate, slopes, soils, and many other site

- specific factors.

The requirement in the 2009 Final Rule indicated that "[t]he burden is on the permittee to demonstrate to the permitting authority that the requirement is infeasible." However, this phrase has been omitted in the proposed requirement and it is unclear wh ether the burden is still on the permittee. Additionally, it is recommended that example scenarios or guidance for the determination of "infeasible" be provided for each of the existing and proposed requirements to which this term applies.

RESPONSE

EPA ap preciates the comment regarding applicability of the "unless infeasible" language and the potential burden associated with implementing this requirement. EPA has addressed this concern by applying the "unless infeasible" criteria only to a limited subset o f the requirements contained in the rule

-- it applies to only three and does not apply to the remaining rule requirements. Specifically, this language only applies to buffers and infiltration of stormwater , preserving topsoil , and the use of surface outle ts. EPA recognizes that these requirements require additional consideration since EPA expects that there will be limited circumstances where these requirements would not be technologically feasible on a specific construction site or where their use would n ot be economically practicable. In the case of buffers, it may be impossible to maintain a vegetated buffer on a site that is building a port, since the port would be directly adjacent to the waterbody. If there were not exemptions provided from the buffer requirement, then it would be impossible to build the port adjacent to the water body. In the case of preserving topsoil, it may be infeasible to preserve topsoil on a project that constructs a parking lot that consumes the entire footprint of disturbance since there would be nowhere to place the preserved topsoil on

- site. Use of the topsoil off

- site would be a more appropriate practice. In the case of surface outlets, it may be infeasible to utilize a surface outlet such as a skimmer on a project during
p eriods of time when the surface of the basin is frozen. Therefore, EPA has determined that an "unless infeasible" provision is necessary and appropriate for these requirements in such limited cases. This requirement also does not preclude the permitting au thority from specifying alternative or additional BMPs to be implemented in cases, for example, where a buffer is not possible or not economically practicable and achievable , as EPA did in its 2012 CGP

. For example, the permitting authority mayJanuary 17, 2014

Page 14 of 52 require the use of additional perimeter controls, such as filter berms, adjacent to the water body in these cases. EPA agrees that the nature of construction activity allows for alternative controls to be utilized where a specific control cannot be, and that some deg ree of flexibility is needed for these specific control measures

. EPA asserts that the adoption of the “unless infeasible” language is not in conflict with the state’s use of

a BMP manual to define standards for stormwat er practices. EPA emphasizes that t he “unless infeasible” language is only used in the regulation in connection with the requirements for providing natural buffers and directing stormwater to vegetated areas, preserving topsoil, and designing surface outlet structures for sediment basins a nd impoundments. It is not clear from the comment whether the state ’s BMP manual includes standards for these same practices. However, assuming that it does, the state’s adoption of specific requirements covering these practices is the equivalent of the state defining what is considered to be technologically possible, or economically practicable and achievable in light of best industry practice

. Therefore, where a BMP manual defines , for example, where and under what conditions natural buffers must be pr ovided during construction , this should be viewed as consistent with EPA’s requirement in 40 CFR 450.21(a)(6) to provide and maintain natural buffers around waters of the U.S., unless infeasible. At the same time, where a BMP manual define s circumstances under which providing a natural buffer is not necessary or feasible, the manual would be providing sites with the equivalent of the “unless infeasible” flexibility in the regulations.

EPA also does not agree that economic practicability cannot be utiliz ed in the context of an effluent guideline. Indeed, economically achievability (and by extension practicability) is an integral part of a BAT determination. While EPA agrees that special considerations may be appropriate for discharges to impaired waters, special resource waters or waters with TMDLs, there are other requirements (such as Section 404 permits) for construction in or adjacent to waters of the United States and water quality

based effluent limit ation s to meet water quality standards that addres s such situations . The effluent guideline ’s technology

- based provisions, as incorporated into permits, constitute only one layer in the array of programs that address construction activities and their impact on water quality

. EPA disagrees with the comment suggesting that the term "not technologically possible" is unnecessary in the definition of infeasible. As described above, it may not be technologically possible to preserve a natural buffer on a port construction project because the port would be immedi ately adjacent to the water body. While EPA acknowledges that a requirement that is not technologically possible is likely also not economically practicable or achievable, both standards are nonetheless necessary in the definition of infeasible since they may be applied independently.
While EPA acknowledges that the terms practicable and achievable are related, EPA does not agree that the terms are synonymous and redundant.
EPA has not provided a definition of what constitutes "best industry practice" bec ause what constitutes best industry practice is likely to change over time as the construction industry develops new and revised management practices and as construction practices change . EPA agrees with commenter that best industry practice may vary geogr aphically or based on other factors. EPA does mean the construction and land development industry in the context of this rule.January 17, 2014

Page 15 of 52 EPA has not stated in the rule that the burden is on the permittee to demonstrate infeasibility, but EPA does expect that permit tees will need to provide documentation or some rationale as to why a specific provision is infeasible in SWPPPs or other documents. Permitting authorities would then have the ability to determine if the infeasibility claim being made by the permittee is a ppropriate.

 

COMMENT
The sentence "The burden is on the permittee to demonstrate to the permitting authority that the requirement is infeasible." which was included in the definition of infeasible in the preamble was omitted from the definition in the rule. The omission of this sentence does not follow through with the intent of putting the burden of proof on the permittee to show that a requirement is not technologically possible or economically practicable. With the proposed definition, the burden of proof would fall on the permitting authority to prove if a requirement is not technologically possible or economically practicable and achievable in the case of an enforcement action. This would be a very large burden on permitting authorities and seems co ntradictory of the intent of the definition in the preamble.

RESPONSE
EPA has not stated in the rule that the burden is on the permittee to demonstrate infeasibility, but EPA does expect that permittees will need to provide documentation or some rationale as to why a specific provision is infeasible in SWPPPs or other documents. EPA does not agree that not having this stated in the definition means that the burden is on the permitting authority. EPA expects that permitting authorities will include appropri ate language in their permits or alternative BMPs to be implemented in cases of infeasibility. But the ultimate burden on proving infeasibility is on the permittee.

** **

COMMENT
As a threshold matter, Spectra suggests that the "infeasible" definition shou ld be applied globally, such that none of the controls permittees must implement would be required where they are infeasible under EPA's proposed definition.

RESPONSE

EPA does not agree that the "unless infeasible" criteria should be applied more broadly . As described previously, EPA has limited this criteri on to three such appropriate requirements. See responses to comments above.January 17, 2014

Page 16 of 52 Comments on 450.21(a)(1)
450.21(a)(1) Control stormwater volume and velocity to minimize soil erosion in order to minimiz e pollutant discharges;

COMMENT
AASHTO agrees with linking this provision to the control of pollutant discharges from the site. Although site runoff volume and velocity may influence the erosion of soils, these are only two of many variables, such as land cover, conveyance type, land slope, soil type, rainfall intensity, and drainage area that impact soil erosion. In many cases, stormwater volume and velocity may not contribute or may not be the primary contributor to pollutant discharge. Further, accepted industry practice is to focus on
stormwater management rather than control . As such, AASHTO recommends deleting “volume and velocity” and adding the more general term “manage stormwater” so the language would state:
Manage stormwater to minimize soil erosi on in order to minimize pollutant discharges.

RESPONSE:
EPA agrees that there are many factors that influence erosion of soils. However, EPA disagrees with th e comment that the "volume and velocity" term should be omitted from the final rule . Erosion and

a ssociated transport and discharge of eroded sediment are affected by both the total volume of stormwater as well as the velocity of the stormwater. This is due to increases in flow duration resulting from the increased runoff volumes , as well as the increa se in peak flowrates th at result when vegetation is removed and soil is compacted during construction . By requiring permittees to manage both total volumes as well as velocity of flows, reductions in both the magnitude and duration of erosive flows are

acc omplished. Keeping this provision as is allows permitting authorities to develop appropriate volume tric standards and incorporate those requirements into permits. EPA appreciates commenters ' distinction between the words “manage” and “control”, but EPA doe s not see the distinction in this case. Both words, in the context of this requirement, compel the permittee to take action, in the form of installing practices or designing site attributes, to address erosion due to flowing water. This translates into co ntrol of the discharge, which is appropriate since EPA is establishing best practicable control technologies, best conventional pollutant control technologies, best available control technologies and new source performance standards through this effluent g uidelines rulemaking. Therefore, EPA is not incorporating the suggested language change into the final rule.

 

COMMENT
EPA suggests eliminating the “within the site” language in 40 C.F.R. § 450.21(a)(1), a provision which requires permittees to control stormwater volume and velocity to minimize erosion

. Without this “within the site language,” gas utilities may be held responsible for installing controls beyond the corridor of their limited, temporary earth

- disturbing activities if they were not able to demonstrate “infeasibility” on the basis of site

- specific, unique circumstances.January 17, 2014

Page 17 of 52 RESPONSE:
EPA notes that the "within the site" language is not necessary for this provision, since by definition this regulation applies to stormwater discharges that are disc harged from the construction site to waters of the U.S . All pollutant discharges within the meaning of EPA’s requirement originate from the construction and /or land disturbing activities occurring within the site, or are caused by discharges leaving the si te (such as a discharge from a pipe outlet causing erosion in the immediate vicinity of the point of release from the outlet ). EPA does not agree with the implicit suggestion by the commenter that installation of controls "beyond the corridor of their limi ted, temporary earth disturbing activities" may not be required by permitting authorities. Indeed, installation of down

- slope controls may be necessary in some cases if upslope controls are not feasible, such as due to limited space , and such down

- slope co ntrols are necessary to control the discharge of pollutants from the site to waters of the U.S . Infeasibility of installing a particular control does not absolve the permittee of responsibility to control their discharges overall . Rather, the permittee is required to design, install and maintain appropriate controls to manage their discharges. As noted by the Pennsylvania Department of Environmental Protection (PADEP) in comments, the inherent flexibility in construction site stormwater controls means that if a permittee is unable to implement a particular control due to a site

- specific consideration, there are generally alternative controls that can be implemented. After all, the permittee is undertaking construction activities, and has the ability to desig n and construct appropriate controls with consideration of any constraints or to utilize activities, such as phasing of land disturbance, to address constraints that may arise during construction. If not, as noted by PADEP, then perhaps a given constructio n activity should not be permitted to take place if the permittee is unable to manage its discharges. Site

- specific constraints may increase costs for a particular project, but generally do not mean that it is infeasible to control stormwater and associate d pollutant discharges. These site

- specific considerations can be addressed in permit applications and SWPP P s and through consultation with the relevant permitting authority.

EPA notes that it has included appropriate flexibility for the limited number of requirements (i.e., buffers and infiltration, preserving topsoil , and surface outlets) where there may be site

- specific constrains such that a given requirement could be deemed infeasible. Commenter seems to believe that the infeasibility provision applie s more broadly. It does not. The infeasibility provision only applies to three requirements: buffers and infiltration of stormwater, topsoil preservation , and the use of surface outlets.

** **

COMMENT
While the stated intent is to “link” the control of soil erosion to the discharge of pollutants, the wording could still be seen as ambiguous.
One could interpret the requirement as either applying to (1) any soil erosion that may lead to a greater discharge of pollutants from the entire site, or (2) only erosi on where the erosion itself contributes additional pollutants to the discharge from the site. The difference is important. The first interpretationJanuary 17, 2014

Page 18 of 52 allows permitting authorities to control storm water to minimize soil erosion at any location which may incr ease overall pollutant discharge from the site as a whole. The second only allows authorities to require controls when erosion from that particular area would contribute its own pollutants to the site’s discharges. The EPA’s own clarification of the requir ement seems to lend itself to the latter.
This potential interpretation would exempt soil erosion controls from areas which may not contribute additional pollutants, but may still reduce the effectiveness of controls in other areas of the site. Further, if erosion control is limited to those areas where pollutant discharge is predicted, fewer areas of the site will have such controls. Therefore when unforeseen severe weather events occur, greater amounts of pollutants will be discharged into waterways than would have had erosion controls been implemented at all areas of the site.
While cost is of primary concern for the industry, it must be noted that the “best practicable technology” (BPT) standard is being applied. 4 Therefore, a cost

- benefit analysis is al ready applied to all provisions subject to revision which will account for undue or overly burdensome costs to the industry.

RESPONSE:
EPA does not see the distinction between the two cases described by commenter. The rule requirement, as written and final ized, requires permittees to control stormwater volume and velocity to minimize erosion and subsequent pollutant discharges. The requirement applies to all areas of the site where water flows and can erode soil that is subsequently discharged.

EPA does not agree that a BPT standard means that a cost

- benefit analysis has been applied. See relevant discussion of BPT in the preamble to the rule.

 

COMMENT
This is too prescriptive. There are certainly other means to control erosion to minimize pollutant disc harge without controlling volume and velocity. Language should be rewritten as “Control soil erosion in order to minimize pollutant discharges,” or “Control erosion for flow rates, volumes and velocities expected during construction to minimize pollutant d ischarge.”

RESPONSE:
EPA agrees that there are other means to control soil erosion to minimize pollutant discharge, and indeed the rule does contain such requirements (for example, the soil stabilization requirements). However, EPA does not agree that the requirement at 450.21(a)(1) is too prescriptive. This provision specifically addresses erosion caused by, for example, high flow rates and increases in flow duration resulting from the increased volume of runoff that may result at a construction site follo wing alteration of site conditions (such as removal of vegetation and compaction of soil). Therefore, EPA does not agree that this requirement is too prescriptive, and instead finds this requirement to be a necessary component of stormwater management at c onstruction sites. See the numerous studies in the recordJanuary 17, 2014

Page 19 of 52 for the 2009 final rule describing increases in soil erosion due to flowing water over disturbed soil areas and in conveyances as evidence for the need for such a requirement. Also see the supplemen tal information contained in the 2009 final rule docket (EPA

- HQ

- OW

- 2008

- 0465

- 2124 through 2134) and the revised comment response document for the 2009 final rule (EPA

- HQ

- OW

- 2008

- 0465

- 2135).

** **

COMMENT
At the same time we disagree with certain aspects of the description found in the preamble. NAHB believes that EPA’s previous regulatory language exceeded its authority because the Agency only has authority over discharges of pollutants; it may not regulate the internal processes of a facility. By requiring operators to control erosion within the site the Agency was regulating the internal process of a construction site. The new regulatory language prevents the agency from exceeding its statutory authority by tying the control of volume and velocity to actual discharges.
Overland flow that has not been channelized is simply sheet flow, and does not fall within EPA’s section 301 authority.

RESPONSE:

EPA does not agree that the EPA lacks authority to promulgate non

- numeric effluent limitations that regulate inte rnal processes at construction sites in order to control and minimize the discharge of pollutants to surface waters. See the discussion in the preamble for references to case law on this topic.
EPA does not agree that all overland flow is sheet flow. Overl and flow in the context of a construction site is generally water that runs across disturbed land after rainfall (although overland flow can also occur on a construction site where water pumped from dewaterating activities, groundwater that emerges from th e ground on a cut slope , or where a discharge or seepage through berms or sediment controls flows over land). Sheet flow is a subset of overland flow, specifically overland flow that is not concentrated into channels larger than rills. But such f low can be and is concentrated into rills and channels as flow velocity increases

- this flow is still overland (e.g., not in a pipe) and is no longer sheet flow , but rather is a pollutant discharge from a point source . Therefore, EPA may regulate such discharge und er the CWA

.

 

C OMMENT
... focus on volume control in terms of volume reduction

- for the purposes of minimizing erosion during the construction phase is not commonly a primary design objective in the development of a SWPPP. Additionally, in some cases minim ization of infiltration is essential for construction (e.g., for slope stability or during retaining wall construction). Furthermore, dewatering is a necessary part of many construction projectsJanuary 17, 2014

Page 20 of 52 EPA provided references to the Virginia Erosion and Sediment Control Handbook and in last paragraph of Section II.B.2.a. provides a hypothetical example that includes the conclusive statement "[t]herefore, reducing the volume and velocity of stormwater, which reduces the amount of erosion, can directly reduce the qu antity of sediment and associated pollutants that are discharged." It is recommended that EPA provide studies in support of this recommendation rather than references to state or non

- EPA guidance documents and hypothetical scenarios.

RESPONSE:
EPA disagre es that control of volume is not a primary consideration of construction activities in order to minimize pollutant discharges. Indeed, it is common industry practice to install sediment basins downslope of large disturbed areas due to the increased volume of stormwater produced. During construction, removal of vegetation and compaction of soil typically result s in an increase in runoff volumes because interception of precipitation by vegetation and capture and infiltration of precipitation is reduced due t o soil compaction and changes in soil structure, such as removal of organic material. This increased runoff volume results in increased flow rates as water flows concentrate downslope. Therefore, channels and other conveyances, as well as storage practices such as sediment basins, must be designed with consideration of factors such as increased runoff volumes and velocity of stormwater

. Otherwise, the increased volume, flow rates and duration of elevated flows can cause significantly increased rates of eros ion and subsequent discharge of pollutants. As a result, EPA's inclusion of requirements to control runoff volume and velocity is appropriate and reflective of BAT and BDACT.
See the docket for the 2009 final rule for numerous studies indicating the relati onship between increased erosion and increased pollutant discharge from construction sites, and the effectiveness of various practices in removing sediment and other pollutants from construction site stormwater. Many of these studies are described and refe renced in Chapter 7 of the TDD.

** **

COMMENT

When the sites are inspected by SDDENR personnel, evidence of soil erosion is examined on the site, not the volume and velocity of the runoff that caused the soil erosion. It is difficult to quantify the volume and velocity from one event to another, especially after the fact. This would put a burden on the permitting authority to prove if volume and velocity was properly controlled on a site, which would be very difficult to prove.

Also, SDDENR has no authorit y over drainage. The drainage laws in South Dakota require drainage to be regulated at the local level, so SDDENR would have a difficult time enforcing violations of this rule. Removing the phrase "within the site" could lead to interpretations of the rule that could make permittees responsible for waters down gradient of their site where the site storm water discharge has intermingled with other storm water. Removing the phrase "within the site" would create ambiguity as to what the permittee is responsibl e for.January 17, 2014

Page 21 of 52 RESPONSE:
EPA's regulation does not require quantifying the volume and velocity of runoff from one event to the other. Rather, the controls implemented at the site must be designed, installed and maintained with consideration of these factors. Eval uation of designs and sizing of practices in SWPPPs is one example of a way in which permitting authorities may determine if consideration of volume and velocity of flows has been accomplished. Also, evidence of insufficient control of volume and velocity could be established during inspections, considering factors such as erosion in channels and on slopes, sediment discharge downslope of the construction site, evidence of flows bypassing sediment controls, etc. Thus, commenters' statement that inspectors l ook for evidence of soil erosion is directly related to determining if volume and velocity of stormwater has been addressed. Evidence of erosion in channels, erosion on slopes, and deposition of sediment in receiving waters would be examples of instances o f where volume and velocity of stormwater may not be adequately controlled.
As to authority over drainage, implementation of this requirement does not require such authority. As described above, consideration of designs in SWPPPs as well as inspection of c onstruction sites can be used to determine if the permittee is adequately controlling volume and velocity of stormwater. This requirement also meshes with the requirement at 450.21(a)(2), minimization of channel and stream bank erosion in the immediate vic inity of discharge points , as well as 450.21(a)(6) with respect to maximizing stormwater infiltration. With respect to channel and stream bank erosion, design of up

slope conveyance and storage practices is a critical element of managing the peak flow rate and flow duration of discharges. With respect to maximizing stormwater infiltration, consideration of what flows can be directed to vegetated areas to allow for infiltration is also a critical design element. Proper implementation of these three regulator y requirements at 450.21(a)(1), (a)(2) and (a)(6) will require consideration of site topography, the timing of land disturbances, and the quantity, flow rate and duration of flows, as well as other factors, likely to be encountered during the period of con struction activity.
As described earlier, removal of the "within the site" language does not cause ambiguity because the rule by definition applies to the construction activity and the discharges from the construction activity. C onsideration of how the dis charges from construction sites combine with receiving water flows and potentially contribute to downstream impacts is an important consideration for permittees and permitting authorities when designing controls for construction sites in the context of ach ieving water quality standards and the antidegradation provisions of the Clean Water Act.

 

COMMENT

Industry petitioners have argued

– and AGC supports the finding

– that the current C&D ELG text at 450.21(a)(1) exceeds EPA’s authority because the Agen cy only has authority over discharges of pollutants; it may not regulate the internal processes of a facility

. By requiring operators to control erosion within the site, EPA is in effect regulating the internal process of a construction site. The newJanuary 17, 2014

Page 22 of 52 regul atory language keeps the Agency from exceeding its authority by tying to the control of volume and velocity to actual discharges.

RESPONSE:
See earlier response regarding EPA's authority to promulgate effluent limitations that regulate internal
processes at construction sites in order to control and minimize the discharge of pollutants to surface
waters.January 17, 2014

Page 23 of 52 Comments on 450.21(a)(2)
450.21(a)(2) Control stormwater discharges, including both peak flowrates and total stormwater volume, to minimize channel and s treambank erosion and scour in the immediate vicinity of discharge points;

COMMENT
AASHTO supports the clarification of permittee responsibility for erosion only in the “immediate vicinity of discharge points.” Many stream systems are subject to general sc our (lowering of the streambed over long reaches due to head cuts and changes in hydrology controls) due to urbanization in the watershed or other alterations that can cause hydromodification, such as manmade reservoirs. To clarify that this proposed langu age would not hold permittees responsible for general scour, AASHTO recommends that erosion at storm drain outfalls be more accurately characterized as “local scour” (scour that occurs at local erosion control devices) rather than channel and stream bank e rosion, which are normally discussed in the context of general scour. In addition, controlling local scour is generally not related to volume control and may not relate to peak flow. Accordingly, AASHTO proposes that the language be revised to read:

Manage stormwater discharges to minimize local scour in the immediate vicinity of discharge points.

R ESPONSE :
This requirement as proposed requires control of stormwater discharges to minimize channel and streambank erosion in the immediate vicinity of discharge points. Commenter requests that EPA change this requirement to use the term "local scour" as opposed to "channel and streambank erosion. " Commenters' reason was that local scour represents erosion that occurs at storm drain outfalls, and not erosion that occurs as a result of upstream changes in watershed hydrology.
EPA notes that the requirement at 450.21(a)(2) is complementary to the requirement at 450.21(a)(1). The requirement at 450.21(a)(1) addresses erosion occurring within the site that leads to a discharge of pollutants. This would include erosion in channels and conveyances downslope of sediment basins or where a slope drain empties into a conveyance channel, for example, but prior to the discharge point. Erosion at these locations would mobilize additional sediment that would be discharged from the site absent additional sediment controls downslope (or to state this in another manner, a sediment control device would be needed downslope of a sediment basin if the water flowing out of the sediment b asin caused erosion prior to being discharged fr o m the site. This illustrates the need for proper management of flows in order to eliminate re

- introduction of pollutants prior to discharge). The requirement at 450.21(a)(2) addresses erosion in the receivin g water body ’s channel or streambank in the immediate vicinity of the discharge point. This requirement is intended to control erosion that may occur if factors including peak flowrates and total stormwater volume of discharge s from the site are not proper ly managed, or if discharges are introduced into the receiving water in such a manner or in such a quantity as to cause destabilization and /or erosion in the receiving water ’s channel or streambank . It would make little sense to remove pollutants from stor mwater from a construction site prior to discharge only toJanuary 17, 2014

Page 24 of 52 discharge that water in to the receiving water in such as manner as to cause erosion and mobilization of pollutants in or next to the receiving water. While EPA does not disagree that local scour ma y be an appropriate term of art in certain areas of the construction industry (for example, amongst transportation agencies)
, the term "local scour" is not as encompassing as the term "channel and streambank erosion in the immediate vicinity of discharge p oints" that was proposed. However, in order to provide consistency with what may be common industry usage amongst transportation agencies for one aspect of this requirement, EPA has revised the final rule requirement to incorporate the phrase

" and scour". The final rule requirement states that discharges must be controlled "to minimize channel and streambank erosion and scour in the immediate vicinity of discharge points." Addition of "and scour" also addresse s discharges to other waters that are not stream s, such as lakes, that do not have channels and streambanks. It was EPA's intent that this requirement limit erosion of soils in and next to all receiving waters, not just waters with channels and streambanks.

** **

COMMENT
By specifying "in the immediate v icinity" EPA is intending the provision to apply only to stream bank erosion that would be caused solely by the discharge and not by upstream flow. But even with this provision there is no assurance that erosion near the discharge point is solely caused by the discharge; in fact the imposed control measures may have no effect whatsoever on stream bank erosion if the upstream water velocity is sufficiently high. Effluent guidelines are technology

- based standards that regulate pollutants in the discharge, not the receiving stream, and regulate them based on the performance of technologies alone.
Dictating Channel and Stream Bank Erosion on a national basis can lead to many redundant and unnecessary requirements with little to no beneficial outcomes. Additional ly, duplicate regulation leads to inefficient use of already strained public resources.
API recommends this provision be deleted altogether as duplicative, unnecessary, and not consistent with the purpose and objective of effluent guidelines.

R ESPONSE :

EPA disagrees that the provision to limit erosion in the immediate vicinity of discharge points should be deleted. It makes little sense to remove pollutants in practices such as sediment basins only to create

more pollutants by discharging erosive flows to t he receiving water. Indeed, this provision is intended to limit the discharge of pollutants from the site to waters of the U.S. caused by erosive flows and is therefore within EPA's authority. Also, commenter states that there is no assurance that erosion near the discharge is caused solely by the discharge and that controls implemented may have no effect on stream bank erosion if the upstream water velocity is sufficiently high. EPA agrees that upstream flows can also contribute to erosion in the immediate vicinity of the discharge point. However, EPA's requirement is not to eliminate any and all erosion , over which the permittee may not have full control, but rather to minimize erosion , which the permittee does have control over . Also, EPA notes that theJanuary 17, 2014

Page 25 of 52 e ffect of implementing practices such as sediment basins to remove pollutants may result in discharges from construction sites occurring over a much longer duration, since these practices are often designed to drain over a period of 12 to 24 hours. During t his timeframe, it is likely that flows in the receiving
water may have receded as the hydrograph declines. Therefore, flows from the construction site, where drawn out due to the effect of detention structures, can be discharged long after upstream flows h ave become non

- erosive. I mplementation of controls to minimize erosion in and next to the receiving water in the immediate vicinity of discharge points would reduc e erosion in these instances. For all of these

reasons , it is appropriate for EPA to include this requirement in the final rule.
EPA does not agree that this provision will lead to redundant and unnecessary requirements with little to no beneficial outcomes or will lead to inefficient use of public resources. EPA has determined that this provision is an important component of comprehensive erosion and sediment control at construction sites in order to minimize pollutant discharge s to waters of the U.S. due to the effects of erosive discharges.

 

COMMENT
While it could be argued that the ambiguou s language in the original statute placed an unfair burden on the permittees, the newly proposed language is far from a fair compromise in light of the best interests of the environment. The revised statute does much more than simply clarify that permittee s need not “address streambank and channel erosion caused by other sources,” which the EPA offers as a primary reason for the revision. There is no need for the language to be so limited. A broader scope that at least entertains the possibility of imposing downstream liability on a permittee would be more appropriate here, no matter how remote the possibility that it would be imposed in any given case.

RESPONSE
While EPA understands that some would find a requirement to also include downstream erosion envir onmentally beneficial, it is more appropriate to consider downstream erosion on a site

- specific water quality basis than in this nationally applicable, technology

- based rule.
However, EPA recognizes that additional parameters beyond peak flowrates and tota l stormwater volume, such as flow duration, can also be important metrics for evaluating changes in receiving water erosion due to discharges from construction activity. EPA is not including additional metrics in the final rule, but the final rule language does not prohibit permitting authorities from including additional metrics, such as flow duration, recognizing the unique receiving water geomorphologic charact eristics within their permitted areas and the contribution to changes in receiving water erosio n that may result from construction activities.

** **

COMMENTJanuary 17, 2014

Page 26 of 52 ... the ADOT municipal separate storm sewer system, managed in part by a state

- issued pollutant discharge elimination system permit, relies heavily upon reduction of scour in the immediate vicinit y of drainage structures to maintain the highway infrastructure and has little to no influence on adjacent land use practices. Without consideration of downstream channel and stream bank erosion processes in designing appropriate drainage features, ADOT co uld face potential realignments and increased maintenance costs to preserve pass through systems. Therefore, this reiterates the need to include the requirement as a design consideration.

RESPONSE
EPA agrees that consideration of downstream channel and st ream bank erosion processes is important in designing drainage features. While the C&D rule regulates discharge s of pollutants from construction activities, it is not intended to address the design of what is being built or to factors unrelated to the disc harge of pollutants to waters of the U.S. Therefore, while appropriate from a design perspective, consideration of drainage features outside of the active construction period is ou tside of the scope of this rule.

 

COMMENT
However, AAR is concerned rega rding ambiguity and potential technical infeasibility with respect to the language, “Control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize channel and streambank erosion . . .” AAR’s concern is that stormwat er volume is not easily controlled, and for linear projects such as transportation projects, options to control peak flow rates and total volumes are limited or in some cases not available. Engineering design and safety criteria within what is often a narr ow right of way which may include operating trains provides constraints to peak flow and volume control. Further, AAR is concerned that the language requiring control of volume is ambiguous and may be read as if EPA is requiring a reduction in volume, whic h is not possible for most construction sites and therefore outside of the appropriate scope of 33 U.S.C. §§ 1311, 1314, and 1316.
AAR has the same concerns to the extent that ‘control of stormwater volume and velocity’ is not defined and may be construed as requiring reductions in stormwater volume unachievable at most construction sites and in peak flow and volume unachievable for most linear transportation construction projects.

RESPONSE
While volume reduction is one possible means of controlling stormwa ter volume and velocity to minimize soil erosion, it is not the only means. Other means include detention, dispersion, energy dissipation and flow duration control. EPA recognizes that linear construction projects have constraints that do not exist on othe r types of construction projects. EPA expects that permitting authorities will include appropriate considerations for linear projects in their permits and guidance manuals with respect to control of volume and velocity to minimize soil erosion, and for con trolling peak flowrates and total volume to minimize erosion in the immediate vicinity of discharge points.January 17, 2014

Page 27 of 52 ** **

COMMENT
Importantly, this revision removes responsibility from the discharger to ensure that sediment discharges shall not result in downstream impacts. It is foreseeable that erosion controls at the discharge point could reduce impacts in the immediate vicinity (e.g. placement of riprap below the outfall) yet could still discharge a significant volume of sediment, resulting in a number of geomor phologic changes downstream. We urge EPA to continue requiring dischargers to be responsible for sediment discharges that impact downstream beneficial uses by removing the language “in the immediate vicinity of discharge points,” and retaining the original language in 40 CFR 450.21(a)(2).

RESPONSE
While EPA understands that some would find a requirement to also include downstream erosion environmentally beneficial, it is more appropriate to consider downstream erosion and sediment impacts on a site

- specific water quality basis than in this nationally applicable, technology

- based rule.

 

COMMENT
While it seems fair to limit the responsibility of permit holders to streambank erosion around the “immediate vicinity” of discharge points, this requirement runs contrary to the purpose and provisions of the CWA.
§ 302(a) of the CWA states that “[w]henever... discharges of pollutants from a point source or group of point sources... would interfere with the attainment or maintenance of the water quality in a specific
p ortion of the navigable waters.... effluent limitations... for such point source or sources shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality.” This holds true for nontoxic pollutants unl ess, per § 302(b)(A), “the applicant demonstrates... there is no reasonable relationship between economic and social costs and the benefits to be obtained... from achieving such limitations.” Limitations are to be determined from the point of view of maintaini ng the water quality of our nation’s navigable waters. Limitations are not to be determined by ensuring each permit holder’s responsibilities are equal. If a particular waterway is impacted by multiple permit holders, the controls imposed on those holders should and must be different than situations where a waterway is impacted by only a single permit holder. The cumulative impact needs to be assessed and accounted for.
As proposed, the C&D rule would eliminate any responsibility on the permit holder to mit igate damage the holder causes to the waterway, provided the damage occurs at some distance from the point of discharge. If an upstream site is causing increased erosion and discharge further downstream, any downstream site must take this into account in i mplementing their own controls. Otherwise it creates the untenable situation where a waterway can be destroyed with no one held accountable. Worse, scenarios can be envisioned where a permit holder would be in a position to easily and cheaply prevent damag e,January 17, 2014

Page 28 of 52 but is absolved from having to do so. If the purpose of the revision is to save a permit holder from liability for discharges of unrelated upstream activity, then the rule should be worded to eliminate responsibility for upstream erosion but maintain re sponsibility for all downstream erosion.

RESPONSE
While EPA understands that some would find a requirement to also include downstream erosion or consideration of downstream impacts from construction environmentally beneficial, it is more appropriate to con sider downstream erosion and sediment impacts on a site

- specific water quality basis than in this nationally applicable, technology

- based rule. EPA disagrees that the rule eliminates any responsibility on the permit holder to mitigate damages the holder ca uses to the waterway. The rule requires control of factors, including peak flowrates and total stormwater volume , to minimize erosion in the immediate vicinity of discharge points. Limiting this requirement to the generation and discharge of pollutants at and in the immediate vicinity of the discharge is appropriate for a technology

- based regulation.

** **

COMMENT
EPA should delete from any final rulemaking preamble the two sentences preceding EPA’s request for comments for this section because the first sen tence references, inter alia, the “far bank,” which cannot possibly be directly related to the point source discharge, and the other sentence provides an incomplete and unnecessary list of example BMPs more appropriate for guidance.

RESPONSE

EPA notes co mmenter's opposition to the language cited in the proposed rule preamble. EPA generally disagrees that examples cited in the preamble to the proposed rule are more appropriate for guidance. EPA notes that other commenters suggested that the examples were h elpful, and some commenters requested additional examples. See additional response below, in Section 3.0. EPA also disagrees that erosion of the far bank of a stream cannot be directly related to a point source discharge from a sediment basin (or construct ion site) and by extension should not be considered in the immediate vicinity of the disc har ge in some cases. If a discharge from a sediment basin (or construction site) is to a small stream that is, for example, only a foot or two wide, then this discharg e could certainly contribute to erosion of the far bank. The linkage of the extent of erosion to a discharge will depend upon a number of factors, including the volume and flowrate of the discharge in relation to the volume and flowrate of the receiving wa ter , the composition of the bed and bank material, the duration of the flow, and the location and orientation of the discharge in relation to the stream.

 

COMMENT

This is too prescriptive. There are other means to minimize channel and stream bank ero sion in the immediate vicinity of discharge points without controlling volume and velocity. We favor the primaryJanuary 17, 2014

Page 29 of 52 intent of this revision to pull the application of this regulation closer to the source and separate it from other sources outside of the permi ttee’s control.

RESPONSE

EPA disagrees that this requirement is too prescriptive. The requirement is to "control stormwater discharges, including both peak flowrates and total stormwater volume , to minimize erosion ..." EPA agrees that there are other mean s, besides controlling peak flowrates and total stormwater volume, to minimize erosion. However, peak flowrates and the total volume of the discharge are important considerations. The requirement, as written, does not preclude permitting authorities from i ncluding additional parameters.

EPA notes support for limiting the applicability of this provision to the immediate vicinity of discharge points , which is what is contained in the final rule

.

** ** COMMENT

The location where channel and streambank erosion manifests itself is often difficult to specify precisely because discharge from an outfall does not necessarily cause erosion in the “immediate vicinity of discharge points,” but rather may, in combination with other sources, cause erosion further downstr eam. Holding permittees responsible only for erosion in the “immediate vicinity of discharge points” thus potentially fails to hold permittees accountable for downstream erosion properly attributable to the permitted construction activity.
To accomplish th e goal of controlling erosion problems from “peak flowrates and total stormwater volume,” the rule should require that the peak and total flow leaving the site be the same before, during, and after construction. The City suggests that the text “in the imme diate vicinity of discharge points” be eliminated from the requirement since it does not directly address the identified problem.

RESPONSE
EPA agrees that the location where channel and streambank erosion manifests is often difficult to specify precisely. This can be due to a number of factors, such as the discharge from the construction site combining with other discharges in a storm drainage network prior to being discharged to the receiving water. EPA also agrees that discharges from construction sites m ay not cause erosion in the immediate vicinity of the discharge, but may contribute to erosion downstream of the discharge.
While EPA understands that some would find a requirement to also include downstream erosion environmentally beneficial, it is more a ppropriate to consider downstream erosion and sediment impacts on a site

- specific water quality basis than in this nationally applicable, technology

- based rule. Requiring that the peak and total flow leaving the site be the same before, during and after

co nstruction, as suggested by commenter, may be an appropriate requirement for permitting authorities to consider , both in the context of technology

- based standards as well as water quality based requirements

.January 17, 2014

Page 30 of 52  

COMMENT
The language referring to "in the i mmediate vicinity of discharge points" is not supported by PADEP. The use of the term discharge points would result in the overuse of conventional treatment approaches, such as ponds or other centralized facilities, which exhibit a number of inherent pract ical, environmental and economic limitations including elevated water temperatures, costly maintenance burdens, destruction of wetlands, accelerated stream erosion and the inability to replicate predevelopment watershed hydrology. Alternative language offe red by PADEP includes:
"Control construction stormwater discharges, including peak flow rates and total stormwater volume, at or near the perimeter of the project site to assure that water quality standards are achieved and that there is no contribution t o any existing impairment". This approach would establish consistency and compatibility with post construction stormwater management and promotion of low impact design principles such as a hydrologically functional landscape, uniform distribution of small controls and strategic timing, which can be universally applied to all urban, suburban and rural development.

RESPONSE
EPA notes opposition to the language limiting consideration of erosion to the immediate vicinity of discharge points. Commenter notes tha t this requirement may lead to overuse of conventional approaches, such as ponds, that may cause negative impacts. The requirement does not require the use of ponds or other specific practices. Rather, the rule requires consideration of factors, including peak flowrates and total stormwater volume that should be evaluated when practices such as ponds (or more correctly, sediment basins) are used during the construction phase on a project. The intent of this provision is to require management of the discharg e so that scour and erosion does not occur. For example, if practices such as basins or traps are utilized, then stabilization or energy dissipation practices in conveyances and at the discharge point would potentially be effective practice s to utilize to limit scour and erosion in the immediate vicinity of discharge points

. EPA understands commenter's concerns regarding potential negative impacts of stormwater management practices, such as elevated temperatures and increased erosion due to increases in th e amount of work done on receiving channels. C onsideration of these factors has historically been relegated to the post

- construction arena. Post

- construction stormwater management is outside of the scope of this regulation. EPA notes, however, that conside ration of these factors during the planning phase of construction is important since postconstruction stormwater ponds and other practices are built during the construction phase. It is EPA's understanding that states and permitting authorities have been i ncreasing the use of green infrastructure and other practices to address these and other impacts. EPA supports such approaches.
EPA has not adopted commenter's suggestion that the language include a provision that "w ater quality standards are achieved and that there is no contribution to any existing impairment" . These items are outside of the scope of this regulation, which is technology

- based not water quality

- based.January 17, 2014

Page 31 of 52 ** **

COMMENT
The phrase "immediate vicinity" as presented in the proposed requirement sh ould be defined. Additionally, in some instances, controls to protect against downstream impacts (i.e., damage to infrastructure) due to channel and streambank erosion that could result from a specific construction site may be warranted. Consideration shou ld be included in this requirement for the evaluation of construction sites on a case

- by

- case basis to address foreseeable downstream impacts.
More specifically the need for concern about erosive velocities is receiving water specific. Ideally these

concer ns would be addressed through local watershed specific plans or local regulations, not at a national level.

RESPONSE
EPA has not defined the term "immediate vicinity" and is instead leaving this determination up to the permitting authority as site

- specifi c differences makes defining this term difficult in a national rule

. EPA agrees that downstream erosion concerns should not be addressed through a national, technology

based effluent guideline.

 

COMMENT
Again, SDDENR believes that the language about co ntrolling both peak flow rates and total storm water volume is important for the prevention of erosion, but again SDDENR has no authority over drainage. Controlling the discharge to minimize channel and stream bank erosion is also important, but this descr iption should be broadened because not all discharges are to a channel or stream bank. Also, a definition of immediate vicinity would be needed to define exactly what area in the vicinity of the discharge point would need to be inspected for signs of erosi on. As of now, the immediate vicinity is undefined and would be up for interpretation, and there would likely be many interpretations of what the "immediate vicinity" is.

RESPONSE
EPA has not defined the term "immediate vicinity" and is instead leaving th is determination up to the permitting authority as site

- specific differences makes defining this term difficult in a national rule . EPA notes that commenter states that SDDENR has no authority over drainage. However, since this requirement is regulating th e discharge at an NPDES permitted activity, and that practices such as stabilized outlet s or the use of energy dissipation devices at construction sites is standard industry practice and is included in most, if not all, design manuals developed for erosion and sediment control, EPA does not agree that the permit authority lacks authority to implement this requirement. EPA has included the term "and scour" to this provision to acknowledge that the requirement is meant to address erosion in receiving waters t hat do not have channels or streambanks (e.g., lakes)

.January 17, 2014

Page 32 of 52 ** **

COMMENT
The WVDOH understands the need to prevent stream degradation through pollution prevention and erosive force prevention; however, the WVDOH does not believe that it is prudent, feasible or practical to manage stormwater volume unless you have unlimited resources.
The WVDOH does not have the funds available to eliminate the volume of stormwater from the roadway system and adjacent properties. However, there are numerous prudent, feasible or p ractical engineering techniques that are applicable to pollution prevention and erosive force prevention. The WVDOH manages stormwater discharge (cubic feet/meters per second) for projects by requiring the post

construction discharge to be equal to or less than the preconstruction discharge; thereby preventing increased stressors on the stream and stream bank.
Furthermore, the WVDOH believes that the EPA is exceeding its authority, granted through the Clean Water Act, by attempting to regulate stormwater vo lume. U.S. District Court Judge Liam O'Grady's January 2013 decision discussed the fact that the EPA could not regulate stormwater flow because stormwater itself is not considered a pollutant. The EPA is charged with establishing limits on pollutants, "tha t does not give them authority to regulate non pollutants ... " While the US District Court decision is limited in scope, the basic principle is still sound.

RESPONSE
EPA disagrees with the comment that managing stormwater volume at construction sites is n ot prudent, feasible , or practical unless one has unlimited resources

. While volume reduction is one possible means of controlling stormwater volume and velocity to minimize soil erosion, it is not the only means. Other means include detention, dispersion, energy dissipation and flow duration control. EPA recognizes that linear construction projects have constraints that do not exist on other types of construction projects. EPA expects that permitting authorities will include appropriate considerations for linear projects in their permits and guidance manuals with respect to control of volume and velocity to minimize soil erosion, and for controlling peak flowrates and total volume to minimize erosion in the immediate vicinity of discharge points.

EPA does not agree that the agency has exceeded its authority under the Clean Water Act with this provision. See the supplemental information added to the 2009 C&D Final Rule record (see EPA

- HQ

- OW

2008

- 0465

- 2124 through EPA

- HQ

- OW

- 2008

- 0465

- 2134) for a description o f the linkage between controlling volume and velocity of stormwater and the discharge or pollutants. See also responses above to public comments re EPA’s authorities.January 17, 2014

Page 33 of 52 Comments on 450.21(a)(6)
450.21(a)(6) Provide and maintain natural buffers around water s of the United States, direct stormwater to vegetated areas and maximize stormwater infiltration to reduce pollutant discharges, unless infeasible;
AASHTO agrees with the intent of the proposed clarifications and offers additional proposed changes to furt her clarify the intent of the measure. Natural buffers can be effective to provide pollutant removal and infiltration of stormwater. Pollutant removal can be accomplished in buffer areas through filtering, sedimentation and infiltration. Maximizing stormwa ter infiltration, while desirable in many cases, is secondary to the primary objective of reducing pollutant discharges. As such, we recommend striking, “...and maximize stormwater infiltration...” so the measures taken to reach the goal of reducing pollutant discharges will not be limited to infiltration measures.
There are instances, such as stream crossings, where buffers are infeasible. We recommend discussing these instances in the proposed rule to provide context for application of this provision. Further , we recommend clarification in the case where the alteration of waters of the U.S. has been granted through a Section 404 permit process to avoid the potential inference of being subject to multiple Clean Water Act permits at a discrete location. The EPA should specify that the 404 Permit would govern activities in this instance.
AASHTO recommends that EPA revise the language to state:
Provide and maintain natural buffers around waters of the United States, direct stormwater to vegetated areas to reduce po llutant discharges, unless infeasible.

REPONSE:
EPA disagrees with the comment that the language regarding maximizing infiltration should be deleted. Directing stormwater to vegetated areas such as buffers and infiltrating stormwater is an effective way of reducing pollutant discharges , as noted by commenter . Where vegetated buffers exist, they can be effectively used in many cases to reduce to total volume of stormwater discharged through interception, evapotranspiration and infiltration and to provide fil tration of water that is subsequently discharged. Careful design is necessary to ensure that these discharges are applied in an appropriate manner, such as by using level spreaders or other dispersion methods, so as to not cause erosion. However, proper

co nsideration of opportunities for utilizing vegetated areas for filtration and for infiltration can reduce the quantity of pollutants discharged to waters of the U.S. Therefore, EPA is not making any changes to this proposed requirement. EPA also notes that the infiltration provision contains an "unless infeasible" qualifier, which provides flexibility for permittees in cases where infiltration is not feasible.
EPA acknowledges the comment requesting that additional examples of where buffers are infeasible i n the preamble, but EPA has determined that permitting authorities can best describe these cases in their permits, design manuals or in other appropriate locations where it will be more apparent to permittees and where these examples can be updated as need ed as practices change.January 17, 2014

Page 34 of 52 With respect to CWA Section 404 permits, the C&D rule requirement for buffers is not intended to conflict with any construction activities approved under a CWA Section 404 permit . See the 2012 EPA CGP as an example of how permitting authorities can make this clear in their permits.

 

COMMENT

... considering linear rights

- of

- way, implementing buffers and maintaining vegetated areas is generally impracticable.

RESPONSE
EPA does not disagree that , in certain cases, implementing buffers and maintaining vegetated areas may be impracticable. This is particularly true on linear projects with limited rights

- of

- way. For this reason, EPA has included an "unless infeasible" qualifier for this requirement to provide flexibility in these and othe r cases

.

** **

COMMENT
This also is too prescriptive. If pollutant discharge can be controlled by other means, compliance should result. This is just one tool in the toolbox. Extra considerations such as this for sites which discharge directly to a WOUS may be appropriate, but research in the arid west has demonstrated the infeasibility (detrimental effects) of encouraging infiltration given certain hydrogeological conditions.

RESPONSE
EPA does not agree that the provision to maximize infiltration is too pr escriptive. EPA has included an "unless infeasible" qualifier for this requirement. EPA agrees that there are other "tools in the toolbox." Indeed, this requirement is only one component of a comprehensive strormwater management program on construction sit es. In addition to pollution removal, buffers and infiltration can provide a variety of other water quality and non

- water quality environmental impacts. EPA does not disagree that infiltration may be detrimental in certain hydrogeological conditions. Permi tting authorities may choose to utilize the "unless infeasible" provision in this and other cases (for example, if pollutants in contaminated soils may be mobilized by increased infiltration).

 

COMMENT
Generally, PADEP opposes the change to this sectio n of the proposed ELG Rule revisions, particularly without further clarification of terms as introduced. Specifically, PADEP opposes each of the following proposed changes to this part of the ELG Rule:January 17, 2014

Page 35 of 52 1. "Waters of the United States" is a broader definiti on than "Surface Waters", as defined in PADEP's Chapter 102 Regulations.
Inclusion of "Waters of the United States" will require installation, or maintaining buffers around waters more extensively than currently required, including the requirement of buffe rs to be installed or maintained around jurisdictional wetlands. This is especially problematic as it introduces Rapanos et ux., et al. v. United States, and the "significant nexus" determination and other guidance used to clarify protection of waters unde r the Clean Water Act established by the EPA and the Army Corps of Engineers. This definition will result in delay and additional burden on the permitting agency and the regulated community in determining permitting and other relevant actions that are nece ssary for the permit decision and to support by the administrative record.
2. The term "natural buffers" is not specific. The term needs to be better defined to establish what is acceptable in the proposed ELG Rule to be considered a "natural buffer". PADE P recommends that EPA include revised language regarding the specific requirements that will be acceptable to meet this obligation, such as criteria, width, composition, etc. of a "natural buffer" in relation to "Waters of the United States". PADEP Chapter 102 regulations provide this type of specificity in 25 Pa. Code Section 102.14.

RESPONSE
With respect to the change to "Waters of the U.S", these waters represent the same set of waters that EPA intended to address with the previous "surface waters" langu age. As evidence of this, EPA defined “surface waters” in the 2012 Construction General Permit section implementing the natural buffer requirements to mean “waters of the U.S.” (see Appendix A, page A

- 10).
EPA is not defining the term "natural buffer ." Due to the diversity in factors such as climate and vegetation across the U.S., allowing permitting authorities to define in their permits appropriate buffer conditions is a more flexible approach. EPA notes that the criteria described by commenter in s tate code may be an appropriate language for that state to use. Other definitions may also be appropriate, including, for example, the following definition of "natural buffer" contained in the EPA CGP: "For the purposes of this permit, an area of undisturb ed natural cover surrounding surface waters within which construction activities are restricted. Natural cover includes the vegetation, exposed rock, or barren ground that exists prior to commencement of earth

- disturbing activities."

** **

COMMENT
Clarific ation should be provided with respect to the use of "provide ... natural buffers ... " For example, it is unclear whether "provide" means that the permittee is required to establish natural buffers where natural buffers do not exist. Additionally, the phra se "natural buffers" should be clearly defined
Maximizing infiltration in areas with polluted soils may be feasible but may have adverse impacts on groundwater. EPA should add "or undesirable due to potential contamination of groundwaterJanuary 17, 2014

Page 36 of 52 RESPONSE

EPA expec ts that if a natural buffer is not present, that a vegetated buffer, or equivalent control if allowed by permit , would need to be implemented by the permittee , unless site conditions make it infeasible to do so. EPA has intentionally not specified what it means to provide a buffer so that permitting authorities can establish their own requirements based on what makes the most sense in their states. EPA refers the commenter to Part 2. 1.2.1 of the Agency’s 2012 CGP for an example of how permitting authoriti es may choose to implement this provision in permits.
EPA does not disagree that infiltration may be detrimental in certain hydrogeological conditions , for example where pollutants in contaminated soils may be mobilized through increased infiltration

. Pe rmitting authorities may choose to acknowledge in their permits what conditions on a site make it infeasible to require infiltration . The regulation provides this flexibility because it requires that natural buffers be provided “unless infeasible.” ).

*** *

COMMENT

... there may be situations where it would be more beneficial to direct storm water flow directly to a basin, channel, or storm sewer inlet. In such situations, it may not be infeasible to direct the flow to the buffer first, but it could be less p ractical. Site conditions would really dictate whether or not a buffer is feasible and practical. It may also be a large burden on the permitting authority to prove whether or not a buffer is feasible around waters of the United States.

RESPONSE
The requi rement to direct stormwater to vegetated areas can be implemented before or after water is first directed to a basin or channel

- the rule does not specify when and where stormwater is to be directed to vegetated areas, only that it is to be done and that stormwater infiltration is to be maximized, unless infeasible

. Also, the vegetated area does not have to be a buffer

- it could be any vegetated area located on a site. For example, an outlet from a basin can be directed to level spreader where the stormwa ter can be filtered and/or infiltrate d prior to being discharged from the site. Another example would be to direct stormwater flowing down a disturbed slope to a vegetated area prior to that stormwater being collected in a channel and conveyed to a sedimen t basin. In this case, the vegetated area need not be a buffer. EPA expects that the opportunities to direct stormwater to vegetated areas will vary across different sites and in different climatic locations.
EPA agrees that site conditions and topography may dictate whether or not a buffer is feasible. There may be some burden on the part of permittees and on permitting authorities to determine whether or not a buffer is feasible

. EPA expects that permittees would be required to implement buffers in most cases, and only a site

- specific constraint would preclude their use. EPA notes that the use of buffers is already common practice in a number of states, indicating that the practice is broadly applicable and feasible.January 17, 2014

Page 37 of 52 ****

COMMENT
EPA may not lawfully requ ire operators to direct sheet flow to vegetated areas, as the Agency does not have regulatory authority over sheet flow until it is channelized and discharged (see related discussion above).

RESPONSE
The requirement to direct stormwater to vegetated areas applies to all permitted discharges from the construction site. See responses above regarding EPA’s authority over discharges from construction sites to waters of the U.S.January 17, 2014

Page 38 of 52 Comments on 450.21(a)(7)
450.21(a)(7) Minimize soil compaction. Minimizing soil co mpaction is not required where the intended function of a specific area of the site dictates that it be compacted; and

COMMENT

... the integrity of highway infrastructure requires compaction to preserve the mobility and safety of the public.

RESPONSE

EPA agr ees with this comment, and the requirement does not apply to areas of the site where the intended function dictates that it be compacted.

 

COMMENT
AAR members construct facilities for rail transportation, service, and associated activities. These facil ities require compaction of soils and should be included in EPA’s current list of examples which currently includes foundation pads for buildings or road subgrade material.

RESPONSE
The requirement to minimize soil compaction does not apply to areas of the site where the intended function dictates that it be compacted. EPA agrees that foundation pads for buildings, road subg rade materials, and rail beds may be appropriate areas for compaction, among others. EPA has not provided a list of all of these cases as enumerating all cases would be infeasible. EPA has left this determination up to the permitting authority , as this allows for updates as permits are revised

.

** **

COMMENT
EPA enters into an unnecessary and confusing discussion of site conditions and si te management (in sections (a) and (2)), which are better left for guidance documents and which, in some cases, are completely inappropriate. For example, EPA suggests that one manner to preserve topsoil is by “limiting clearing . . . to accommodate the bu ilding footprint.” This statement raises an issue that the proposed revisions are attempting to resolve

– that EPA can assert authority over the site and how site operations are conducted, and not the discharge of pollutants from a point source. EPA also c annot mandate post

construction controls or stormwater infiltration because, again, such considerations are not subject to EPA’s NPDES or Clean Water Act authority.

RESPONSEJanuary 17, 2014

Page 39 of 52 EPA disagrees that the discussion of site conditions and site management is inappr opriate. EPA received other comments indicating that the examples contained in the proposed rule preamble were helpful. See earlier response regarding EPA's authority to address pollution reduction through infiltration. EPA disagrees that the Agency does n ot have the ability to regulate internal processes if those processes lead to a discharge of pollutants. See responses to comments on this topic above. Post

- construction stormwater discharges are outside of the scope of this rulemaking.

 

COMMENT

... the methods to be used to demonstrate compliance with this requirement are unclear. This requirement should be accompanied by clear guidance on the specific meaning and interpretation of the requirement. For example, the guidance should include discussion on topics such as soil rehabilitation through the use of soil amendments and deep

- ripping of areas temporarily compacted during construction (e.g., temporary haul roads). Without clearer guidance, the current lack of specificity of this requirement will likel y lead to a wide range of interpretation at the state and local levels, and within the C&D industry.

RESPONSE

EPA has determined that the level of detail requested by commenter is best addressed by permitting authorities in their permits or design manual s due to the variation in project types and soil and other factors present across the country. This also allows for updates to permits and manuals as practices evolve over time.

** **

COMMENT

... the rule should allow for compaction related to temporary sta bilization. There are several temporary stabilization methods that need some soil compaction to help prevent erosion. This temporary stabilization does not have anything to do with the function of the site area, but is a permit requirement. This rule chang e would prohibit potential temporary stabilization methods.

RESPONSE
EPA agrees that compaction may be an appropriate temporary soil stabilization measure in some cases. An example would be tracking a slope with a dozer. EPA does not agree that the rule language would prohibit compaction for temporary stabilization. EPA expects that permitting authorities that consider compaction for temporary stabilization as being appropriate will include such measures in their permits and design manuals.January 17, 2014

Page 40 of 52 Comments on 4 50.21(a)(8)
450.21(a)(8) Unless infeasible, preserve topsoil. Preserving topsoil is not required where the intended function of a specific area of the site dictates that the topsoil be disturbed or removed.

COMMENT
EPA suggests that one manner to preserve topsoil is by “limiting clearing . . . to accommodate the building footprint.” This statement is problematic for two reasons. First, it suggests authority over the facility, not the discharge of pollutants from a point source. Second, it ignores the realit y that to construct a home the builder must clear an area larger than that required for the “building footprint.” The explanatory language should be removed.

RESPONSE
EPA disagrees with this comment. The term “accommodate” in this example means that the pe rmittee would be permitted to clear as much area of the site as necessary to construct whatever is being constructed. This would not limit clearing to just the building footprint, as this would almost certainly be infeasible. EPA notes that the examples pr ovided in the preamble to the proposed rule are examples only, and that the permits and guidance manuals developed by permitting authorities will contain additional details on how t o implement the requirements, including descriptions of appropriate cleari ng and grading requirements.

 

COMMENT
The intent of §450.21(a)(8) about preserving topsoil is not clear. Is the intention to minimize disturbance or preserve topsoil for reuse (or both)? The intent could be clarified by rewording to: “Unless infeasible , preserve topsoil in place and/or preserve for reuse elsewhere on the project. ...”

RESPONSE
The intent of this requirement is to both limit the disturbance of topsoil, as well as to retain topsoil for

use on

- site. The ability to do this on individual si tes will depend on site

- specific conditions, which is why there is an “unless infeasible” provision included , as well as the second sentence that EPA added where the intended function of a specific area of the site dictates that the topsoil be disturbed or removed

. EPA is not incorporating the changes in language suggested by the permittee. EPA expects that permitting authorities will include additional details in their permits and guidance manuals on implementation of this requirement.

** **

COMMENTJanuary 17, 2014

Page 41 of 52 SDDENR agrees that preserving topsoil on a site is important for stabilization, but certain situations could prevent a permittee from preserving topsoil. Again, the burden should be on the permittee to explain in the plans and specifications and the SWPPP why the topsoil would not be preserved. SDDENR does not to tell permittees what to do with materials on their site other than to minimize their exposure to storm water. The main concern of SDDENR is with the quality of water that is discharged from the site. Thou gh preserving topsoil may help improve the quality of water by providing a means to stabilization, other options to provide stabilization are available so long as the disturbed area is stabilized in accordance with permit requirements.

RESPONSE

EPA agrees that there are certain situations where it may be infeasible to preserve topsoil, which is why this provision contains an “unless infeasible” qualifier. EPA agrees that the burden should be on the permittee to demonstrate infeasibility. EPA agrees that th ere are other options to provide stabilization, but notes that good soil structure can be obtained through use of quality topsoil that can facilitate vegetation establishment , which is a highly effective means of reducing erosion and subsequent pollutant d ischarges . Good soil structure also promotes infiltration, which can reduce pollutant discharges.January 17, 2014

Page 42 of 52 Comments on 450.21(b)
450.21(b) Soil Stabilization. Stabilization of disturbed areas must, at a minimum, be initiated immediately whenever any clearing, gradi ng, excavating or other earth disturbing activities have permanently ceased on any portion of the site, or temporarily ceased on any portion of the site and will not resume for a period exceeding 14 calendar days. In arid, semiarid, and drought

- stricken ar eas where initiating vegetative stabilization measures immediately is infeasible, alternative stabilization measures must be employed as specified by the permitting authority. Stabilization must be completed within a period of time determined by the permit ting authority. In limited circumstances, stabilization may not be required if the intended function of a specific area of the site necessitates that it remain disturbed.

COMMENT
The proposal to allow exemption for site areas that are to remain disturbed i s consistent with industry operation and AASHTO supports this language. Also, we recommend an exemption for areas less than one acre in size as minor site disturbed areas should not be a priority for “immediate” initialization of stabilization as they have little or no potential to discharge offsite. An exemption for areas less than one acre in size would give the site operator sufficient latitude to schedule stabilization operations considering the site as a whole, in the most economical manner.

In additio n, the term “initiate immediately” as defined in the EPA Construction General Permit should be included in the proposed rule. The Construction General Permit definition is, “as soon as practicable but no later than the end of the next work day, following t he day when the earth

- disturbing activities have temporarily or permanently ceased.” This intrinsic 24

- hour planning window is an important aspect that provides a practical basis for interpreting the requirement.

RESPONSE
EPA is not adopting the requested change to exempt areas less than one acre in size from the immediate stabilization requirement. The requirement applies to all areas of the site, regardless of size. EPA does not agree that areas less than one acre on a site have little or no potential to discharge. If the area is adjacent to a stream or storm drain or other discharge location, or the water from this area flows downslope to receiving waters, then there is a potential for discharge. As stated in the 2009 final rule, the requirements represen t BAT/BADCT for all sites that disturb one or more acre of land.
EPA is also not including the term “initiate immediately” from the EPA CGP and is instead allowing permitting authorities to define this in their permits. EPA notes that permitting authoritie s may choose
to use th e language f r o m E P A ' s C G P as a guide in developing language for permits.

 

COMMENT

... in arid systems, it is appropriate to provide additional latitude to allow for vegetation to propagate.January 17, 2014

Page 43 of 52 RESPONSE
EPA agrees and has included appropriate langu age in the rule requirement.

** **

COMMENT
AAR believes that the revisions proposed by EPA for 40 CFR 450.21(b) (Section 6 on page 19439 of the Federal Register) do not go far enough in clarifying the time requirements for initiation and completion of soil stabilization when soil disturbing activities have ceased. AAR believes the term “immediately” should have been reasonably defined in the proposed ELG revisions. An acceptable definition of “immediately” is provided in the EPA CGP
Also the proposed C&D ELG changes seem to provide for only two situations that qualify as exemptions for initiating or completing stabilization. ). In contrast, the guidance in Section 2.2 of the 2012 EPA Construction General Permit (CGP) (signed February 16, 2012) is much more de tailed, and allows for several additional exemptions.
exemption from initiating stabilization for areas of your worksite where permanent structures will be built.
additional contingencies that that provide a basis for an exemption from deadlines for initia ting and finalizing stabilization, which include “sudden work stoppage due to unanticipated problems associated with construction labor, funding, or other issues related to the ability to work on the site; weather conditions rendering the site unsuitable f or the continuation of construction work
additional exemptions for the initiation or completion of vegetative stabilization that are beyond the control of the operator, allowing temporary stabilization measures to be initiated instead.
The final modificati ons to the ELG should provide that these additional contingencies and exemptions in the 2012 EPA CGP also apply to the deadlines for the initiation and completion of soil stabilization required by the ELG.
AAR recommends that the final revision to the effl uent limitations guidelines and standards for C&D provide NPDES permitting authorities with greater flexibility to determine when alternative stabilization measures, or in the alternative substitute sediment control technologies, may be appropriate. Exampl es include areas and conditions of low temperatures, or excessive or inadequate moisture to support seed germination.

RESPONSE
EPA is not adopting the language contained in the current EPA CGP into the rule language and is instead allowing permitting auth orities to define this in their permits. EPA notes that permitting authorities may choose t o use this language as a guide in developing language for permits. The rule language provides sufficient flexibility for permitting authorities to develop implementing language in permits reflective ofJanuary 17, 2014

Page 44 of 52 the range of conditions present in their permitting areas , as EPA did in its 2012 CGP (as pointed out by the commenter)

.

****

COMMENT
However, the language as proposed is overly broad.
If the exemption is meant to be as na rrow as the EPA states, then it should be more carefully worded. For example, it could be worded as follows: “In very limited circumstances, stabilization may not be required if the intended function of a specific area of the site after development of the project is complete necessitates that it remain disturbed.” If the exemption is not limited to “intended functions” of an area after development, then it would seem any function which would facilitate active construction in other areas of the site would be exempt, even if there is no purpose for leaving it disturbed after construction

ceases.

RESPONSE
EPA does not agree with the suggested language. EPA expects that there are very limited circumstances where an area would need to remain unstabilized during c onstruction, or remain unstabilized following the completion of construction (e.g, a motocross track)

. The language as finalized provides sufficient flexibility for permitting authorities to develop appropriate implementing language for this requirement.

* ***

COMMENT
The second sentence in the amended requirement for stabilization of disturbed areas should include cold weather conditions along with “arid, semiarid, and drought

- stricken areas where initiating vegetative stabilization measures immediately is infeasible,” since vegetative stabilization is also infeasible in cold weather conditions.
PADEP recommends revising the existing language from immediate stabilization to include "areas under snow cover" to be added to the "arid, semiarid and drought stric ken" language where temporary stabilization may not be required until conditions allow.

RESPONSE
EPA notes that 450.21(b) does not require vegetative stabilization. Both vegetative and non

- vegetative stabilization may be appropriate measures, consistent w ith permit requirements. The sentence "In arid, semiarid, and drought

- stricken areas where initiating vegetative stabilization measures immediately is infeasible, alternative stabilization measures must be employed as specified by the permitting authority" states that alternative "e.g., non

- vegetative" stabilization measures must be employed in these areasJanuary 17, 2014

Page 45 of 52 because vegetative stabilization is infeasible (because adequate moisture would not be present to establish and maintain such vegetation). However, the l anguage does not limit the use of non

- vegetative stabilization in other instances, such as during cold weather conditions. All areas (except those where the intended function necessitates that it remain disturbed) would require stabilization, vegetative or

non

- vegetative, consistent with requirements developed by the permitting authority.
After consideration of all comments on this provision, EPA did not make any changes to the proposed requirement for today's final rule. EPA has determined that the require ment contains sufficient flexibility for permitting authorities to develop appropriate criteria for vegetative and non

- vegetative stabilization, and to develop permit language regarding the timing of such stabilization activities.

 

COMMENT

The term "im mediately" provided both in the 2009 Final Rule and in the proposed amendment should be defined
The lack of definition for this term presents a challenge in clearly understanding a critical timing aspect of this requirement from both an implementation and compliance perspective.
clarification should be provided for instances where earth

- disturbing activities are unexpectedly temporarily ceased for 14 days or more
The first sentence of §450.21(b) should be reworded. “Immediately” is subject to various interp retations and has been elsewhere defined to be accomplished within 15 minutes. We recommend that “immediately” be replaced with “as soon as practicable”.

RESPONSE
EPA is not defining the term “immediately” in this rule and is instead allowing permitting a uthorities to define this in their permits. EPA notes that the EPA CGP contains an interpretation that permitting authorities may choose to use as a guide when developing permit language for this requirement.

** **

COMMENT

... there is some concern about not requiring stabilization in limited circumstances where the intended function of the specified area of the site necessitates that it remains disturbed. If this is the case, the SWPPP can be written to leave an area disturbed and the permitting authority wou ld be burdened to prove whether or not the intended use actually does necessitate the area remain undisturbed. This could potentially lead to problems if permittees take advantage of this rule and leave areas undisturbed, claiming it is for the intended us e of the site. Since SDDENR may not be more restrictive than the EPA, if the EPA does not require stabilization for intended use, SDDENR can do nothing about this even if it is obvious the permittee is taking advantage of this rule. One way to combat this issue would be to require permittees to request a variance for not stabilizing certain areas of the project site based on the intendedJanuary 17, 2014

Page 46 of 52 use of that site. The cases where an area needs to remain disturbed would be rare enough where SDDENR believes the permit tee should have to request a variance in order to leave that area disturbed. The reasoning as to why the area needs to remain disturbed should also be submitted to the permitting authority for review, documented in the plans and specs, and documented in th e SWPPP. This would help relieve the burden on the permitting authority for this issue.

RESPONSE
EPA expects that there are very limited circumstances where an area would need to remain unstabilized during construction, or remain unstabilized following t he completion of construction (e.g., a motocross track) . If the permit authority decides to implement this requirement by way of a variance request and by requesting information to substantiate the request in SWPPPs, this would not be prohibited by or inco nsistent with this rule and may be an effective means of implementing this requirement.

 January 17, 2014

Page 47 of 52 Comments on 450.21(d)(2)
450.21(d)(2) Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and other materials present on the site to precipitation and to stormwater. Minimization of exposure is not required in cases where the exposure to precipitation and to stormwater will not result in a dis charge of pollutants, or where exposure of a specific material or product poses little risk of stormwater contamination (such as final products and materials intended for outdoor use); and

Comment

... in most linear construction settings, buildings are not a vailable in which to house building material, products, wastes, or trash. In addition, covering materials that will ultimately be left in place out in the natural environment is impractical. Construction staging areas may relocate several times during a
pr oject.

RESPONSE
Permittees are not required by this rule to have buildings available in which to house building material, products, wastes or trash. Permittees are required, however, to minimize exposure of these materials (and others) to precipitation and to stormwater. The purpose of minimizing exposure is to minimize the discharge of pollutants from these materials. EPA agrees that it may be impractical to cover some materials that will ultimately be left in place in the environment, such as materials in tended for outdoor use, and has included appropriate language addressing this situation in the rule.

** **

COMMENT
While I generally support this change, I’m not sure that the words “precipitation and stormwater” are the best. I cannot find a definition for stormwater in 40 CFR 450, so I can’t be sure, but I believe “stormwater runoff” is more descriptive and would be a better wording for this.

RESPONSE
EPA has not adopted the proposed change, but notes that the commenter’s recommended language is already in corporated into the intended meaning of “precipitation and stormwater.” The use of the words “precipitation and stormwater” in the context of this requirement is intended to include both direct contact by rainfall or snow (i.e., precipitation), and contac t by stormwater runoff, snowmelt runoff, and surface runoff and drainage (i.e., stormwater). The definition of the term “stormwater” can be found at 40 CFR 122.26(b)(13).

 

COMMENTJanuary 17, 2014

Page 48 of 52 The language as written appears to put the burden of proof on the devel oper for insuring that products "intended for outdoor use" do not pose a risk of storm water contamination

RESPONSE
EPA agrees that the burden is on the permittee to ensure that materials pose little risk of stormwater contamination, since the permittee is in control of the site, not the permit authority.

** **

COMMENT
One question that arises is with pesticides and herbicides. They are intended for outdoor use, and the intended use for pesticides and herbicides in outdoor applications will likely not contam inate storm water. However, the rule change states that materials intended for outdoor use have little risk to contaminate storm water. This rule should clarify that exposure of the storage of pesticides and herbicides needs to be minimized, as large quant ities of pesticides and herbicides can contaminate storm water. The way the rule is rewritten is contradictory without distinguishing the storage of pesticides and herbicides to the use of pesticides and herbicides.

RESPONSE

The rule does not state that al l materials intended for outdoor use pose little risk of stormwater contamination. By incorporating the language “such as” in this requirement, the rule states that materials intended for outdoor use are an example of materials that may pose little risk of stormwater contamination. However, it will be up to the permittee, and ultimately the permit authority , to make a determination on specific materials. EPA expects that permitting authorities will describe the types of materials that should be minimized or prevented from being exposed to precipitation and to stormwater, and that pesticides and herbicides are examples of materials that should be prevented from being exposed to stormwater and precipitation prior to being applied.January 17, 2014

Page 49 of 52 Comments on Removing the Nume ric Turbidity Limitation and Monitoring Requirements

COMMENT
AASHTO recommends that the statement reserving the paragraphs in the regulation be removed, as reserving this statement is confusing. EPA could propose any future requirement in a future rulemaki ng.

RESPONSE
EPA acknowledges this comment, but reserving paragraphs 450.22(a) and (b) preserves linkages of subsequent paragraphs to previous sections of the rule. Therefore, EPA has elected to reserve these paragraphs instead of re

- numbering all subseque nt paragraphs for efficiency.

 

COMMENT
I believe a turbidity standard should be applied to stormwater from construction sites, as turbidity is an excellent surrogate parameter for many pollutants. I urge the EPA to continue to work on finding a defensi ble turbidity standard for construction site runoff, and to include that in future rulemaking.

RESPONSE
EPA acknowledges support for continuing efforts to collect data and develop a numeric turbidity standard.

** **

COMMENT
The third element of the Proposal withdraws numeric turbidity effluent limitations guidelines (“ELGs”) in 40 CFR 450.22(a) altogether. The EPA claims this revision is necessary to resolve the scope of certain provisions and exceptions in the original 2009 statute, but it also represents a significant concession that may not be in the best public interest. Rather than completely abandon the current numeric guidelines limiting turbidity in stormwater discharge from C&D sites, the EPA should strive to incorporate elements of both the numeric system and the already established non

- numeric standards...
Rather than coming to a complete concession on this particular issue, and eliminating the numeric limits altogether, it is more reasonable for the EPA to take following steps as a direct response to the issues raised by the industry petitioners: Collect sufficient data; Re

- open the Final Rule for public comment; Revise the numeric guidelines; Take a firmer position on whether C&D sites should be regulated entirely as “point sources”, rather than as a mix of point and non

- point sources.

 

We urge EPA to re

- establish a scientifically supported numeric effluent limit for turbidity in the Construction ELG.January 17, 2014

Page 50 of 52 Numeric effluent limits (NELs) are required where feasible, as is the case with stormwater discha rges associated with construction activity.
Instead of resolving any potential deficiencies in the record, EPA abandoned many hard years of work and withdrew the turbidity NEL and monitoring requirements. We urge EPA to re

- evaluate the data and promulgate an ELG that establishes an NEL for turbidity.
The CWA, its implementing regulations, and case law interpreting the establishment of technology

- based effluent limitations in NPDES permits, all require that NPDES permits contain NELs when feasible.

States ne ed guidance from EPA to set appropriate NELs for construction activities.
Rather than committing to conduct the proper analysis to promulgate a turbidity NEL for the Construction ELG, EPA proposes to simply remove the NEL and revert back to a BMP

- based per mitting scheme. However, EPA’s authority to include BMP requirements in NPDES permits is limited. 14 The EPA’s authority to impose BMPs is supplemental to its duty to impose numeric, technology

- based effluent limitations

– a point the regulations themselves make clear when allowing for BMPs when they are “reasonably necessary to achieve effluent limitations,” (i.e., to supplement the effluent limitations by ensuring measures are taken to meet them). 15 The allowance for BMPs in NPDES permits is separate and d istinct from the requirement that permits contain numeric, technology

- based effluent limitations.
We respectfully request EPA heed its own recommendation to the states, and promulgate a turbidity NEL for inclusion in the Construction ELG.

In years past, it may have been difficult to set NELs for discharges associated with construction activities. However, new data, 21 and progress in scientific understanding and technical capabilities have made it feasible to establish and implement NELs.

RESPONSE

EPA acknow ledges commenters’ request that EPA reinstate a numeric standard for turbidity and commenters’ submission of data and references in support of a numeric turbidity limitation. EPA previously stated in the 2009 final rule that numeric effluent limitations ar e feasible. While EPA does not disagree with this statement, the Agency currently lacks sufficient data to establish such limitations that are reflective of the best available technology economically achievable given the variations in performance due to fa ctors such as soil types, climate and precipitation duration and intensity that occur across the country. While informative, data submitted by commenters , in combination with data that EPA has in

- house, is not sufficient to support a numeric limitation for all project types and locations at this time. Therefore, it is EPA's position that it is premature to establish revised numeric effluent limitations for this category at this time , and that the resulting final rule represents the best available technology economically achievable and the best available demonstrated control technology

.January 17, 2014

Page 51 of 52 3.0 Comments concerning examples included in the proposed rule preamble
Several commenters were opposed to the examples of BMPs and other explanatory discussion in the
pream ble to the proposed rule. These c ommenters indicated that this discussion was extraneous and unnecessary and that these examples may confuse permit writers, permitting authorities, permittees and the general public. EPA disagrees with all of these comments . The majority of comments received from permit writers, permitting authorities, permittees and the general public did not indicate that these examples caused confusion. While EPA appreciates concerns that these examples may have caused confusion, EPA beli eves that the discussion contained in the preamble to the proposed rule may aid permitting authorities in developing permit language to implement the requirements. EPA notes that permitting authorities oftentimes need to develop specific language to implem ent the narrative rule requirements in permits. One may consult the most recently issued EPA CGP as an example. The permit contains extensive, specific contr ols that serve to implement the narrative requirements of the C&D rule, as well as other requiremen ts that are not associated with the C&D rule. As industry practice and technology changes over time, permitting authorities (including EPA) will generally update those permits to reflect current best practices, reflective of the C&D rule requirements as we ll as other requirements. Therefore, including examples of practices that reflect industry best practices at this point in time is appropriate. EPA notes that permitting authorities are able to include language they determine is appropriate in permits or g uidance when implementing the rule consistent with their interpretation of the rule, and are not obligated to include the specific examples cited by EPA in the preamble to the proposed rule

.January 17, 2014

Page 52 of 52 4.0 Other comments
EPA notes that one comment (ID EPA

- HQ

- OW

- 201 0

- 0884

- 0165) was not germane to the C&D rule revisions.

** **

COMMENT
Finally, NAHB strongly encourages EPA to revise the National Pollutant Discharge Elimination System general permit for stormwater discharges from construction activities (CGP) to make it consistent with the revised C&D rule language

RESPONSE

EPA is not revis ing the current construction general permit to be consistent with the final rule requirements at this time . Permitting authorities are not required to incorporate new or modified efflu ent limitations guidelines into applicable NPDES permits until they are next up for issuance. EPA will evaluate what changes may be appropriate when the Agency begins the process of issuing its next CGP. EPA believes that the 2012 CGP was written in a ma nner that is consist ent with the rule changes promulgated today. Therefore, the Agency does not anticipate making significant modifications to the permit as a result of these rule revisions when it is next reissued

.