Economic Analysis

– Cost Implications of the Draft CGP

INTRODUCTION

EPA provides this “Economic Analysis” as part of the administrative record in support of the draft Construction General Permit (or “ draft CGP”). This analysis evaluates the cost implications of the significant proposed changes to the permit. Each significant change is examined in light of the current permit’s (the “2008 CGP”) requirements and the requirements of
the Construction and Devel opment Effluent Limitations Guideline and New Source Performance

Standards (the “C&D rule”) , which for the first time is being incorporated into the CGP

. The objective of this examination is to show where or to what extent the draft CGP proposes requireme nts that impose an incremental increase in costs on permittees above and beyond costs that are already accounted for in the 2008 CGP or in the C&D rule requirements, which together define the baseline of costs to which these permittees are currently subjec t.

BACKGROUND

Since 1992, EPA has issued a series of CGPs that cover areas where EPA is the NPDES permitting authority. At present, EPA is the permitting authority in four states (Idaho, Massachusetts, New Hampshire, and New Mexico), the District of Co lumbia, Puerto Rico, all other U.S. territories with the exception of the Virgin Islands, federal facilities in four states (Colorado, Delaware, Vermont, and Washington), most Indian lands and other specifically designated activities in specific states (e .g., oil and gas activities in Texas and Oklahoma). See Appendix B of the proposed permit for a complete list of areas covered by EPA’s CGP. EPA’s current CGP, the 2008 CGP, became effective on June 30, 2008 (see 74 FR 40338), and will expire on June 30, 2011. The draft CGP , once finalized, will replace the 2008 CGP.

In order to gain an understanding of the incremental differences between the 2008 CGP and the draft CGP it is first necessary to provide summaries of the requirements in the current permit and of the new requirements in the C&D rule.

The 2008 CGP

The key components of the 2008 CGP are non

- numeric effluent limitations that require the permittee to minimize discharges of pollutants in stormwater discharges using stormwater controls that reflect best engineering practices based on EPA’s best professional judgment.
Construction sites must minimize their discharge of pollutants in stormwater using appropriate
erosion and sediment controls and control measures for other pollutants such as litter, construction debris, and construction chemicals that could be exposed to stormwater and other wastewater. The 2008 CGP requires dischargers to develop a stormwater pollution prevention plan (SWPPP) to document the step s they will take to comply with the terms, conditions

, and effluent limitations of the permit. EPA's guidance manual, "Developing Your Stormwater Pollution Prevention Plan: A Guide for Construction Sites,” (EPA 833/R

- 060

- 04, May 2007; available on EPA's

w ebsite at http://www.epa.gov/npdes/stormwater) describes the SWPPP process in detail. As
detailed in the 2008 CGP, the SWPPP must include a description of the construction site with maps showing drainage patterns, discharge points, and locations of discha rge controls; a description of the control measures used; and inspection procedures. The CGP does not require permittees to submit a SWPPP to the permitting authority; however a copy must be readily available to authorized inspectors during normal busines s hours. Other requirements in the CGP include conducting regular inspections and reporting releases of reportable quantities of

hazardous substances.Page 2 of 15

Effluent Limitations Guidelines and Standards, and The C&D Rule

NPDES permits issued for construction stormwater discharges are required under Section 402(a)(1) of the CWA to include conditions for meeting technology

- based effluent limitations guidelines established under Section 301 and, where applicable, new source performance
standard established under Section 306. Once an effluent limitations guideline (ELG) and/ or new source performance standard is promulgated that applies to a particular point source category , NPDES permits for those point sources are required to incorporate limits based on such

lim itations and standards. See 40 CFR 122.44(a)(1). Prior to the promulgation of national ELGs and standards, permitting authorities incorporate technology

- based effluent limitations on a best professional judgment or “BPJ” basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

For all of the previous EPA

- issued CGPs, there were no ELGs or new source performance

standards that applied to stormwater discharges from construction and development activity. Therefore, the effluent limits in the 2008 CGP (and its predecessors) are (and have been) BPJ

type requirements. It is only now with the promulgation on December 1, 2009 of the C&D rule ( See 74 Fed. Reg. 62996, and 40 CFR 450.21) that there is a set of national ELGs and new source performance standards that apply to discharges from construction sites, and therefore must be incorporated into the CGP. Because this next issuance of the CGP will for the first time incorporate the C&D rule requirements , the draft CGP includes a number of significant
modifications to the 2008 CGP . A summary of the C&D rule non

- numeric and numeric requirement s is included below.

Non

- Numeric Effluent Limits

The C&D rule’s non

- numeric effluent limitations are structured to require permittees to first prevent the discharges of sediment and other pollutants through the use of effective planning and erosion control measures; and second, to control discharges that do occur through the use
of effective sediment control measures. Permittees are also required to implement a range of pollution prevention measures to limit or prevent discharges of pollutants including those from dry weather discharges.

The non

- numeric effluent limitations are designed to prevent the mobilization and stormwater discharge of sediment and sediment

- bound pollutants, such as metals and nutrients, and to prevent or minimize exposure of stormwater to construction materials, debris and other sources of pollutants on construction sites. In addition, these no n

- numeric effluent limitations limit the generation of dissolved pollutants, such as nutrients, organics, pesticides, herbicides and metals that may be present naturally in the soil on construction sites, such as arsenic or selenium, or may have been contr ibuted by previous activities on the site such as agriculture or industrial. These pollutants, once mobilized by stormwater, can detach from the soil particles and become dissolved pollutants. Once dissolved, these pollutants would not be removed by down

- slope sediment controls. Source control through minimization of soil erosion is therefore the most effective way of controlling the discharge of these pollutants.

The C&D rule’s non

- numeric effluent limits are as follows:

a. Erosion and Sediment Cont rols: Permittees are required to design, install and maintain effective erosion controls and sediment controls to minimize the discharge of pollutants. At a minimum, such controls must be designed, installed and maintained to:

i. Control stormwater volume a nd velocity within the site to minimize soil erosion;

ii. Control stormwater discharges, including both peak flowrates and total stormwater volume, to minimize erosion at outlets and to minimize downstream channel and streambank erosion;Page 3 of 15

iii. Minimize the amount of soil exposed during construction activity;

iv. Minimize the disturbance of steep slopes;

v. Minimize sediment discharges from the site. The design, installation and maintenance of erosion and sediment controls must address factors such as the amount, frequency, intensity and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, including the range of soil particle sizes expected to be present on the site;

vi. Provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration,
unless infeasible; and

vii. Minimize soil compaction and, unless infeasible, preserve topsoil.

b. Soil Stabilization Requirements: Permittees are required to, at a minimum, initiate soil stabilization measures immediately whenever any clearing, grading, 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 r esume for a period exceeding 14 calendar days. Stabilization must be completed within a period of time determined by the permitting authority. In arid, semi

- arid, and drought

- stricken areas where initiating vegetative stabilization measures immediately i s infeasible, vegetative stabilization measures must be initiated as soon as practicable.

c. Dewatering Requirements: Permittees are required to minimize the discharge of pollutants from dewatering trenches and excavations. Discharges are prohibited unl ess managed by appropriate controls.

d. Pollution Prevention Measures: Permittees are required to design, install, implement, and maintain effective pollution prevention measures to minimize the discharge of pollutants. At a minimum, such measures mus t be designed, installed, implemented and maintained to:

i. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge;

ii. 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; and

iii. Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures.

e. Prohibited Discharges: The following discharges from C&D sites ar e prohibited:

i. Wastewater from washout of concrete, unless managed by an appropriate control;

ii. Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds and other construction materials;

iii. Fuels, oils, or other pollutants used in vehicle and equipment operation and
maintenance; and

iv. Soaps or solvents used in vehicle and equipment washing.

f. Surface Outlets: When discharging from basins and impoundments, permittees are required
to utilize outlet structures that withdraw water from the surface, unless infeasible.

This Fact Sheet will detail how EPA proposes to incorporate these requirements into its
draft CGP. The discussion will include a summary of each provision, the Agency’s rationale forPage 4 of 15

proposing the provision in this wa y, and a comparison between the proposed provision and the requirements of the 2008 CGP.

Numeric Effluent Limit

EPA also finalized as part of the C& D rule a numeric limit for turbidity that applies to sites disturbing 10 or more acres at a time. Sites that are required to comply with the numeric limit

must also meet the non

- numeric effluent limits described above. EPA is phasing in the numeric
efflu ent limit over four years to allow permitting authorities adequate time to develop monitoring requirements and to allow the regulated community time to prepare for compliance with the
numeric effluent limitation. Construction sites that disturb 20 or more acres at one time will be required to conduct monitoring of discharges from the site and comply with the numeric effluent limitation beginning August 1, 2011 (18 months after Februeary 1, 2009, the effecte date of the rule). Construction sites that distu rb 10 or more acres at one time will be required to conduct monitoring of discharges from the site and comply with the numeric effluent limit beginning four years after the effective date of the final rule, or February 2, 2014.

The C&D rule’s numeric eff luent limit at 40 CFR 450.22 is as follows:

a. Beginning no later than August 1, 2011 during construction activity that disturbs 20 or more acres of land at one time, including non

- contiguous land disturbances that take place at the same time and are part of a larger common plan of development or sale; and no later than February 2, 2014 during construction activity that disturbs ten or more acres of land area at one time, including non

- contiguous land disturbances that take place at the same time and are p art of a larger common plan of development or sale, the following requirements apply:

(1) Except as provided by paragraph (b) of this section, the average turbidity of any discharge for any day must not exceed the value listed in the following table:

Pollutant Daily Maximum Value (NTU) 1

Turbidity 280

1 Nephelometric turbidity units.

(2) Conduct monitoring consistent with requirements established by the permitting authority. Each sample must be analyzed for turbidity in accordance with methods specified by the permitting authority.

b. If stormwater discharges in any day occur as a result of a storm event in that same day that is larger than the local 2

- year, 24

- hour storm, the effluent limitation in paragraph (a)(1) of this section does not apply for that d ay.

c. Erosion and Sediment Controls . The limitations are described at § 450.21(a).

d. Soil Stabilization . The limitations are described at § 450.21(b).

e. Dewatering . The limitations are described at § 450.21(c).

f. Pollution Prevention Measures . The limitations are described at § 450.21(d).

g. Prohibited Discharges . The limitations are described at § 450.21(e).

h. Surface Outlets . The limitations are described at § 450.21(f).

EPA notes that since the promulgation, EPA has discovered that the data used to calculate the numeric limit for turbidity were misinterpreted, and that proper interpretation of this data will likely result in a different numeric limit for turbidity than was promulgated in December of 2009. On August 1 2, 2010, EPA filed a motion with the U.S. Court of Appeals for the SeventhPage 5 of 15

Circuit, requesting the Court issue an order vacating and remanding to the Agency limited portions of the final C&D rule. To address the specific issues raised by petitioners, the m otion also provided that EPA:

“may address (and if necessary take further regulatory action on) certain impacts of the final rule specific to linear gas and electricity utility projects.”

will “solicit site specific information regarding the applicability of a numeric limit” to cold weather sites and to small sites that are part of a larger plan of development that is subject to the numeric limit.

On August 24, 2010 the U.S. Court of Appeals for the Seventh Circuit remanded the matter to EPA, but did not v acate the 280 NTU limit . On September 9, 2010, the National Association of Home Builders (NAHB) filed a motion for clarification (which EPA did not oppose) asking the court to (1) vacate the limit and (2) hold the case in abeyance instead of remanding

the matter to EPA. On September 20, 2010, the Court granted the motion in part by ruling to hold the matter in abeyance pending EPA consideration of the numeric limit and the other
remand issues, but the Court did not vacate the 280 NTU limit. Instead, the Court stated that "EPA may make any changes to the limit it deems appropriate, as authorized by law."

EPA has issued a direct final rule and companion proposal proposing to stay the current numeric limit, which if finalized would indefinitely postpone i mplementation of the 280 NTU limit. Simultaneously, the Agency is preparing the issuance of a proposed rule to correct the numeric
limit. EPA plans to promulgate the corrected numeric limit prior to the final issuance of the new CGP. Therefore, if the numeric limit is promulgated and becomes effective prior to June 30, 2011, EPA will incorporate the final limit into the new CGP. Because EPA plans to incorporate the corrected numeric limit into the final permit, and because the c urrent 280 NTU limit is being stayed, rather than including the 280 NTU limit in the proposed permit, a placeholder reference
to the final numeric limit is included instead.

SIGNIFICANT PROPOSED CHANGES FROM PAST PERMITS

A precursor to examining the cost implications of the proposed permit changes is to

understand the changes that are being proposed. The following is a summary of the significant changes being proposed in this permit.

Eligibility for Emergency

- Related Construction

. EPA propose s to provide immediate authorization on a case

- by

- case basis for construction activities required for response to public emergencies (e.g., tornado, hurricane, flooding). Immediate authorization would enable work that is necessary to avoid imminent endang erment to human health or the environment. The construction operator must still comply with the terms of the permit, and must submit an NOI within 7 days after commencing earth

disturbing activities.

Authorization Process / NOIs

. EPA proposes to increase the “waiting period” from 7 days to 30 days for “new sources.”

The new 30

- day timeframe better accommodates the endangered species and historic properties

- related reviews that must take place prior to authorization. The 30

- day ti meframe does not apply to “secondary operators” (operators who seek permit coverage under the permit for discharges from all or a portion of a site that has already received permit coverage

under the CGP for a “ primary operator ”), operators of emergency

- re lated projects, and new operators of existing permitted dischargers or new sources. Except for emergency

- related projects, who must submit their NOI within 7 days after commencing earth

- disturbing activities,Page 6 of 15

these operators must submit their NOIs at leas t 7 days prior to commencing earth

- disturbing
activities

. EPA also proposes to maximize the use of its electronic NOI, or eNOI, process for authorizing construction discharges by requiring that construction operators seek coverage using the eNOI system. Certain case

- by

- case exceptions, where a “paper NOI” will be allowed, will still exist, but approval by the applicable EPA Region will be necessary first.

Sediment and Erosion Controls

. The proposed permit includes specific requirements that implement t he C&D rule’s sediment and erosion control limits. While many of these requirements are included in the 2008 CGP, the proposed permit includes more specifics in order to properly implement the C&D rule. The following is a list of requirements that can be considered the most significant modifications

to the 2008 CGP:

1. Buffers

– Operators must ensure that any discharges flowing through the area between the disturbed portion of the site and any waters of the United States are treated by an
area of undisturbed natural vegetation that alone or with alternative sediment controls achieves a reduction in sediment loads equivalent to a 50 foot buffer.

2. Installation of Sediment Controls Prior to Construction

– Operators must install and make operational all sediment controls prior to conducting earth

- disturbing activities in any portion of the site

.
3. Sediment Removal Requirements

– Operators are specifically required to remove deposited sediment on the site, tracked out of the site, or accumulated behind sediment

con trols before it compromises the effectiveness of on

- site controls and/or is discharges
to surface waters.

4. Entrance and Exit Points

– Any entrance and exit points created on the site must be
stabilized for a minimum of 50 feet into the site.

5. Storm Drain I nlets

– Controls must be installed and maintained to protect any storm drain inlets to which the site discharges.

6. Chemical Treatment

– Where operators plan to employ treatment chemicals to reduce sediment discharges, they are subject to specific use restri ctions and stormwater control design requirements.

7. Dewatering Practices

– Specific controls and discharge restrictions apply to sites that will discharge groundwater or accumulated stormwater removed from excavations,
trenches, foundations, vaults, or othe r points of accumulation associated with construction activity.

Stabilization Requirements

. The permit includes modified stabilization requirements that define more specifically what EPA expects for temporary and final stabilization. Criteria are propose d for both vegetative and non

- vegetative stabilization that are based on the Revised Universal Soil Loss Equation’s (RUSLE) cover management factor, or “C

- factor” . This permit also retains the 70 percent vegetative cover method that was in the 2008 permit as an option for stabilizing the site.

Pollution Prevention

. Beyond adopting the specific C&D rule requirements for pollution prevention and the prohibition of certain discharges, the proposed permit includes specific location restrictions (e.g.,

locate pollutant

- generating activities 50 feet away from waters of the U.S. and stormwater conveyance channels) and design standards (e.g., install secondary containment or cover activities).Page 7 of 15

Numeric Turbidity Limit

. Due to the promulgation of the C&D rule’s nu meric turbidity limit, EPA includes a reference to that section of the C&D rule (the specific limit to be included once it is recalculated and published), as well as applicability, sampling, and reporting requirements.

Water Quality

- Based Effluent Limits

. The proposed permit includes specific requirements that apply to sites discharging to waters impaired for common pollutants associated with construction activities, such as sediment and nutrients. For such sites, construction activities are subject to add itional requirements, including tighter stabilization deadlines (immediately initiate stabilization if construction in an
area is inactive for 7 days, as opposed to 14 days) and more frequent site inspections. For sites disturbing 10 or more acres at a ti me, the permittees would be subject to the additional requirement to conduct benchmark monitoring of their discharge based on benchmarks that are tied to the receiving water’s water quality criterion. The permit also proposes to include additional require ments for waters designated as Tier 2, Tier 2.5 , or Tier 3 waters.

Site Inspections

. EPA proposes to make explicit the requirement to require operators to visually assess the quality of the discharge (e.g., color, odor, floating, settled, or suspended solids) if the site inspection occurs during a discharge

- generating rain event.

Corrective Actions

. Although the current permit requires corrective action, it does not include specific requirements instructing the permittee as to what conditions trigger such corrective action and what deadlines apply. The proposed permit includes specific triggering conditions for correctiv e action as well as deadlines to fix such problems and document what was done.

Stormwater Pollution Prevention Plan

. The SWPPP requirements are modified in accordance with the proposed changes discussed above. In general, the requirements are more specific, but consistent with the current permit.

Notice of Termination

. EPA proposes to include additional requirements that affect when a site may terminate coverage under the CGP. For instance, beyond enabling sites to terminate coverage when

earth

- disturbing activities have stopped and the site is stabilized, the permit would require the removal of all temporary stormwa ter controls and construction materials, waste, and waste handling devices.

COST IMPLICATIONS OF THE SIGNIFICANT PROPOSED PERMIT CHANGES

In ass essing the cost implications of requiring compliance with the proposed new permit provisions , EPA looked for re quirements that would impose a greater burden on the permittee as compared to the current permit (the 2008 CGP) and any existing ELGs and NSPS (in this case, the C&D rule), with which they would be required to comply with regardless. To help portray

where such “incremental” cost increases occur in the draft CGP, EPA conducted a side

- by

- side analysis of the proposed permit requirements and any corresponding requirements in the 2008

CGP and the C&D rule. See Appendix 1.

EPA notes that the regulatory requirement to incorporate applicable ELG s and NSPS is

non

- discretionary . Because the promulgation of the C&D rule compels EPA to incorporate its requirements into any new permits, and because these requirements redefine what isPage 8 of 15

considered to be the techn ology

- based requirements that apply to all permitted sites , where permit provisions are an expression of the C&D rule requirements , it is unnecessary to compare the proposed requirement to the current permit requirements.

Based on the analysis in Append ix 1, with respect to requirements proposed in the draft CGP that reflect the C&D rule requirements, EPA found no significant incremental increases in costs between the proposed permit’s requirements and the costs already accounted for in
either the C&D ru le promulgation or the requirements of the 2008 CGP , as discussed below

. With respect to new requirements that are proposed for meeting applicable water quality standards, the only quantifiable increases in cost arise from the new requirement to conduct b enchmark monitoring for the pollutant(s) of concern in impaired waters, EPA provides an estimate of the expected cost implications below in the section entitled “Water Quality

- Based Effluent Limits”

. Where EPA found there to be a quantifiable cost increa se, which is not already accounted for by the current permit’s requirements or by the C&D rule , is in the incremental change between 2008 CGP and the proposed permit’s frequency and scope of site inspections. The following is a
more detailed discussion of EPA’s rationale supporting these conclusions.

Changes to the NOI Form and Authorization Process

The NOI form (Appendix G) has been modified from the 2008 NOI to include additional questions relating to the receiving water and its impairment status, the buffer, and the applicability of the numeric turbidity limit. The receiving water and impairment q uestions are intended to inform the Agency about the eligibility status of sites discharging to impaired waters or waters designated as Tier 1 or 2 for antidegradation purposes, and of sites subject to additional requirements. These questions enable EPA t o better ensure compliance with the NPDES regulations at 40 C FR 122.4(i), 122.44(d), and 131.12. Construction sites have always been subject to these requirements, and the answers to the NOI questions will have been determined in advance by the site opera tor in order to determine if he/she is eligible for permit coverage.

The NOI questions related to the buffer and the numeric turbidity limit inform EPA about the C&D rule requirements to which each site will be subject. The answers to these additional NOI questions will need to be determined in advance of completing the NOI, as the operator prepares his/her SWPPP and complies with the pre

- disturbance requirements of the permit. For this reason, answering the additional questions will not require addit ional work on the part of the operator. Furthermore, EPA believes that any additional time needed to answer the new NOI questions will be offset by the administrative efficiency of submitting the form electronically through the eNOI system. For further i nformation regarding EPA’s estimated costs associated with completing and submitting the NOI, refer to the Agency’s Information Collection Request (ICR) for the NPDES Program (OMB Control No. 2040

- 0004, EPA ICR No. 0229.19

– December 2008)

.
Provide and Mai ntain Vegetated Buffer

The draft permit requires that in order to minimize sediment discharges, the operator must ensure that any discharges through the area between the disturbed portions of the site and any waters of the U.S. are treated by an area of u ndisturbed natural vegetation that alone or through the use of additional sediment and erosion controls achieves a reduction in sediment load equivalent to that achieved by a 50

- foot buffer of undisturbed natural vegetation. EPA provides three different a lternatives for meeting this requirement, which include:

(1) provid e and maintain a 50

- foot vegetated buffer between the areas of disturbance and any waters of the U.S. located on or immediately adjacent to the site;

(2) provide an undisturbed vegetated buffer area that is less than 50 feet around waters of the U.S. locatedon or immediately adjacent to the site that is supplemented byPage 9 of 15 additional sediment and erosion controls , which in combination achieves the equivalent

se diment load reduction as a 50

- foot buffer; or

(3) if it is infeasible to provide an undisturbed vegetated buffer area of any size around waters of the U.S. located on or immediately adjacent to the site, implement sediment
and erosion controls that achieve the equivalent sediment load reduction as a 50

- foot
buffer.

As a companion to these requirements , E PA has developed guidelines in Appendix M for operators to use.

EPA believes that the buffer requirements do not impose an incremental cost increase to affected site operators

, as compared to the costs already accounted for in the promulgation of the C&D rule (see 40 CFR 450.21(a)(6)) or which are not offset by the flexibility provided in the proposed requirements , as discussed below

. First , many of the sites that will be permitted under

the new CGP are already subject to state and/or local buffer or waterfront setback requirements that provide some minimum area that is to be left undisturbed and naturally vegetated. EPA notes that because these waterfro nt setback requirements are predominantly established at the local or county level, and determining the exact buffer width of all of these jurisdictions would have been exceedingly difficult, the Agency examined a subset of these county and local governmen t requirements. What EPA found in its research is that t hese buffer requirements range in width from 25 to 300 feet depending on the area as well as the water being protected. See further discussion of state and local buffer requirements in Section VII.1 .2
and Tables 4 and 5 of the Fact Sheet. Therefore, EPA believes that many construction operators area already required to leave some minimum area of land between a waterbody and their construction activities undisturbed such that the proposed permit’s re quirement to provide a
buffer is not a new burden.

Second, the requirement to provide a buffer or buffer alternative does not impose upon construction operators a cost burden in the sense of mandating the outlay of additional money for purchasing equipment, supplies, or staff, or to make improvements to the existing vegetated

area near the water. If the operator chooses the 50

- foot buffer option, t he permit requires simply that whatever vegetation exists in the buffer area at the time of construction be left alone

. Alternatively, where the operator chooses to demonstrate that retained buffer area and/or
additional sedim ent and erosion controls achieve the sediment load reduction of a 50

- foot buffer, he/she merely has to demonstrate that such controls will achieve this reduction. EPA has already provided information the operator can use to estimate the sediment load redu ction
from a 50

- foot vegetated buffer in the areas where the CGP is effective (see Appendix M). With this information, the operator can choose to use USDA’s RUSLE

- series models or the WEPP erosion

model , which are downloadable from the internet at no cost to estimate the sediment load capture rate of different types of sediment and erosion controls. Alternative ly , the operator can elect to use commercially available models ; however, these models may cost $1500 to purchase. Therefore, it is only if the o perator needs to purchase a more sophisticated model for reasons other than the buffer requirements in the draft permit, would he/she bear additional cost burden. For this reason, EPA has assumed that this requirement is cost neutral on the operator.

Stab ilization Requirements

The proposed permit establishes specific deadlines for initiating and completing stabilization on the inactive portions of construction sites. The proposed permit differs from its predecessor in that it specifies additional criteri a that will be used to determine whether a site has been adequately stabilized. These new criteria are based on the effectiveness of certain common stabilization practices in preventing erosion, which is established through thePage 10 of 15

performance of standardized testing procedures. See Appendix I for additional information on
the stabilization criteria.

These requirements do not impose incremental cost increases on site operators. Permittees under the 2008 CGP were already subject to the same deadlines to init iate stabilization, even though these requirements have now been made part of the C&D rule’s ELGs and NSPS, and thus nationally required. The additional deadlines established for completing
stabilization is EPA’s articulation of the following C&D rule req uirement: “ s tabilization must be completed within a period of time determined by the permitting authority. ” See 40 CFR 450.21(b). With respect to the stabilization criteria, EPA notes that existing permittees under the 2008 CGP are already subject to the 70 percent vegetative cover criterion, which is retained in the proposed permit. The additional specificity in the proposal regarding the minimum stabilization effectiveness to be achieved is necessary to properly implement the C&D rule requirement to “c omplete” stabilization within a designated period of time. Rather than leaving it up to the permittee to determine when stabilization is completed, EPA has chosen to define this in the permit as an expression of the C&D rule requirement. Taking this into account, it is

EPA’s view that the additional specificity in the stabilization requirements do not impose incremental cost increases that were not already accounted for in promulgating the C&D rule.

Numeric Turbidity Limit

In this proposed permit, EPA includes requirements that implement the C&D rule’s numeric turbidity limit at 40 CFR 450.22, including provisions for applicability of the limit (consistent with 40 CFR 450.22(a)), monitoring (consistent with 40 CFR 450.22(a) (1)), and reporting. These requirements are new to construction sites, however, they are included in the permit in order to implement the C&D rule . The costs associated with compliance with these requirements were accounted for in the cost and benefit an alyses conducted as part of the C&D rule’s promulgation. Because it is the C&D rule, and not the CGP, that imposes upon applicable sites the requirement to comply with the numeric effluent limit, the proposed permit’s adoption of the numeric limit and rel ated requirements to monitor discharges and to report the results to EPA does not impose incremental costs not already accounted for in the C&D rule. For further information regarding the costs of complying with the numeric effluent limit, refer to EPA’s ICR Supporting Statement for Turbidity Monitoring Requirements for Construction Sites Regulated by the Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (40 CFR Part 450) (EPA ICR No. 2336.02) (see App endix 4) and EPA’s Economic Analysis of Final Effluent Limitations Guidelines and Standards for the Construction and Development Industry at http://water.epa.gov/scitech/wastetech/guide/construction/upload/2009_12_8_guide_constru ction_files_economic.pdf

. The numeric turbidity limit applies to sites in the draft CGP in the same manner as prescribed in 40 CFR 450.21(a). Where there are differences between the C&D rule and the
draft CGP is in the level of detail relating to the monitoring and analysis requirements. The C&D rule provided ultimate discretion to per mitting authorities to impose appropriate sampling and analysis requirements to ensure compliance with the numeric turbidity limit. 40 CFR 450.21(a)(2) requires that applicable construction sites “ c onduct monitoring consistent with requirements
establishe d by the permitting authority” and that “e ach sample must be analyzed for turbidity in accordance with methods specified by the permitting authority. ” In the preamble to the rule, EPA established as the baseline for any monitoring requirements the need to “pursuant to the NPDES regulations ... specify the type, interv al, and frequency of sampling sufficient to yield data which are representa tive of the monitored activity” and must require monitoring for specific pollutants that are limited in the permit. 40 CFR 122.48(b); see also 122.44(j)(1)(i). While the final rule does not enumerate the specific requirements (i.e., frequency, location, etc.) regarding the monitoring of turbidity in discharges from construction sites

, EPA emphasizes thatPage 11 of 15

compliance monitor ing is required of permittees and that pursuant to EPA’s NPDES regulations permitting authorities must specify requirements /and procedures in their NPDES permits for representative sampling to ensure effective monitoring.” See 74 Fed. Reg. 63047.

Alth ough the C&D rule left the specific s of what monitoring requirements to incorporate into NPDES permits to the permitting authority , including such issues as the sampling frequency during any one discharge event and the number of discharge events that must be sampled

, EPA provided recommendations in the rule preamble on how the sampling and analysis requirements could be articulated. EPA’s proposed sampling requirements closely mirror those
which were recommended in the C&D rule preamble

. The following is a summary of those
recommendations and corresponding draft CGP requirements :

Sampling frequency:

- “ EPA would, however, discourage the practice of allowing the number of monitoring samples to vary arbitrarily merely to allow a site to achieve a desired av erage concentration, i.e., a value below the limitation that day. ” 74 Fed. Reg. 63048

. The proposed permit requires a minimum of 3 samples of each discharge point per day during the time the discharge is occurring. Part 3.3.2.

- “ EPA expects that enforcemen t authorities would prefer, or even require, monitoring samples at some regular, pre

- determined frequency. ” Ibid. See above, and Part
3.3.2.

- “In general, EPA expects that, at a minimum, three samples per day will need to be collected at each discharge po int while a discharge is occurring. In reviewing its data used as a basis for the limitation, EPA notes that 95 percent of daily values are based upon three or more samples per day which demonstrates the need for multiple samples.” Ibid. EPA has adopted this same minimum 3 sample

- per

- day approach for the proposed permit. Part 3.3.2.

- “... the permit could specify that sampling must begin within one hour of the start of the discharge, and must continue until the discharge ends or until the end of the working day.” Ibid. EPA has adopted this requirement. Part 3.3.2.

- “The permit could also include exceptions to the minimum sampling frequency for circumstances such as adverse weather conditions (such as high winds or lightning) or intense rainfall, which would cause a reasonable person to believe that the safety
of the sample collection personnel would be in jeopardy. In such instances, the permit might specify that sampling be conducted as soon as it is deemed safe by the sampling personnel. If, at the start of the next working day, there continues to be a discharge, then sampling should resume until the discharge ends or until the end of the working day.” 74 Fed. Reg. 63048

- 63049. EPA has adopted this exception. Part

3.3.1.4.

- “NPDES permitting authorities will also need to determine the minimum number of discharge events during which monitoring is required. It is EPA’s general view that any storm event or snowmelt that generates a discharge from the construction site should be monitored since this is the surest way to determine the effectiveness of the site’s passiv e controls during all phases of active construction.” 74 Fed. Reg. 63049. EPA has adopted this requirement. Part 3.3.1.1.

Testing methodology:

- “The permitting authority must specify in NPDES permits the requirements concerning the proper use, maintenance , and installation, when appropriate, of monitoring equipment or methods used. 40 CFR 122.48(a). Thus, permittees may elect to use automated samplers and/or turbidity meters with data loggers, if appro ved by thePage 12 of 15 permitting authority.” 74 Fed. Reg. 63049. EPA has included testing specifications in the proposed permit. Part 3.3.6 and 3.3.7.

- “ Each sample must be analyzed for turbidity using methods approved by the permitting authority, but EPA expects that the use of a properly calibrated field
turbidimeter i s sufficient.” 74 Fed. Reg. 63049. EPA requires the use of a properly
calibrated turbidimeter. Part 3.3.7.1.

Reporting:

- “EPA is also leaving up to the permitting authority the applicable reporting requirements on the permittees sampling of their dischar ges from C&D sites.” 74 Fed. Reg. 63049. EPA requires monthly reporting of all turbidity sample results. Part 3.3.10. Reporting of sampling results is required of all NPDES permittees in 40 CFR 122.41(l)(4).

Monitoring locations:

- “The numeric limitation applies to all discharges from C&D sites.” 74 Fed. Reg. 63049. The proposed permit incorporates this requirement. Part 3.3.3.

Sampling times:

- “... it is EPA’s general view that sampling should be conducted, at a minimum, during normal business hours at a project. This can generally be considered to be between the hours of 6 a.m. and 6 p.m., or when workers are normally present on the
construction site. The exception would be if unsafe conditions, such as heavy rain or lightning, would cause a reasonable person to determine that sampling would be dangerous.” 74 Fed. Reg. 63050. The proposed permit adopts this requirement. Part

3.3.1.3.

Notification to permitting authorities:

- “Although not a requirement in today’s rule, permitting authorities may want to consider requirements in their permits and consider mechanisms by which permittees would notify the permitting authority when they have exceeded the 10 acre disturbed land threshold and monitoring would be required at a particular project.” 74 Fed. Reg. 63050. EPA requires notification in the NOI form.

EPA estimated the costs associated with complying with the numeric turbidity limit, including samplin g, analysis, and reporting , as part of the promulgation of the C&D rule . These estimates relied on assumptions that the monitoring requirements would follow the recommendations

enumerated above. Because the cost of sampling and reporting was accounted fo r in the promulgation of the C&D rule, and because the proposed permit closely follows the recommended sampling and reporting requirements that were assumed as part of the estimated cost burdens associated with compliance with the numeric turbidity limit, the proposed permit provisions do not impose incremental cost increases on permittees above that which was already estimated for compliance with the rule

. Water Quality

- Based Effluent Limits

The proposed permit includes requirements, similar to past CGPs, for permittees to control discharges as necessary to meet applicable water quality standards. The proposed permit differs from its predecessors in that it imposes several additional requirements on sites discharging to waters that are impaired for sedime nt or nutrient

- related pollutants, which are commonly associated with construction discharges. These additional requirements include the following:Page 13 of 15 A requirement to provide and maintain a minimum 100

- foot buffer for any waters of the U.S. flowing through or immediately adjacent to the construction site; A requirement to conduct more frequent inspections; A requirement to initiate and complete stabilization on inactive, exposed areas

sooner than other sites; and A requirement to conduct benchmark monitoring for construction activities that
disturb 10 or more acres at a time.

See Part 4.2.3.3 and Appendix K

. It is EPA’s view that the inclusion of these additional requ irements for certain sites does
not constitute an incremental increase in cost burden to af fected permittees because they were already subject to the requirement to control their discharges as necessary to meet applicable water quality standards . See 40 CFR 122.44(d). The requirement in the 2008 permit to comply with these water quality standards

- related requirements imposes on its permittees the regulatory burden of taking the measures that are necessary to ensure that their discharges are

controlled as necessary to me et applicable water quality standards. The additional water quality

- based effluent limits in the proposed permit are included as a clarification from earlier permits of what this permit requires of its pe rmittees in order to meet these regulatory mandates

, and therefore are no more burdensome than the current 2008 CGP requirements

. The following discussion elaborates on EPA’s rationale for arriving at the conclusion that these requirements do not impose an incremental increase in regulatory burden on CGP permittees:

Additional Inspection Requirements: Part 4.2.3.4 of the proposed permit requires site inspections once per week and with in 24 hours of a storm event of 0.25 inches or greater (instead of once every 2 weeks and within 24 hours of a storm event of 0.25 inches or greater) and daily visual examinations of the site’s stormwater controls and cleanliness.
EPA views these additional inspection requirement s as necessary to ensure compliance with the regulatory protections for water quality standards per 40 CFR 122.44(d). EPA’s basic belief is that by conducting inspections at this frequency the Agency is assured that site operators w ill be able to prevent problems with sediment or nutrient discharges before they occur. These additional requirements are not an incremental burden increase because they merely elaborate on what is necessary to comply with the 40 CFR 122.44(d) requirement s.

Faster Stabilization Timeframes: Part 4.2.3.3 of the proposed permit imposes on sites discharging to sediment or nutrient

- impaired waters the requi rement to stabilize disturbed

areas where construction activities have temporarily or permanently ceased sooner than other sites. For these sites, stabilization must be initiated within 7 days of the cessation of
construction activities on exp osed areas, and the initial seeding and mulching must be completed within 3 days after initiating stabilization. EPA believes that this tighter
stabilization timeframe will help ensure that exposed areas, which are highly erodible and unless properly covered result in significant sediment discharge, are not contributing sediment to these impaired waters.

These tighter stabilization timeframes do not impose an incremental increase in burden. First, EPA specifically anticipated in the C&D rule preamble that, when considering how to use its discretion in translating the non

- numeric effluent limitations into construction permits, “ the permitting authority may determine that it is necessary for permitees to initiate soil stabilization measures when construction activity has permanently or temporarily ceased and will not resume for a period exceeding 7 calendar days, as

oppo sed to 14 calendar days.” See 74 Fed. Reg. 63016. For this reason, the proposed permit’s adoption of the 7

- day stabilization timeframe is consistent with what EPAPage 14 of 15 anticipated would be one of the ways permitting authorities could choose to implement

the r equirement at 40 CFR 450.21(b). Second, it is EPA’s opinion that the 7

- day stabilization timeframe, much like the 14

- day stabilization timeframe, does not impose incremental costs on construction operators. The deadline to initiate stabilization is a
fun ction of the operator’s already ongoing construction planning process, and therefore altering a deadline to initiate stabilization should not affect the construction operator’s bottom line costs. In other words, the requirement for certain sites to initia te stabilization of exposed areas within 7 days of ceasing earth

- disturbing activities rather than 14 days does not require the operator to purchase additional equipment or resources. Instead, the timeframe is absorbed as part of the other activities for which the operator must

schedule.

Water Quality Benchmark Monitoring: As an additional layer of assurance that discharges from larger sites are not causing or contributing to water quality standard exceedances and that they are controlled as necessary to meet these standards, the proposed permit requires that sites disturbin g 10 or more acres at any one time conduct benchmark monitoring to demonstrate that the quality of their discharge is at or below the water quality criteria assigned to their receiving water. See Part 4.2.3.2. EPA anticipates that many sites will choose to phase their construction activities so that, similar to the exception that applies to the numeric turbidity limit, disturbances are kept to less than 10 acres at a time and therefore are not subject to the benchmark monitoring requirement. F or sites th at are unable to phase their activities to avoid triggering the benchmark requirement, EPA acknowledges that the proposed permit is for the first time explicitly requiring sa mpling to demonstrate compliance, and that for this

reason there are not insubstan tial costs associated with sampling, analysis, and reporting for those sites affected by the requirement. EPA estimates that this requirement will require 1,085 hours annually to comply with for 41 permitted sites , or an estimated 26.5 hours per site. Th is estimated workload translates to a total yearly cost of $67,874 for all sites combined, or $1,655.5 per site. For an explanation of EPA’s cost estimates see Appendix 2.

Site Inspections

The proposed permit requires permittees to conduct inspections once every 14 days and within 24 hours following storm events of 0.25 inches or more. These requirements differ from the current permit, which provides permittees with a choice of conducting weekly inspections or bi

weekly inspections in addition to inspe ctions conducted within 24 hours of storm events measuring 0.50 inches or more. The proposed permit also requires permittees to conduct a visual observation of the discharge, to the extent that it occurs during normal working hours . The 2008 CGP requires permittees to include as part of the inspection report “a description of any discharges occurring at the time of the inspection”, but did not include specific requirements as

to what w as supposed to be documented.” See Part 4.H.4 of the 2008 CGP. Therefore, despite the fact that the 2008 CGP included a related requirement to the proposed visual observation requirement, EPA will consider the new level of detail in the draft CGP to amount to an increase
in cost burden to affected permittees.

EPA has determined that the cost of complying with these modified inspection requirements will result in an incremental cost increase to some permittees. Appendix 3 includes
an estimate of the incremental cost increases resultin g from both the change in storm size from 0.50 inches to 0.25 inches, and in the requirement to conduct visual discharge observations. EPA estimates that compared to the 0.50 inch storm threshold for conducting inspections, the 0.25 inch proposed threshol d would result in an increase of 5,424 additional inspections annually, or 2.3 additional inspections annually per permittee. Taking into account the proposed new requirement to visually observe the quality of the discharge, EPA estimates that the burden hoursPage 15 of 15

will increase by an estimated 4,896 hours annually, which amounts to an incremental increase in $146,874 of burden hours annually or $62 for each permittee. Refer to Appendix 3 for a the underlying assumptions and data used to estimate these increme ntal cost increases.