New EPA Rules for Constructions Sites

How Do They Affect Home Builders?

Joseph D. Peznola, PE

The spring construction season is upon us and, hopefully, the economy is on the upswing.  The United States Environmental Protection Agency (EPA) has promulgated new regulations that went into effect on February 1, 2010. The following summarizes the new regulations, providing some tips to the home building community on how to comply with these newly enforceable requirements.

The EPA regulates stormwater runoff from construction sites through the National Pollutant Discharge Elimination System (NPDES) permit. All construction sites disturbing one acre or more of land are required to obtain a permit.  The new regulations expand upon the existing requirements to include effluent limitation guidelines and new source performance standards for discharges of stormwater runoff and dewatering effluent from construction sites.

The first part of the regulation change will require modifications to a construction site’s Stormwater Pollution Prevention Plan (SWPPP). NPDES permitting now requires SWPPPs to have constant routine inspections and maintenance of stormwater controls. The second and more daunting change is the implementation of numeric effluent (turbidity) limitations requiring constant sampling and laboratory testing to insure compliance. Compliance will require implementation of higher level and expensive stormwater treatment. That’s the bad news. The good news is the effluent limits are being phased in with the first phase requiring sites with more than 20 acres or more of disturbance to meet the limits by August 1, 2011. The second phase requires sites with 10 acres or more to comply by February 2, 2014.

I am sure you are thinking the last thing we need in this challenging economy is more rules driving construction costs even higher. However, the new rules should not result in an appreciable increase in the cost of construction site management for those in our industry who have been following good stormwater pollution prevention on their sites already. In most cases, the effluent limit requirements can be avoided by phasing your construction activities limiting disturbance to less than 10 acres. Phased tree removal or phased grubbing and quick vegetative stabilization of graded areas can keep open disturbance on most construction sites to less than 5 acres. Please note EPA requirements apply to projects that are part of a “common plan of development or sale”.  Be aware, some have speculated that this requirement could apply to an off-site borrow pit used exclusively for a project.

The new source performance standards include requirements and guidance for erosion and sediment controls, soil stabilization, dewatering, pollution prevention, prohibition on specific discharges and requirements for surface outlets on sediment ponds. All of these changes would be incorporated into a site’s SWPPP..

A SWPPP needs to be more than just a sediment and erosion control plan. It needs to describe all the construction site operator’s activities to prevent stormwater contamination, control sedimentation, control erosion, and otherwise comply with the requirements of the Clean Water Act. The SWPPP written document must describe the pollution prevention practices and activities that will be implemented on the site. It must include descriptions of the site and each major phase of the planned activity, the roles and responsibilities of contractors and subcontractors, and the inspection schedules and logs. It must also document changes and modifications to the construction plans and associated stormwater pollution prevention activities.

New Erosion and Sediment Control Requirements

The EPA’s regulations serve to control stormwater discharges to minimize erosion at outlets, downstream channels and stream banks, provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal, maximize stormwater infiltration, minimize soil compaction and preserve topsoil.

New Soil Stabilization and Dewatering Requirements

Disturbed areas are now required to be immediately stabilized whenever clearing, grading excavation or other earth disturbing activities have permanently ceased in a given area. Areas must be immediately stabilized when disturbing activities are temporarily ceased for more than 14 calendar days. Discharges from dewatering activities, including trenches and excavations, are prohibited unless managed by appropriate controls.

New Pollution Prevention Requirements

The new rules require SWPPPs to address specific methods to minimize discharges of pollutants from equipment and vehicle washing, wheel wash water and all other wash waters. Wash water must be treated in a sediment basin or alternative control that provides equivalent, or better, treatment prior to discharge. Methods must be outlined to minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and other materials present on- site that can be migrated by stormwater. Additionally, sites are required to have chemical spill, leak prevention and response procedures in place to minimize the potential for discharge of pollutants.

New Prohibited Discharges

Wastewater discharges from washout of concrete, cleanout of stucco, paint, release oils, curing compounds and other like construction materials are prohibited. Builders must educate their subcontractors to this prohibition and offer options for control of these wastes. Additionally, fuels, oils, soaps and solvents used in the maintenance and operation of vehicles are prohibited from being released to stormwater discharges.

New Sediment Pond Surface Outlets

When discharging from basins and impoundments, an outlet structure that withdraws water from the surface must now be used if feasible. There are some commercially available skimmers you can consider or your design engineer can provide the contractor with the details needed to construct these devices themselves. These devices need to be inspected and maintained as a stormwater best management practice. During winter conditions, the devices may have to be modified or replaced to address ice formation on sediment ponds.  

 How to Comply

The requirements stated above must now be addressed in your comprehensive SWPPP documentation. The SWPPP is a living document, changing and evolving through the life of a project. A good SWPPP is a tool used by many but solely managed by the documented SWPPP Coordinator. The EPA can, and has, levied fines for non-compliance with NPDES requirements. The SWPPP addresses site evaluation, identifies responsible parties, alerts interested parties to where sensitive receiving waters exist on and off site, outlines erosion and sedimentation control methodologies, describes proper materials handling, dictates inspection schedule and content, describes training protocols and establishes final site stabilization and close out procedures. SWPPPs must be specific to individual sites. Refrain from taking the “boiler plate” approach to SWPPP writing. The whole development team including the site civil engineer, site contractor and sub-contractors should be involved in its development, implementation and modification through the life of a project. 

Turbidity Limitations and Monitoring

The turbidity limitation is the most daunting and costly of the recent regulation changes. As discussed earlier, the requirements can be avoided altogether through phasing projects and limiting cumulative disturbed areas to under 10 acres. If you exceed 10 acres of disturbance, you will need to consult with a trained professional in order to ensure compliance under the new EPA regulations.  The turbidity limitation is 280 NTUs (Nephelometric Turbidity Unit), and the EPA is recommending that each discharge point have samples collected three times a day during active construction. The cost of gathering samples under proper “chain of custody” protocols, laboratory testing and reporting could reach into thousands of dollars per day. More importantly, the implications of discharges exceeding turbidity limits will drive sedimentation control costs even higher.

Removal efficiencies of standard sedimentation control methodologies are dependant on soil type. High clay or fine silt content renders standard methods ineffective in meeting the tough new standards. In these cases, the use of filtration such as in-ground sand filters, geotextile bags or swales with fiber check dams will be required. In some cases polymer or flocculant addition may be necessary. Only a trained professional can analyze the soil type and design a comprehensive sediment control, sampling, monitoring and testing procedure. Again, if possible, it is most economical to avoid having to meet these requirements by phasing project disturbance as described above.

Conclusions

If you have been practicing good site management practices with a comprehensive SWPPP, then you can relax, the new rules will require you tweak some things and keep up the good work. The vast majority of project sites can and will keep soil disturbance below the new thresholds and avoid the costly turbidity limitation requirements. For those who have not followed good pollution control on their site, take heed, this is a real and important part of how we now have to do business. Granted, the EPA does not have a large enforcement staff.  However, all it takes is for one community to get 10 inches of rain over a three day period during a March thaw to have a major sediment breach on a project site. That type of event will get the EPA’s attention. In June of 2008, four of the nation’s largest homebuilders agreed to pay $4.3 million in fines for failing to control runoff at construction sites. The National Association of Home Builders (NAHB) said the settlements with some of its larger members were a positive step that will be used as a model for other homebuilders. Home Builders in Massachusetts need to stay committed to that pledge.

Joseph D. Peznola is a registered Professional Engineer in Massachusetts and New Hampshire. He is a Principal and the Branch Manager of the Marlborough office of Hancock Associate. Hancock Associates is, a leading provider of Civil Engineering, Surveying and Environmental services to the home building industry. He can be reached at jpeznola@hancockassociates.com.