On December 1, 2009 the EPA published new effluent limitation guidelines (ELGs) and new source performance standards (NSPS) regulating the discharge of pollutants from construction sites, 40 C.F.R. Part 450.  The guidelines become effective on February 1, 2010.  The EPA expects the new technology-based guidelines to reduce the discharge of sediment and other pollutants from construction sites by 4 billion pounds a year.

The new guidelines are a result of a lawsuit compelling the EPA to promulgate the guidelines; Natural Resources Defense Council v. EPA, 542 F.3d 1235 (9th Cir. 2008).  In 2000, the EPA listed construction sites as pollution point sources under the Clean Water Act.  The EPA proposed draft guidelines regulating discharges from construction sites, but attempted to withdraw those guidelines in 2004.  In response, the National Resources Defense Council, the Waterkeeper Alliance, and the states of Connecticut and New York sued the EPA to compel the EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPS) regulating the discharge of pollutants from construction sites.  The Ninth Circuit upheld the district court’s decision compelling the EPA to issue the ELGs and NSPSs by December 1, 2009.  NRDC v. EPA, 542 F.3d at 1238.

The guidelines establish a technology-based “floor” imposing minimum requirements on construction sites nationwide.  Under the new guidelines construction site owners and operators are required to implement a range of erosion and sediment controls and pollution prevention measures using best management practices.  The technology-based guidelines give owners and operators the flexibility to use different practices based on site-specific demands, as long as they are consistent with the guidelines.

Additionally, the EPA established a numeric effluent limitation for pollutant turbidity for certain construction sites.  Construction activities that disturb 10 or more acres of land must sample discharges for turbidity and not exceed daily maximum turbidity levels.

The guidelines take effect on February 1, 2010.  States issuing construction general permits are required to incorporate the new guidelines into any such permits issued after February 1.  The EPA is phasing in the numeric turbidity limitation over time.  Any construction activity disturbing 20 or more acres of land must meet the numeric turbidity standard by August 2, 2010.  Construction activities disturbing between 10 and 20 acres of land have until February 2, 2014 to comply with the same standard.