Environmental Law

Contact: Andrew Brought; Spencer Fane Britt & Browne LLP (Missouri, USA)

On March 6, 2014, EPA published its final rule for construction activities which will require the use of best management practices (BMPs) in lieu of numeric criteria for turbidity.

In 2009, 74 Fed. Reg. 62996 (Dec. 1, 2009), EPA first promulgated effluent limitation guidelines and standards for the construction and development source category. The rule required owners and operators to:

• Implement erosion and sediment controls;
• Stabilize soils;
• Managed dewatering activities;
• Implement pollution prevention measures;
• Provide and maintain buffers around surface waters;
• Prohibit certain discharges; and
• Utilize surface outlets for discharges from basins and impoundments.

Among the 2014 Final Rule changes are, according to EPA’s Fact Sheet:

(1) Addition of a definition of 'infeasible.' - EPA is making this change because several of the rule requirements allow exceptions in cases where a particular practice is infeasible. Addition of a definition of infeasible will clarify for the regulated community and to permitting authorities when it is appropriate to apply these exceptions.

(2) Revisions to several of the non-numeric requirements. - EPA is making several changes to the non-numeric requirements of the rule in order to provide clarity and allow additional flexibilities for permittees. These include clarifying the applicability of requirements to control erosion caused by discharges, providing additional details on areas where buffers are required and clarifying requirements for soil stabilization, preservation of topsoil and pollution prevention measures.

(3) Withdrawing the numeric turbidity effluent limitation and monitoring requirements.”

The final rule impacting construction site activity will take effect May 5, 2014.