On April 1, 2013, the Environmental Protection Agency (“EPA”) issued a proposed rule to modify certain aspects of stormwater permitting standards for the Construction and Development Point Source Category (“C&D Rule”). EPA promulgated a prior proposed C&D Rule in 2009, which notably established a numeric limitation on the allowable level of turbidity in discharges from certain construction sites.1 Led by the National Home Builders Association, several groups challenged the proposed C&D Rule and filed petitions for review in the Seventh Circuit.2 In particular, these groups contested EPA’s data gathering and analysis used to support the numeric turbidity limit. EPA ultimately acknowledged that the numeric limit was based on insufficient data, and it entered into a settlement agreement that required EPA to propose for public comment certain changes to the C&D Rule. The April 1, 2013 proposed rule is the result.

EPA’s proposed changes to the C&D Rule include the withdrawal of the numeric turbidity effluent limitation and monitoring requirements found at 40 CFR § 450.22(a) and (b). The EPA had agreed to stay the implementation of the numeric turbidity limit while it collected additional comment and data, but the proposed rule confirms that the numeric limits will not be established by the final C&D Rule. 

Additional proposed changes include: (1) incorporating a specific definition for the term “infeasible,” which includes an evaluation of economically practicable control technologies; and (2) clarifying the language used to describe Best Management Practices reflecting the best practicable control technology currently available (“BPT”), best available technology economically achievable (“BAT”), best conventional pollutant control technology (“BCT”) and the new source performance standards reflecting the best available demonstrated control technology (“NSPS”), found at 40 CFR §§ 450.21, 450.22, 450.23 and 450.24, respectively.

While most states (including Ohio and Indiana) are authorized to promulgate state-specific requirements for the management of stormwater from construction sites, interested parties should take note of the opportunity to submit comments to EPA regarding the proposed changes. The full text of the proposed changes is available at 78 Fed. Reg. 19434 (April 1, 2013), and comments must be received on or before May 31, 2013.