EPA retreats again from planned regulation of construction runoff

EPA has dropped plans to regulate pollution washing off construction sites for the second time in as many years.

The agency slipped the proposed regulation off the table last Friday, eight months after it sent the draft rule to the White House Office of Management and Budget for review.

Homebuilders called the scuttling of the proposal a "big victory for home buyers." Housing developers had lobbied fiercely against the proposal, questioning EPA's pollution-reduction targets and arguing to OMB and the Small Business Administration that the rule would dramatically increase building costs and spur further job losses in the already battered construction and real-estate sectors.

"I think we did have OMB's and SBA's ears on this issue," said Ty Asfaw, an environmental policy analyst with the National Association of Home Builders who attended a key meeting last January with the Obama administration officials.

An EPA spokesman said the environmental agency and not the White House -- which is battling perceptions that it is anti-business -- decided to sideline the proposal. EPA, the spokesman added, plans "in the near future" to gather more information about the effectiveness of existing stormwater-treatment technologies at construction sites before proposing a new rule.


The homebuilders group had argued to Obama administration officials that EPA had relied on scant data and set a pollution-reduction target based on the capabilities of advanced treatment systems, even though the agency had endorsed less-costly "passive" treatment.

EPA, the group said, underestimated the proposal's compliance costs and ignored existing industry efforts to curb pollution. It also said the proposal's requiring sites as small as 10 acres to comply would unnecessarily hurt small businesses.

"Stormwater management must be straightforward, affordable and workable," NAHB Chairman Bob Nielsen said in a statement. "In its calculations, EPA relied on questionable data, including figures obtained from the vendors that would have supplied the expensive systems home builders would have been required to use. That's no way to come up with national policy."

The homebuilders group estimated compliance costs at $10 billion a year, more than 10 times EPA's estimate of $953 million for compliance with an earlier version of the construction-runoff rule.

At issue are EPA's efforts to curb so-called nonpoint pollution that is washed and blown into waterways from construction sites, farms, roads and parking lots. Among key nonpoint contaminants are stream-choking sediment and fertilizers, oil, heavy metals and toxic chemicals.

Though such contaminants are supposed to have been addressed by the 1972 amendments to the Clean Water Act, EPA has spent most of its time controlling pollution discharged by industrial facilities and sewage treatment plants.

EPA's inability to curb nonpoint pollution has taken a toll on waterways. According to 2009 EPA data, almost half of the nation's river and stream miles and about two-thirds of its lakes, bays and estuaries are considered impaired.


A lawsuit by the Natural Resources Defense Council (NRDC) prompted a federal judge in 2006 to give the agency a December 2009 deadline to regulate construction pollution.

The rule proposal rolled out by EPA that month established monitoring requirements and set numeric limits on the turbidity, or murkiness, of construction runoff. The rule would have applied to discharges from "point sources," such as drainpipes, at construction sites larger than 10 acres and would have been fully phased in by 2014.

Limiting turbidity produces a dual benefit to water quality. It keeps soil from washing into the water and also cuts down on metals, chemicals and nutrients that cling to sediments. Turbidity has contributed to the impairment of at least 26,000 miles of rivers and streams, 1 million acres of lakes and reservoirs, and 240 square miles of bays and estuaries, EPA said.

"The ultimate goal here -- getting objective pollution control standards in place for construction sites -- is critical, given that pollution from these operations can cause serious problems," said Jon Devine, senior attorney with the water program at NRDC.

The homebuilders group sued EPA over the December 2009 proposal, questioning the agency's data and pointing out what EPA later conceded was a calculation error in setting the turbidity limit. EPA put the limit on hold and agreed to reconsider the number.

Last December, EPA crafted another rule proposal and sent it to the White House.

On Jan. 28, representatives from the homebuilders group met with officials from OMB, the Council on Environmental Quality and the Small Business Administration to press their case for throwing out the latest rule.

The homebuilders offered documents saying the corrected EPA regulation was derived from the same data on which the previous rule had been based.

The group also argued that EPA erred by setting the turbidity limit based on advanced treatment capabilities, when the agency had endorsed the use of less expensive, passive treatment. Passive treatment options would involve the use of membranes or liners that allow sediment and particles to quickly settle out of collected stormwater, as opposed to advanced techniques that rely on pumps, filters and chemical treatments.

"They did not collect data from a lot of construction sites, so the numeric limit was based on very few locations," the homebuilders association's Asfaw said of EPA. "We still think a lot of the data that was used to develop the limit was based on an active treatment system."

NRDC's Devine said he supports EPA's efforts to collect more data and get the rule right but urged the agency to move quickly.

"We agree that it should be done well," Devine said. "At the same time, we expect EPA to do this without delay, as this standard's revision has been in the works for many years."

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