National Research Council findings and proposed effluent guidelines could add up to significant changes.
Many new things
are happening in the erosion and sediment control industry. A new report
released by the National Research Council in late 2008 states that the EPA’s
stormwater program needs a significant overhaul to improve its effectiveness and
the quality of urban streams. In addition, a new proposed rule regarding
effluent limitations guidelines and standards for construction and development
was published in the
Federal Register on November 28, 2008, for
public comment. These two documents have the potential to change the industry
significantly in the coming years.
National Research Council
Report
The EPA
recognized a number of problems with the stormwater program as it is currently
implemented. First, there is limited information available on the effectiveness
and longevity of many best management practices (BMPs), thereby contributing to
uncertainty of their performance. Second, the requirements for monitoring vary
depending on the regulating entity and the type of activity. Finally, state and
local stormwater programs are plagued by a lack of resources for reviewing
stormwater pollution prevention plans (SWPPPs) and for conducting regular
compliance inspections. For all these reasons, the EPA believes the stormwater
program has suffered from poor accountability and uncertain effectiveness at
improving the quality of the nation’s waters.
In light of
these challenges, the EPA requested the advice of the National Research
Council’s Water Science and Technology Board on its stormwater permitting
program. The following tasks guided the council:
- Clarify the mechanisms by which pollutants in stormwater discharges
affect ambient water-quality criteria and define the elements of a “protocol” to
link pollutants in stormwater discharges to ambient water-quality criteria.
-
Consider how useful monitoring is for both determining the potential of a
discharge to contribute to a water-quality-standards violation and for
determining the adequacy of SWPPPs.
-
Assess and evaluate the relationship between different levels of SWPPP
implementation and in-stream water quality, considering a broad range of
BMPs.
- Make recommendations for how to best stipulate provisions in stormwater
permits to ensure that discharges will not cause or contribute to exceedances of
water-quality standards.
- Assess the design of the stormwater-permitting program implemented under
the Clean Water Act.
The following
is a summary of the council’s findings:
-
Radical changes to the EPA’s stormwater program are necessary to reverse
degradation of freshwater resources and ensure progress toward the Clean Water
Act’s goal of “fishable and swimmable” waters.
- To provide meaningful regulation, all stormwater and other wastewater
discharge permits should be based on watershed boundaries instead of political
boundaries.
- The program should integrate stormwater management and land management
practices; it should focus less on chemical pollutants in the stormwater and
more on the increased flow of
water.
- The EPA should adopt a watershed-based permitting system that would
encompass all discharges—including stormwater and wastewater—that could impact
waterways in a particular drainage basin, rather than having many separate
permits.
- Responsibility and authority for implementing watershed-based permits
should be centralized with a lead municipality that would work in partnership
with other municipalities. In addition, lead municipalities should receive
enhanced funding to compensate for increased responsibility.
- The federal government needs to provide more financial support to state
and local efforts to regulate stormwater.
These findings
raise many questions as to what lies ahead in how stormwater will be regulated.
The full report is approximately 624 pages and goes into detail on all these
points and more. If you are interested in reading the report in full, you can
find it online at www.nap.edu/catalog/12465.html.
Proposed Rule for
Limitations Guidelines
In other news,
the EPA is proposing a regulation that would strengthen the existing regulatory
program for discharges from construction sites by establishing technology-based
effluent limitations guidelines. The full title of the document published in the Federal Register is “Effluent Limitations Guidelines and
Standards for the Construction and Development Point Source Category.”
The EPA has
developed effluent guidelines for all types of industrial discharges, including
manufacturing, agriculture, and service industries. As required by the Clean
Water Act, the EPA publishes an Effluent Guideline Program Plan every other year
to announce the agency’s plans to develop new effluent guidelines and revise
existing ones. Effluent guidelines are technology-based national regulations
that control the discharge of pollutants to surface waters and to publicly owned
treatment works (POTWs).
The EPA began
work on developing effluent guidelines for the construction and development
(C&D) industry and listed C&D in the 2000 and 2002 effluent guidelines
plans. The EPA even proposed several options for C&D back in 2002 but
withdrew the proposal two years later. The EPA was sued by the Natural Resources
Defense Council and Waterkeeper Alliance and the states of New York and
Connecticut over the agency’s failure to promulgate effluent guideline
regulations for the C&D industry.
The court found
that EPA has a mandatory duty to promulgate effluent guidelines for an
industrial category listed in the biennial effluent guidelines plan. The court
ordered EPA to publish proposed regulations in the Federal
Register by December 1, 2008, and to publish final regulations for the
C&D category by December 1, 2009. EPA has met the deadline on publishing a
proposed regulation.
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Stream relocation with no BMPs, SWPPP, or permit coverage |
National
effluent guideline regulations typically specify the maximum allowable levels of
pollutants that may be discharged by facilities within an industrial category or
subcategory. Even though the limits are based on the performance of specific
technologies, the guidelines do not usually require the industry to use these
technologies, but rather allow the industry to use any effective alternatives to
meet the numerical pollutant limits. Effluent guidelines may also be based on
BMPs.
The proposed
rule for establishment of effluent guidelines for the C&D industry was
published in the Federal Register on November 28, 2008, and
comments were to be received on or before February 26, 2009. The following is a
summary of the scope of the proposed rule.
The proposed
rule would establish a set of non-numeric effluent limitations requiring
dischargers to provide and maintain effective erosion control measures, sediment
control measures, and other pollution prevention measures to minimize and
control the discharge of pollutants in stormwater and other wastewater from
construction sites. The rule would specify particular minimum BMPs to meet the
effluent limitations requiring effective erosion control and pollution
prevention. This is very similar to requirements in the current regulations.
In addition,
reflecting current requirements in the EPA Construction General Permit (CGP),
sites disturbing 10 or more acres at one time would be required to install a
sediment basin to contain and settle sediment from stormwater runoff. The
proposed rule would require minimum standards of design for sediment basins;
however, alternatives that control sediment discharges in a manner equivalent to
sediment basins would be authorized where approved by the permitting
authority.
Finally,
reflecting the best available technology (BAT) and new source performance
standards (NSPS) levels of control, for certain large sites located in areas of
high rainfall energy and with soils with significant clay content, discharges of
stormwater from the site would be required to meet a numeric effluent limit on
the allowable level of turbidity. The numeric turbidity limit is 13
nephelometric turbidity units (NTUs). The technology basis for the turbidity
limit is active treatment systems, which consist of polymer-assisted
clarification followed by filtration. There are no requirements in the proposed
rule for sampling of the stormwater discharge from a construction site.
Active
treatment systems are typically used in conjunction with other sediment controls
to improve pollutant removals, especially to improve pollutant removals of
fine-grained and slowly settling or non-settleable particles and turbidity
contained in stormwater. Unless sufficient detention time is provided or
additives reimplemented, particles such as clays and fine silts contained in
stormwater discharges from construction sites typically cannot be effectively
removed by conventional stormwater BMPs that rely solely on gravity
settling.
The EPA has
identified several demonstrated technologies capable of achieving significant
reductions of these particles. Electrocoagulation, polymer clarification, and
chitosan-enhanced filtration treatment technologies are demonstrated as being
capable of achieving low levels of turbidity in stormwater discharges.
Electrocoagulation treatment uses
an electrical field to disturb the natural electrical charges of the colloidal
particles suspended in stormwater, enabling the particles to coagulate and
flocculate, thereby facilitating gravity settling.
Polymer
clarification can operate as a batch process whereby a polymer is added to
stormwater contained in a basin. The polymer causes clays and other fine
particles to flocculate and gravity-settle.
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The same creek six months later, with sides eroding because of improperly installed check dams |
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Huge sediment load behind check dam from unstabilized channel of creek one year after construction |
Chitosan-enhanced filtration is a
process that adds a polymer (one produced from the chitin in crab shells) to the
stormwater to promote flocculation. The flocculated stormwater is then passed
through one or more filtration steps and, if permit conditions are met, can be
discharged.
The use of
polymers for flocculation and sediment settling is a fairly new tool being used
on construction sites. Although the rule proposed by the EPA mentions the
possibility of overuse of polymers in these active treatment systems, it
dismisses the risk by saying the EPA is not aware of any studies indicating that
polymer addition to treat stormwater from construction sites using active
treatment systems has been found to pose a significant risk to water quality at
those facilities. The problem with this logic is that polymers currently are not
a “required” tool to facilitate sediment settling; after the rule goes into
effect, they will be a required tool, and many more construction sites will be
required to use polymers, therefore adding new distributors and appliers to the
market. This will cause persons who are unknowledgeable or do not care about the
harmful effects of polymers to overapply them, so they discharge into receiving
streams and adhere to fish and other aquatic organisms, causing aquatic
toxicity. Some polymers have been shown to bind to fish gills resulting in
mechanical suffocation.
It is in the
best interest to everyone in the industry to properly educate all users of
polymers and to create a certification, allowing only those with the proper
education and certification to sell and apply polymers for sediment control on
construction sites. The use of polymers, while providing a good sediment control
system, must be monitored closely to reduce or eliminate the possible added
pollution and environmental degradation it would cause if excess amounts are
released into a receiving stream.
Best
Available Technology
The report
produced by the National Research Council and the new proposed rule for effluent
limitations guidelines have a common theme, and that is the use of best
available technology. As stated in the National Research Council report,
performance characteristics are starting to be established for most structural
and some nonstructural BMPs, but additional research is needed on the relevant
hydrologic and water-quality processes within the BMPs across different climates
and soil conditions.
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Evidence of channel erosion resulting from unstabilized creek and improperly installed BMP |
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Discharge from creek relocation one year after construction |
Such typical
data as long-term load reduction efficiencies and pollutant effluent
concentrations can be found in the International Stormwater BMP Database
(
www.bmpdatabase.org). However, understanding of the processes
involved in each BMP is in its infancy, making modeling of these BMPs difficult.
Seasonal differences, the time between storms, and other factors all affect
pollutant loadings emanating from BMPs. Additional research is needed that moves
away from the use of percent removal and toward better simulation of BMP
performance. Research is particularly important for nonstructural BMPs, which
may be more effective, have longer life spans, and require less maintenance than
structural BMPs. The EPA should be the leader in BMP research, both directly by
improving its internal modeling efforts and also by funding state efforts to
monitor and report back on the success of BMPs in the field.
There has been
a huge inflow of new technology and products available to use for the control of
erosion and sediment discharge. All products should be tested against existing
data for similar devices. They must meet or exceed existing baseline standards
set by the EPA. Testing should be consistent with the production of relevant
data.
What’s
Missing?
One aspect
missing from both the National Research Council’s report and the new proposed
effluent limitations guidelines is enforcement.Without
consistent and across-the-board enforcement of the regulations, they will be as
ineffective as the stormwater regulatory program is currently. In many places
around the country, the regulations are not much more than words on paper. As
stated in the proposed effluent limitations guidelines, 45% of assessed lake
acres and 32% of assessed square miles of estuaries show impairments. Improper
control of stormwater discharges from construction activities is among the many
contributors of sediment, which is one of the major remaining water-quality
problems throughout the United States. Sediment is the leading cause of
water-quality impairment for streams and rivers. Turbidity or suspended solids
impair 695,133 miles of streams nationwide, and 376,832 acres of lakes and
reservoirs have been documented as impaired by turbidity or suspended solids
nationwide.
Would
those numbers be the same if the current National Pollutant Discharge
Elimination System (NPDES) permit program for construction activity, which has
been in effect since 1992, had been properly enforced, if substantial fines had
been issued years ago, and if orders to stop work had been given out on a
regular basis? As you drive across the country today, you can see clear evidence
that enforcement is lacking from the number of construction sites that are
completely out of compliance. Construction sites in every state have trackout of
sediment, lack of a compliant SWPPP on site, and no regular inspection and
maintenance of BMPs. Will these problems stop with the new proposed guidelines
or with changes to the NPDES program as suggested in the National Research
Council report? No—without enforcement, they are just words on paper. The two
things this industry needs more than more regulations and reports are education
and enforcement. Then let’s see how productive the NPDES program is.