Construction contractors are in a quandary as a result of a recent action by a federal appellate court. The 7th U.S. Circuit Court of Appeals has refused to grant an Environmental Protection Agency request to vacate the numeric limit in effluent limitation guidelines (ELG) for construction stormwater, which took effect in December 2009.

In August, EPA asked the court to vacate the numeric limit and remand parts of the regulation back to the agency so it could develop a new limit. In its brief, EPA said the data it had used to arrive at a limit of 280 nephelometric turbidity units (NTU) were “flawed” and that it “had improperly interpreted the data.” On Sept. 20, the court denied EPA’s request but also said the agency could proceed with revising parts of the rule. EPA has until February 2012 to develop new guidelines.

As a result, states are forced to move forward using a numeric limit in their permits that is at least as stringent, if not more so, than EPA’s 280 NTU, even though EPA itself has said the number is unrealistic, says Ty Asfaw, environmental policy analyst with the National Association of Home Builders, one of the petitioners in a lawsuit challenging EPA’s new effluent guidelines. “It’s pretty much in EPA’s court,” Asfaw adds. “Unless they decide to take action, the states are put in the position where they have to adopt the ELG.”

“It’s a real problem,” agrees Leah Pilconis, senior environmental adviser to the Associated General Contractors of America. “Even though EPA has admitted it can’t support the 280 standard, it does remain in the reg,” she says. Pilconis adds that AGC is working with contractors to educate them about monitoring stormwater turbidity levels. Eventually, some numeric limit, although probably not the 280 mark, is likely to be adopted, she says.

So far, three states—Maryland, Oregon and Washington—have incorporated the new 280 NTU limit in their draft permits and are reviewing public comments. Others probably will follow as they revise their permits, Asfaw says.

EPA says that although the 280 NTU limit legally remains in effect, the agency "is acutely aware of the need to expeditiously address the current numeric limit and is looking at available options. EPA will also proceed quickly with an additional rulemaking to correct the numeric limitation."