Construction groups are pleased that the Environmental Protection Agency will revisit a proposed rule specifying how much sediment stormwater runoff from construction sites can contain.

The EPA announced on Aug. 17 that it would reconsider a proposed new limit so it could gather more data from construction sites “to ensure that these standards to protect Americans' water quality from harmful pollution are flexible and achievable.”

But industry officials are unhappy that the EPA still plans to set a nationwide numeric limit on how turbid the water discharged from construction sites can be. Industry officials claim that approach would be difficult to achieve and that compliance would cost companies billions of dollars annually.

The proposal sought to amend a 2009 final rule on effluent limitation guidelines. But the National Association of Home Builders and Wisconsin Builders Association challenged the 2009 rule in federal court. They claimed that the agency relied on flawed data in developing the sediment number. EPA conceded that it had made a miscalculation and asked the U.S. District Court for the 7th Circuit to put a hold on the case while it reevaluated the data.

The 7th Circuit Court of Appeals then remanded the rule to EPA.

But when EPA submitted a proposed new numeric turbidity limit for clearance by OMB in December 2010, the budget agency and the Small Business Administration warned EPA that the agency's proposed revision would not pass muster if challenged in court, says Ty Asfaw, National Association of Home Builders' environmental policy analyst.

Asfaw says the original limit of 280 nephelometric turbidity units (NTU) was based on a small sample of sites that was “not representative” of a cross section of the country.

Leah Pilconis, senior environmental adviser to the Associated General Contractors of America, says, “We're very pleased that EPA has admitted that what they were working with and relying upon to support the numeric limit is flawed and unsupported.”

But construction organizations are not pleased that EPA still intends to set a new numeric limit that would apply across the country. That approach is more punitive and costly than the current regulatory framework, says Pilconis, and could open contractors up to lawsuits.

EPA estimated the cost for firms to comply with its originally proposed 280 NTU limit at $1 billion annually.