EPA Issues New Regulation for Stormwater Permitting

Background

Since 1992, United States EPA regulations have required that operators of construction activity that involves more than one acre must control stormwater leaving the construction site through use of a Construction General Permit (CGP) and a Stormwater Pollution Prevention Plan (SWPPP). Although many perceive that environmental regulations will be relaxed under the Trump administration, an updated set of requirements for stormwater runoff at construction sites took effect on February 26, 2017.

New regulation includes some changes

EPA issued new 2017 CGP regulation on January 11, 2017, and the regulation still requires compliance with effluent limits and other historical permit requirements, including the development and maintenance of a SWPPP. Some of the interesting areas under the new regulation include the following:

1. Streamlining of the Permit
   EPA streamlined and simplified language throughout the CGP to present requirements in a generally more clear and readable manner. Although the permit is streamlined, most requirements remain unchanged.
2. Types of Discharges Authorized
   The permit clarifies that stormwater discharges from earth-disturbing activities associated with the construction of staging areas and the construction of access roads conducted prior to active mining are eligible for coverage under the CGP. New to the 2017 CGP is an explicit prohibition of non-stormwater discharges of external building wash down waters containing hazardous substances, such as paint or caulk containing polychlorinated biphenyls (PCBs).
3. Effluent Limitations
   EPA made minor revisions to the technology-based effluent limits in the permit to include provisions clarifying the applicability of requirements to control erosion on-site caused by stormwater, providing additional details on areas where buffers are required, and clarifying requirements for soil stabilization, preservation of topsoil and pollution prevention measures.
4. Notice of Permit Coverage
   Construction operators must post a sign or other notice of permit coverage at a safe, publicly accessible location in close proximity to the construction site. New for the 2017 CGP, this notice must also include information informing the public on how to contact EPA to obtain a copy of the SWPPP, and how to contact EPA if stormwater pollution is observed in the discharge. EPA is requiring these additions to make the process of obtaining a SWPPP more readily known to the public and to improve transparency of the process to report possible violations. This requirement will likely generate more public complaints over failures to control stormwater.
5. Stockpiles and Land Clearing Debris Piles
   EPA changed the requirement for temporary stabilization for stockpiles or land clearing debris piles from “where practicable” to requiring cover or appropriate temporary stabilization for all inactive piles that will be unused for 14 or more days, consistent with the temporary stabilization deadlines. EPA made this change to ensure pollutants are minimized from these piles, but is clarifying that the requirement only applies where these piles are not actively being used.
6. Stabilization Deadlines
   The 2017 CGP establishes a modified approach to the stabilization deadlines, which is based on the concept of phasing construction disturbances. Sites that disturb 5 acres or less must complete stabilization within a 14-day timeframe, which is the same timeframe that applied to sites in the 2012 CGP. For sites that disturb more than 5 acres over the course of a construction project, operators may choose between completing stabilization within a 14-day timeframe if they limit (i.e., phase) disturbances to 5 acres or less at any one time, or within a 7-day timeframe if they do not limit (i.e., phase) disturbances to 5 acres or less at any one time. The intent of this approach is to provide an incentive to disturb less land at any given period of time by providing longer stabilization timeframes if the disturbance is kept below a threshold level. The deadline for sites discharging to sensitive waters (regardless of how many acres they disturb overall or at any one time) remains unchanged (within 7 days), and the exceptions for sites in arid, semi-arid, and drought stricken areas and for operators affected by circumstances beyond their control also remain unchanged.
7. Construction and Domestic Waste
   The 2017 CGP now requires operators to keep waste container lids closed when not in use and at the end of the business day for those containers that are actively used throughout the day, or, for waste containers that do not have lids, provide cover or a similarly effective means to minimize the discharge of pollutants. EPA made this change to minimize the exposure of these waste materials to precipitation and stormwater, and to make the requirements for construction and domestic waste consistent with the coverage requirements for most other types of materials and wastes.
8. Discharge Limitations for Sites Discharging to Sensitive Waters
   In order to help ensure that discharges meet water quality standards, in the 2017 CGP EPA added a requirement to implement controls on sites discharging to polychlorinated biphenyl-(PCB) impaired waters to minimize the exposure of building materials containing PCBs to precipitation and stormwater. This provision applies to the demolition of structures with at least 10,000 square feet of floor space built or renovated before January 1, 1980. EPA also requires information about the demolition location and associated pollutants in the SWPPP.
9. Notice of Intent (NOI)
   EPA added three questions to the NOI form. These questions are:
   • The type of construction site (select one or more of 9 options);
   • A yes/no question asking if there is demolition of a structure with at least 10,000 square feet of floor space that was built or renovated before January 1, 1980.
   • A yes/no question asking whether the predevelopment land use was agriculture.

Avoid pitfalls

The key to compliance is thus proper registration and maintaining an adequate SWPPP. Frequent failures in a storm water plan or its control include the following:

• Improper stabilization. Without proper stabilization, soil is vulnerable to erosion. Mats, mulches, blankets and other best management practices (BMPs) need to be used to temporarily stabilize and permanently establish vegetation on disturbed soils.
• Missing perimeter controls. When perimeter controls are missing, stormwater carries sediment off site and into waters of the state. Silt fence, biorolls, and other BMPs intercept runoff and settle out sediment while allowing water to run through.
• Missing or inadequate inlet protection. Missing or inadequate inlet protection allows sediment to enter the storm sewers and/or water bodies. Inlet protection BMPs capture sediment before it enters the storm sewer.
• Vehicle tracking. Without a tracking BMP, vehicles track sediment onto paved surfaces. Rock pads and other sediment tracking BMPs knock sediment off tires before it is tracked onto paved surfaces.
• Best Management Practices not maintained. Unmaintained BMPs do not function properly and allow sediment to escape and enter waters of the state.

States authorized to issue permits

The authorization to issue permits for stormwater discharges have been delegated to most states, including Alabama, Florida, Louisiana, Mississippi, South Carolina, Tennessee and Texas. Under such permit programs, the operator of construction sites of one acre or larger (including smaller sites that are part of a larger common plan of development) are required to:

• Obtain authorization to and/or give notice of the discharge stormwater under an generic construction stormwater permit;
• Implement appropriate pollution prevention techniques to minimize erosion and sedimentation; and
• Properly manage stormwater.

Most states as part of the delegation for enforcement have been issued a Construction General Permit by EPA. A contractor or owner (operator) of a site must obtain a copy of the state’s general permit and then submit a notice of intent (NOI) to perform construction activities in accordance with the General Permit. As part of such NOI, the contractor or owner must develop, implement and maintain a stormwater plan for every construction site under its control. The plan must be developed and implemented to be in compliance with the state’s general permit. Guidance for such plans can be found at both state and EPA stormwater websites. The failure to register a site or the failure to implement and maintain a stormwater plan is a violation for which fines can be assessed.

Penalties for not complying

The failure to comply with the stormwater permit requirements constitutes a violation of the Clean Water Act and may subject the violator to potential fines of $2,500.00 to $25,000.00 per day or more. Historic examples of penalties paid by contractors and developers for stormwater violations include the following:

• Central Missouri AGRIService agreed in 2016 to a $166,914 penalty to address violations at its construction site in Marshall, Mo.
• A contractor agreed to a to a $49,500 penalty in 2016 for violations in construction of a high school in Somerset MA in 2016;
• Garden Homes, a New Jersey Developer, agreed to a $225,000 penalty in 2015 for stormwater violations.
• In 2015 F&R Contractor Corp agreed to a $500,000 penalty;
• In 2012 Toll Brothers, a national home builder agreed to a $741,000 penalty;
• In 2010 Beazer Homes USA, another national homebuilder paid $925,000.