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EPA’s New Construction General Permit Takes Effect: Contractors now responsible; significant new requirements imposed

April 9, 2012

 

On February 16, 2012, EPA’s new NPDES Construction General Permit, or “CGP,” took effect, replacing the expiring 2008 CGP. Officially termed the National Pollutant Discharge Elimination System General Permit for Discharges from Construction Activities, the revised permit imposes new requirements on all construction activities in affected states and territories that disturb one or more acres of soil. The contractor, rather than the site owner, will now be primarily responsible for obtaining and complying with the new permit. The new technical requirements and the potential for new, project-specific permit limits could significantly increase the cost of stormwater controls and will eventually impact all states’ NPDES permits for construction sites.

Background

The Federal Water Pollution Control Amendments of 1972, the precursor to today’s Clean Water Act, established the National Pollutant Discharge Elimination System, or NPDES. The NPDES is a generalized permitting system for the regulation of “point sources” of pollution, including manufacturing, mining, drilling, and construction sites. No discharge of pollutants to surface waters from point sources is permitted without a NPDES permit. EPA expanded the NPDES system in 1987 to address pollutants in storm water run-off, from both sewer systems and industrial sites.

Construction site operators obtain coverage under the new CGP by electronically filing a Notice of Intent or “eNOI” with EPA. The permit is deemed effective after 14 days, assuming EPA does not deny the permit during the waiting period. Like most storm water permits, the CGP requires construction site operators to prepare a Stormwater Pollution Prevention Plan, or “SWPPP,” in order to obtain NPDES coverage. EPA posts on its website guidance for prevention plans, including customizable SWPPP templates and sample inspection reports. EPA appears to have posted an updated SWPPP template but is still updating the report template to be compliant with the 2012 CGP. EPA has yet to update its “example SWPPPs.” Site operators and their consultants should look directly to the 2012 CGP itself for all other SWPPP requirements.

The new permit must be in place from breaking ground until “final stabilization.” The 2012 CGP will expire in five years, on February 16, 2017. Contractors currently operating under the old permit must apply for a new 2012 CGP by May 16, 2012. They must also update existing SWPPPs to comply with the new requirements. While some requirements may be waived if shown to be infeasible, compliance with the new permit by the site operator is mandatory, and for enforcement purposes, the obligation cannot be contracted away between private parties.

Significant New Requirements

The new permit is more logically organized and understandable than its predecessor. There are also numerous substantive differences between the 2008 and 2012 permits. Some changes, however, will be more burdensome than others. The following appear to be the more significant changes.

Buffer Zones

The new CGP sets forth new guidelines for effluent limitation. Despite setting forth specific limits in prior drafts, the final permit provides no quantified, objective effluent limits. Permittees, however, must now maintain 50 foot natural buffers between construction sites and any nearby surface waters and ensure that stormwater is discharged to vegetated areas. If a 50 foot buffer is not feasible, then the contractor must implement sediment and erosion controls that have the equivalent effect of a 50 foot buffer.

Stockpiled Soil

Soil must be stabilized during pauses in earth-disturbing activities that last longer than two weeks. Stockpiled earth must be protected from rain, run-off, and run-on by covers and sediment barriers. Dewatering discharges from trenches, foundations, and other excavations are prohibited without appropriate controls.

Receiving Waters

The new CGP imposes additional, more restrictive requirements on discharges into both high quality waters and waters already impaired by construction waste. Permittees will have to sample and analyze the receiving water and adjust their SWPP accordingly.

Endangered Species and Historical Resources

EPA has strengthened the requirements for assessing impacts on endangered species and historical resources and lengthened the time for EPA to consider those impacts. Appendix D of the new CGP requires the operator to certify that no listed species are present or will be impacted by any discharges, confirm that the appropriate federal regulatory agency has been consulted (i.e., U.S. Fish & Wildlife or National Marine Fisheries Service) and verify that either no listed species will be impacted or that the operator already has an appropriate permit under the Endangered Species Act.

Appendix E requires operators who plan earth disturbance to establish there are no historical resources that could be impacted by construction activities. If there are such resources, the operator must consult with the relevant historic preservation agency and negotiate a mitigation plan.

The waiting period between application and permit effectiveness has been increased from 7 to 14 days to allow EPA more time to review the species and historic resource issues.

Inspections

The new permit requires more frequent site inspections than the 2008 CGP. Previously, runoff inspections were triggered by a storm dropping over a half inch of rain. Now, accumulations of a quarter inch of rain in any single storm event will trigger the requirement that the permittee visually inspect and assess the quality of stormwater leaving the site.
Prompt Corrective Action

The new permit now specifies deadlines for corrective action in the event a stormwater control was not installed correctly, fails, or is otherwise “not effective enough.” Repairs must be initiated on the day they are discovered and, where possible, completed by the end of the next business day. Contractors will be expected to document all repair work.

Construction Wastes and Sediments

The pollution prevention requirements now restrict discharge of various construction-related substances, including fertilizers, and set forth specific requirements for storage and handling of construction-related materials and wastes. The site operator must take new measures to prevent “track-out” of sediments by vehicles leaving the work site, establish exit points and take measures to remove sediment from vehicle tires and paved surfaces.

Emergency Construction

Finally, the new permit contemplates immediate authorization for construction in response to public emergencies, such as natural disaster response. The exception will apply to work addressing any imminent and substantial endangerment to health or the environment as well as work restoring essential public services. The contractor is expected, however, to prepare an appropriate SWPPP within 30 days.

Impact

The new EPA permit applies immediately in a few states and non-state U.S. territories that are not otherwise authorized by EPA to implement the NPDES program. (EPA’s website lists the affected states here.) The states that are authorized, which is most of them, will have to ensure their own CGPs meet or exceed EPA’s new standards when each state’s individual permit comes up for renewal. Regardless, the 2012 CGP will have significant, ongoing impacts on the cost to manage stormwater runoff at construction sites throughout the United States and its territories. NPDES permits for construction projects will now require more technical analysis of groundwater, run-off, and receiving waters as well as biological and historical assessments. The infrastructure for containing and properly disposing of wastes and sediments must be strengthened, with buffer zones and new soil stabilization requirements. Also, administrative compliance with the permit has become more stringent with more frequent inspections, faster repairs, and more documentation. All of these new requirements have the potential to add costs to virtually all construction projects affecting more than one acre.