EPA Finalizes 2017 Construction Stormwater Permit

The U.S. Environmental Protection Agency (EPA) published its final 2017 Construction General Permit (CGP). It takes effect on Feb. 16, 2017, which is when the 2012 CGP expires. As with any reissued CWA discharge permit, there comes new or modified requirements. AGC served its members well by making sure the construction industry’s top issues of concern were heard and vetted. AGC kept the most troubling provisions out – and got some new clarifying language and flexible provisions worked in. Looking ahead, the new language on "joint and several liability" may prove to be contentious and will likely be a key focus of near-term debate and future improvement.

AGC devoted many staff hours to working with the regulatory agencies on the reissuance of EPA’s CGP because it serves as a model for the nation. Not to mention the environmental community continues to push EPA to impose strict, numeric stormwater runoff limits and monitoring requirements on all sites. AGC made certain that the proposed version of the 2017 CGP permit got in front of the U.S. White House Office of Management and Budget and the U.S. Small Business Administration for review and a discussion of costs, benefits and burden-reduction alternatives. It took a strong legal analysis to make that happen, and it earned AGC a front seat at the table, representing the interests of the commercial construction industry. These procedural arguments as well as AGC’s concerns over specific permit terms were presented in AGC’s nearly 50 pages of written comments on the proposal. AGC remained engaged with EPA throughout the permit reissuance process.

Below please find AGC’s initial analysis. Also, please note that AGC is working to organize a members-only webinar with EPA staff to discuss the new 2017 CGP. Stay tuned for more information.

AGC Accomplishments

In a hard-earned success, many troubling provisions that had appeared in the proposed version of the 2017 permit did not make it into the final version.

• The final permit does not require site operators to electronically report their site-specific stormwater pollution prevention plans (SWPPPs) for public examination.
• The final permit does not require a "group" SWPPP for jobsites where there are multiple operators.
• The final permit application form (Notice of Intent or NOI) does not collect a host of new project information from the applicant, like the longitude and latitude location of every single outfall location at the project site, which would have taken significant time and effort for permittees to submit.
• The final permit does not require more frequent site inspections and increased documentation. Even better, the final permit provides new flexibility in the inspection frequency for long, linear highway projects where portions of the jobsite have achieved final stabilization.
  

A positive improvement in the final permit (and accompanying Fact Sheet) is language clarifying that the details of the jobsite SWPPP are not enforceable, because it is an "external tool" that the operator is supposed to "modify and retool" to comply with the permit. Rather, it is the CGP text that spells out the legally enforceable requirements, including "the requirement to develop a SWPPP, to keep it updated, and to include in it all of the required minimum contents." If you follow EPA’s process for developing a SWPPP, the specific contents of your plan are not enforceable.

The final permit also includes some useful clarifications regarding the application of the permit, including several new definitions.

Permit Changes from the 2012 CGP

The final 2017 CGP does include several notable new or modified requirements. Specifically, construction site operators must:

• Use EPA’s NPDES eReporting Tool (NeT) to electronically prepare and submit their NOIs and NOTs (Notices of Termination) to start and stop coverage under the 2017 CGP.  (These new permit provisions are called for per EPA’s NPDES Electronic Reporting rule that took effect in December 2015 and applies nationwide. Already, GA, NE, OR and RI have announced that they will require the use of EPA’s NeT system when they reissue their construction stormwater permits. AGC expects other states to follow.)
• Post notice near your construction site entrance to inform the public on how to contact EPA to obtain a copy of your site SWPPP and how to report a visible discharge of pollution from your site, along with your notice of permit coverage.
• Cover or temporarily stabilize all inactive stockpiles and land clearing debris piles that will remain unused for 14 or more days.
• Close C&D waste container lids when not in use and at the end of the business day (for those containers that are actively used throughout the day) – or provide cover or a similarly effective means to minimize the discharge of pollutants.
• Phase construction disturbances: Choose between completing stabilization within a 14-day timeframe, if you limit/phase disturbances to 5 acres or less at any one time – or within a 7-day timeframe, if you do not limit/phase disturbances to 5 acres or less at any one time. (Unchanged from the 2012 CGP, the operator must initiate the installation of soil stabilization measures immediately in any areas of exposed soil where construction activities have permanently ceased or are temporarily inactive for 14 or more calendar days. EPA also retained the exceptions to the deadlines for the initiation/completion of vegetative stabilization for operators affected by circumstances beyond their control and for sites in arid, semi-arid, and drought-stricken areas. Stabilization may not be required if the intended function of a specific area of the site necessitates that it remain disturbed.)
• Refrain from discharging external building wash-down waters (non-stormwater) that contains hazardous substances, such as paint or caulk containing polychlorinated biphenyls (PCBs); such discharges are explicitly prohibited.
• Implement controls to minimize the exposure of PCB-containing building materials to precipitation and stormwater on demo sites that meet the following criteria: structures with at least 10,000 square feet of floor space; built or renovated before Jan. 1, 1980; and that discharge to PCB-impaired waters.
  

Joint and Several Liability Language: Room for Improvement

The 2017 CGP at Footnote 53 specifically states:

Regardless of whether there is a group SWPPP or several individual SWPPPs, all operators would be jointly and severally liable for compliance with the permit. ...[D]ividing the functions to be performed under each SWPPP, or a single group SWPPP, does not relieve an individual operator from liability for complying with the permit should another operator fail to implement any measures that are necessary for that individual operator to comply with the permit, e.g., the installation and maintenance of any shared controls. In addition, all operators must ensure, either directly or through coordination with other operators, that their activities do not cause a violation and/or render any other operators’ controls and/or any shared controls ineffective. All operators who rely on a shared control to comply with the permit are jointly and severally liable for violations of the permit resulting from the failure to properly install, operate and/or maintain the shared control.

EPA provides definitions for "operator" (includes owner and general contractor) and "shared control" in Appendix A to the CGP. EPA further discusses the concept of "joint and several liability" in the Fact Sheet to its 2017 CGP at page 72, wherein the Agency’s focus appears to be specifically on "operators associated with the same site through a common plan of development or sale."

In its comments to EPA, AGC made clear that "it does not support permit language that imposes joint and several liability for compliance on all parties involved in the construction project, regardless of their respective roles and responsibilities."  AGC further stated: "EPA would significantly and wrongly complicate things further, if it were to create a permit scheme that would hold a contractor legally responsible for something they cannot control, or had no knowledge of, or would not be expected to have knowledge of, in the first place." In the final Fact Sheet to the 2017 CGP, EPA lists specific facts that EPA will consider when pursuing enforcement against an operator or several operators associated with the same site:

...EPA will consider the totality of the facts, including but not limited to the actions of each operator, the capability of the operator to remedy the violations, whether there is a written division of permit-related functions in a group SWPPP or individual related SWPPPs, and whether the operator has the ability to obtain access, with assistance from EPA if needed, to any portion of the project at issue.

AGC will continue to work to better educate EPA regulators and enforcement staff of times when the owner’s manager in charge on the project prevents the contractor from taking certain actions or does not approve of the contractor taking certain actions that are necessary for permit compliance (e.g., required corrective actions are required on the project). AGC also will advocate for enforcement guidance that provides the general contractor with the opportunity to rebut the presumption that he/she had "operational control" over the activities that caused the alleged violation.

For details on where EPA is the permitting authority, copies of the 2017 CGP and accompanying Fact Sheet and information on how/when to start and stop permit coverage, click here. If you have questions, please contact AGC’s Leah Pilconis at pilconisl@agc.org.