Proposed New Construction General Permit Guaranteed to Change the Way Contractors Manage Stormwater Runoff; Comments Due June 24
The U.S. Environmental Protection Agency (EPA) proposed April 24 a draft revised construction general permit (CGP) to regulate stormwater discharges from active sites where EPA is the permitting authority. The revised CGP will replace the current 2008 CGP, which is set to expire on June 30. EPA concurrently proposed to extend the 2008 CGP through January 31, 2012, to give the Agency more time to finalize its proposed draft CGP. The draft includes significant modifications that would increase the costs, labor, and paperwork burdens and liability for construction site operators tasked with stormwater compliance. States authorized to run their own stormwater permit programs generally follow EPA’s lead in adopting enhanced protections. EPA will accept comment on the draft CGP proposal through June 24.
Major changes to the current 2008 CGP are afoot. To begin with, all permitting authorities (EPA as well as the states) must incorporate the new “Effluent Limitations Guidelines” for the “Construction and Development Industry” (C&D ELG rule) into their construction stormwater permits upon the next reissuance. Accordingly, EPA’s proposed CGP pulls straight from the C&D ELG rule a suite of mandatory erosion and sediment controls, soil stabilization practices, pollution prevention measures, surface outlet protections, and dewatering practices that will apply to all permitted construction sites. See 74 Fed. Reg. 62996, Dec. 1, 2009 and 40 CFR 450.21. In addition, the CGP proposal includes a placeholder for a numeric turbidity limit (the specific limit to be inserted once it is recalculated and published), as well as applicability, sampling, and reporting requirements. The placeholder accounts for the promulgation of the C&D ELG rule’s numeric turbidity limit, and for the fact that EPA is working to issue a corrected limit to replace the stayed limitation of 280 NTU (nephelometric turbidity units).
Other significant proposed permit modifications include:
1. Eligibility for emergency-related construction
2. Changes to the CGP authorization procedure
- Required use of the electronic notice of intent (NOI) process
- Introduction of new “secondary operator” category for a construction project that has more than one operator
- Increased waiting period for new sources (from 7 to 30 days) from time submit permit application to time start construction
3. New requirements for sites that discharge to sediment- or nutrient-impaired waters
- Sampling of discharges in comparison to benchmark levels, if the site disturbs 10 or more acres at one time, and reporting on a quarterly basis to EPA
- More rapid stabilization requirements and increased inspections
4. Corrective action requirements
- Specific triggering conditions for corrective action
- Deadlines to fix such problems and document what was done
5. More specific provisions on
- Employee training and documentation
- Inspection protocols and procedures
- Final stabilization
- Notice of termination procedures (e.g., new requirement to remove of all temporary stormwater controls and construction materials, waste, and waste handling devices)
Construction sites disturbing one or more acres of land or smaller sites that are part of a common plan of development or sale are required to obtain permit coverage for their stormwater discharges. EPA’s CGP applies in areas where the EPA is the permitting authority. These areas presently include four states (i.e., Idaho, Massachusetts, New Hampshire, and New Mexico); the District of Columbia; Puerto Rico; all other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four states (i.e., Colorado, Delaware, Vermont, and Washington); and most Indian lands and for a few other specifically designated activities in specific states.
Comments referencing Docket No. EPA-HQ-OW-2010-0782 are due by June 24 and may be submitted online at http://regulations.gov.
Additional information on the proposed CGP is available here.
Free EPA Webcast
EPA will host a webcast presentation on Tuesday, May 24 from 1:00 to 3:00 pm Eastern Time to discuss the proposed new CGP. The webcast will cover the new requirements of the proposed CGP and provide participants an opportunity to ask questions of EPA staff. Online registration for this webcast will be open soon on EPA’s website at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.
More on Most Notable Changes…
The most notable changes to the current CGP seek to incorporate into the new CGP the provisions of EPA’s C&D ELG rule. In November 2009, The Wall Street Journal reported that the effluent limitation rule could add nearly $1 billion in annual costs to construction projects.
New Erosion and Sediment Control Requirements – The proposed draft CGP includes new erosion and sediment control requirements intended to minimize erosion at outlets, downstream channels and stream banks; maximize stormwater infiltration; minimize soil compaction and preserve topsoil; provide and maintain natural buffers around surface waters; and direct stormwater to vegetated areas to increase sediment removal. Specifically, under the draft CGP, site operators must ensure that any discharges flowing through the area between the disturbed portion of the site and waters of the United States (located on or immediately adjacent to the site) are treated by an area of undisturbed natural vegetation that alone or with alternative sediment and erosion controls achieves a reduction in sediment loads equivalent to a 50 foot buffer. To learn more about EPA’s proposed buffer requirements and how to comply with them, see the fact sheet for the proposed permit and the proposed buffer appendix (Appendix M).
New Soil Stabilization and Dewatering Requirements – Under the draft CGP proposal, new soil stabilization and dewatering provisions require immediate stabilization whenever clearing, grading excavation or other earth disturbing activities have permanently ceased in a given area. Areas must be immediately stabilized when disturbing activities are temporarily ceased for more than 14 calendar days. In addition, discharges from dewatering activities, including trenches and excavations, are prohibited unless managed by appropriate controls, according to the draft CGP.
New Pollution Prevention Requirements – The draft CGP proposal requires the stormwater pollution prevention plan (SWPPP) for the jobsite to identify methods to minimize discharges of pollutants from all wash waters. Wash water must be treated in a sediment basin or alternative control that provides equivalent, or better, treatment prior to discharge. Methods must be outlined to minimize the exposure of building materials/products, construction wastes and other materials present on- site that can migrate via stormwater. Additionally, sites are required to have chemical spill, leak prevention and response procedures in place to minimize the potential for discharge of pollutants, according to the draft CGP.
New Prohibited Discharges – Wastewater discharges from washout of concrete, cleanout of stucco, paint, release oils, curing compounds and other like construction materials are prohibited under the draft CGP. Additionally, fuels, oils, soaps and solvents used in the maintenance and operation of vehicles are prohibited from being released to stormwater discharges.
New Sediment Pond Surface Outlets – The draft CGP requires an outlet structure that withdraws water from the surface to be used when discharging from basins and impoundments. There are some commercially available skimmers to consider or a design engineer could provide the permittee with details on how to construct the device.
New Turbidity Limit and Monitoring – Permittees that disturb 10 or more acres of land at one time must monitor discharges from their site (i.e., take effluent samples, record the results, and submit reports to EPA). The draft CGP requires a trained employee to take stormwater samples at ALL DISCHARGE POINTS EVERY TIME there is a discharge from the site (e.g., a storm event or snowmelt, or a discharge of allowable non-stormwater). EPA proposes to allow representative sampling on linear projects only. (Note that the draft permit would not require samples of stormwater flow that exits the site in a non-discernible, non-confined, and non-discrete form. For example, if stormwater enters an infiltration device and is allowed to completely infiltrate, then no sampling would be required. ) The proposed CGP requires sampling during normal working hours and during conditions that are safe for sampling personnel. The draft permit specifies that the first sample must be collected within the first hour that the discharge begins, and then a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day. The draft permit requires either manual or automated grab samples, along with certain minimum protocols for the analysis of the turbidity samples including: begin sample analysis as soon as possible after sample collection; if analysis will be performed on site, use a field-calibrated nephelometer or turbidity meter (also referred to as a “turbidimeter).
In short, under the draft CGP, a trained employee will need to calculate the average turbidity value of all of the samples collected during a discharge event and ANY EXCEEDANCE of the daily maximum value for turbidity that is established by EPA would be an AUTOMATIC PERMIT VIOLATION.
New Recordkeeping Requirements – Within 24 hours of completing a site inspection, the proposed permit requires the permittee to record in an inspection log book the inspection date and a summary of findings. The proposed permit also requires the permittee to record (timeframe not specified) in a sampling log book the value of all turbidity samples. In addition, if (1) an inspection reveals that the permittee’s stormwater controls are not designed, installed, and/or maintained per the permit, or (2) a prohibited discharge has occurred (e.g., turbidity samples indicate that a discharge exceeds the numeric turbidity limit), the proposed permit requires the permittee to record within 24 hours various details surrounding the triggering conditions (either 1 or 2) occurring at the site. Finally, within 14 days of discovering a triggering condition (again, either 1 or 2) the permittee is required to record various details surrounding any follow-up actions taken (or to be taken) and whether such actions warrant a stormwater pollution prevention plan (SWPPP) revision. Where corrective action (see below) result in changes to any of the stormwater controls or procedures documented in the SWPPP, the permittee is required to modify its SWPPP accordingly within 7 days of completing corrective action work.
Each new record of a triggering condition and any updates to those records must be signed and certified. The permittee is required to keep a current copy of all records at the site or at an easily accessible location and make them available at the time of an onsite inspection or upon request by EPA. These records must be retained for at least 3 years from the date that permit coverage expires or is terminated.
New Reporting to EPA Requirements – If the turbidity limit applies on a project (site is disturbing 10 acres or more at any one time), the permittee must to report ELECTRONICALLY TO EPA the turbidity sampling results for each discharge point on the site for the period beginning 30 days after the first day of the next full month following the notice of coverage under this permit, and every 30 days thereafter, as long as the permittee is required to conduct sampling of that discharge point. Also, if the benchmark monitoring requirements apply on a project (site is disturbing 10 acres or more at a time and discharging to sediment- or nutrient-impaired waters), the proposed permit requires the permittee to report ELECTRONICALLY TO EPA benchmark monitoring results for each discharge point on the site on a quarterly basis.
In addition, permittees must to report ELECTRONICALLY TO EPA by the end of the next full work day after discovering the release of a prohibited discharge or a discharge that exceeds the numeric turbidity limit (if applicable) or applicable water quality standards.
The introduction of stormwater sampling and electronic/online reporting will provide the general public with free access to a construction company’s discharge monitoring results. This will likely lead to more citizen suits and attempts to slow down or stop controversial projects.
New Incentives To Phase/Sequence Activities to Limit Disturbance – Under the draft CGP, permittees that phase their disturbances so that they are always disturbing less than 10 acres at a time, or who stabilize exposed areas to lower their total disturbed acres to less than 10 acres, need not comply with the numeric turbidity limit requirements or the benchmarking requirements.
New Corrective Action Requirements – The proposed permit requires corrective action whenever the permittee’s stormwater controls are not designed, installed, and/or maintained as required by the permit. The proposed permit includes a list of specific situations that would trigger corrective action. The proposal also requires corrective action if a prohibited discharge occurs, or will occur if effective corrective actions are not taken. In each instance, the proposed draft CGP states that the permittee must initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work day, if the problem can be easily fixed through a quick repair or the performance of regular maintenance of the stormwater control or pollution prevention measure. If installation of a new stormwater control is needed, or an existing control requires significant redesign and reconstruction or replacement, the permittee must install the new or modified control, and make it operational, by no later than 7 days from the time of discovery of this condition at the site.
For more information, contact Leah Pilconis at (703) 837-5332 or firstname.lastname@example.org.
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