AGC's Environmental Observer - May 6, 2011 / Issue No. 3-11 (Print All Articles)

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Construction Stormwater Issues Update

AGC has been following and (to varying degrees) participating in three ongoing construction stormwater issues. First, the status of the new “Effluent Limitations Guidelines” for the “Construction and Development Industry” (C&D ELG rule) has not significantly changed since AGC’s Environmental Observer post dated Jan. 14. The U.S. Environmental Protection Agency (EPA) issued a direct final rule to stay implementation of its 280 nephelometric turbidity unit (NTU) limit under the December 1, 2009, final C&D ELG rulemaking, while it addresses issues raised in subsequent 7th Circuit Court of Appeals litigation brought by the National Association of Home Builders and other parties.

EPA has prepared a proposed rulemaking to establish a new, “corrected” turbidity limit, which has been at the White House Office of Management and Budget for more than  90-days (technically the “limit” for OMB review, but there are exceptions and there has been no indication that approval is immediately pending). The construction industry has met with OMB during the review process and made a compelling case to OMB to make sure EPA avoids the problems that plagued the original limit (that EPA has suspended).  Originally, EPA wanted to propose a new limit, receive comment, and finalize the new limit by the end of May 2011. Clearly, the delay associated with OMB’s review has affected that schedule; EPA recently reported that it will publish a proposal by the end of 2011.

EPA’s original May 2011 goal was directly linked to the Agency’s desire to promulgate a new C&D ELG turbidity limit before it promulgates a new Construction General Permit (CGP) to replace the current 2008 CGP.  The 2008 CGP expires at the end of June 2011.

In recent news, EPA proposed a draft revised construction general permit (CGP) for public comment to regulate stormwater discharges from active sites where EPA is the permitting authority.  EPA concurrently proposed to extend the current CGP through January 31, 2012, in order to give the Agency time to promulgate the new CGP in final form.  Industry has encouraged EPA to extend the current CGP for up to an additional five years. The proposed new CGP includes significant modifications that would increase the costs, labor, and paperwork burdens and liability for construction site operators tasked with stormwater compliance. Major proposed changes to the current CGP aim to implement the C&D ELG rule.

States authorized to run their own stormwater permit programs are expected to follow EPA’s lead in adopting enhanced protections.

Finally, many of the same EPA staff also are engaged in ongoing efforts to craft EPA’s post-construction stormwater rulemaking, which AGC recently provided comments and recommendations on as part of EPA’s Small Business and Enforcement Fairness Act (SBREFA) review. EPA’s current timeline on the post-construction rulemaking is reflected in the following bullets:

  • EPA must finish analyzing all of the information it received through its Clean Water Act (CWA) Section 308 Information Collection Request (over 3,000 questionnaires sent to potentially affected entities).
  • EPA must develop a “Report to Congress” by “this summer” if it intends to expand the existing stormwater program (as it has said it would do) to include new categories of dischargers subject to CWA Section 402(p) addressing stormwater controls.
  • EPA has committed to proposing a new post-construction stormwater program by September 30, 2011.
  • EPA has committed to finalizing that rulemaking by November 12, 2012.

AGC will continue to keep you updated on the progress on these construction-related stormwater issues.  If you need additional information, please email Leah Pilconis at pilconisl@agc.org.


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 RequirementsWithin 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 pilconisl@agc.org.


Obama Administration Proposes New Guidance With Expansive Federal Control Over Construction in U.S. Waters

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released for public comment new draft guidance to clarify jurisdiction of the Clean Water Act over wetlands and waterways.  The document would replace earlier guidance released in 2008 by the Bush Administration following two Supreme Court decisions that have confused the issue of jurisdiction.  The proposed guidance would more broadly define what waters are subject to regulation based on whether the waters share a “significant nexus” with a “navigable” waterway expressly protected under the Act. 

Stakeholders and policymakers are divided over whether the guidance would have the force and effect of law.  Despite the Administration’s claim that the document is not a rule and thus lacks the force of law, industry, policymakers, and the environmental community, which supports the new guidance, have all called for the Administration to undertake a longer, more deliberative rulemaking process to clarify jurisdiction. 

AGC, along with the Waters Advocacy Coalition, sent a letter to U.S. EPA and the Corps earlier this month to urge the Administration to withdraw the proposed guidance and to initiate a formal rulemaking process.  In addition, nearly 170 Congressional Republicans and Democrats wrote a letter to the agencies to express similar concerns. 

For more information on recent developments on the extent of federal control over construction in U.S. waters, click here.

For more information, contact Karen Lapsevic at (202) 547-4733 or lapsevick@agc.org.


AGC Works Towards Building a Green Future, Hosts Roundtable Discussion

AGC hosted a roundtable discussion on green construction at the National Building Museum April 21 with leading architectural, construction, engineering and public policy officials.

Moderated by Roger Lewis, architect and Washington Post columnist, six panelists from AGC, the American Public Works Association, American Association of State Highway and Transportation Officials, Building Owners and Managers Association, American Society of Heating, Refrigeration and Air Conditioning, and the American Institute of Architects discussed the best techniques and practices for improving the efficiency and environmental performance of our built environment.

The event was live webcast and can be viewed here.  To read AGC’s Building a Green Future plan, which presents the argument for investing in our nation’s built environment, click here.

AGC believes the environmental potential of green construction is vast given the significant inefficiencies in the country’s inventory of existing buildings and infrastructure.  In his opening remarks, AGC CEO Steve Sandherr highlighted this potential: renovating and building energy efficient buildings, for example, would help reduce the 40 percent of U.S. power today’s buildings consume; upgrading our nations roads, highways and transportation system would move towards saving the 2.8 billion gallons of fuel that traffic congestion wastes; fixing leaking pipes and bringing sophisticated wastewater treatment to more communities would save billions of gallons of lost water every day and improve water quality in some of our most important watersheds. “Investment in greening our critical infrastructure will safeguard our land and water resources,” Sandherr noted, and “will provide a much-needed boost for the hard-hit construction, design and engineering industry.”

During the event, AGC  showcased four of the many outstanding, environmentally-friendly projects completed by AGC members last year and recognized with an Aon Build America Award.

For more information on green construction, contact Melinda Tomaino at (703) 837-5415 or tomainom@agc.org.


AGC CEO Steve Sandherr introduces the Building a Green Future
panel of experts at the National Building Museum on April 21.


AGC and AIA Chart the Future of Sustainability and Risk in the New Green Codes Era

On April 25, 2011, the Associated General Contractors of America (AGC) and the American Institute of Architects (AIA) hosted an industry summit on issues of sustainability and risk.

Launching from a discussion of the AIA/AGC Joint Committee in February 2011, the summit brought together representatives from various industry stakeholder groups including architects, contractors, engineers, building owners, professional liability carriers, sureties and attorneys. The day-long meeting was organized around presentations and panel discussions related to the rapidly shifting legal landscape in the building industry as it relates to codes, whole building rating systems, products and life cycle assessments.  Key themes for the day were collaboration, education, practice transformation, accountability and metrics.

“Collaboration is key to our ability to solve these big industry challenges we are facing,” said Mike Kennedy, General Counsel for AGC of America, at the opening of the summit. “Increased risk for contractors and other members of the building construction team when working on sustainable projects is an issue we want our members to be out in front of.”

To set the stage for the discussions, the group heard presentations that provided overviews of sustainability trends, the cost of sustainability and recent litigation.  A representative of the U.S. General Services Administration spoke on the impact of the federal government’s leadership in sustainability and the breadth of the movement.  They also heard from construction consulting firm Davis Langdon—An AECOM Company on recent studies of the cost of implementing green codes and constructing high performance buildings. Current research shows that sustainable building features are not statistically significant factors in determining project costs.  The majority of green buildings have been initiated by first adopters.  However, owners are closely watching the implementation of mandatory provisions currently seen in California’s green codes (CALGreen) and those proposed in the International Green Construction Code (IGCC) through a variety of lenses, including direct and indirect costs.  The moderator, from Cheatham Law, then gave examples of legal cases that fall into three main categories: materials and techniques, regulatory compliance and those related to certification under rating systems.

Insurance providers covered changes occurring within the insurance industry, and outlined their reactions to the IGCC and its subsequent changes to the professional standard of care for architects and other design professionals. Although professional liability carriers have not identified specific changes to the standard of care for architects, there were a number of questions regarding the downstream consequences of mandating sustainable measures in both the design phase and operations and maintenance, and uncertainty around consequences for default or non-compliance based on post occupancy behaviors beyond the control of the design professional.

The group also discussed the effects that the adoption of voluntary building certification programs and mandatory codes and standards are having and may have on the design and construction industry.  In depressed economic times, the impact of increased code requirements will not be felt as strongly as when the market returns to normal.  As state and local governments adopt and customize model green code language, there will be less consistency—making it harder to train effectively.  Education was identified as a significant challenge for all stakeholders, particularly building officials who will be expected to administer newly adopted high performance codes.

Participants saw the future of rating systems such as USGBC/GBCI’s LEED program as continuing to raise the bar for the industry. Conversely, according to attendees, a legally enforceable green construction code system like the IGCC would serve as a building performance floor, or minimum standard of compliance.

“There is a practice impact for architects that extends beyond the projects that are ‘sustainable’ to every project in their portfolio,” said Ken Ross, FAIA, AIA Vice President of Design and Practice, at the close of the summit. “The AIA, through events like these, will help its members anticipate new practice and business models that aid them in delivering maximum value to the client.”

Resources from the summit, including a joint white paper that investigates these trends and their impacts on the building and construction industry, will be made available online once the meeting findings are analyzed.

For more information on green construction, contact Melinda Tomaino at (703) 837-5415 or tomainom@agc.org.


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