(Don’t) Love that Dirty Water1
Key Changes in EPA’s New 2017 Construction General Permit
Nick R. Hoogstraten, Peckar & Abramson, P.C.

Despite the hopes of some industry groups that President Trump’s directive to review all significant regulations issued at the end of the Obama Administration would lead to revisions, the U.S. Environmental Protection Agency’s 2017 National Pollution Discharge Elimination System (“NPDES”) General Permit for Stormwater Associated with Construction Activities (“2017 CGP”) has taken effect.2

Like the 2012 CGP, the 2017 CGP applies to projects in the District of Columbia as well as in Massachusetts, New Hampshire, New Mexico, and Idaho, projects in various U.S. territories including Puerto Rico, projects on Indian tribal land in most states, natural gas and petroleum distribution work in Texas and Oklahoma, and federal operators’ work in Colorado, Delaware, Vermont, and Washington State. Elsewhere, such as in Maryland and Virginia, state-issued CGPs continue to govern, but many of the new features of the 2017 CGP certainly will filter into state CGPs as they are renewed over the next five years.

The key new requirements that will impact many contractors are summarized below in the order they appear in the 2017 CGP.

§1.2.2 The list of authorized non-stormwater discharges now excludes building washdown water where external surfaces contain hazardous substances, such as paint or caulk containing PCBs. Also, besides detergent use prohibited by the 2012 CGP, building washdown now must not use soaps and solvents if any water is to be discharged from the site.

§1.5 Permittees still must post a sign or other public notice of permit coverage at a safe, publicly accessible location in close proximity to the construction site. Under the 2017 CGP, the sign or notice now must contain the URL of the SWPPP, if it is posted on-line, or specified language instructing the public how to obtain a copy of the SWPPP through the EPA Regional Office. Also required is specified language instructing the public how to contact the EPA if “indicators of stormwater pollutants in the discharge or in the receiving waterbody” are observed. Public notice contents were a contentious point during the drafting of the new CGP, as EPA was considering requiring the posting of SWPPPs on-line.

§2.2.5 Stockpiles or land clearing debris piles composed, in whole or in part, of sediment and/or soil that will be unused for 14 or more days are now required to be covered (e.g. tarps, blown straw, or hydroseeding) or temporarily stabilized. The 2012 CGP had required such cover or temporary stabilization only “where practicable,” but that loophole is now closed.

§2.2.14 Separate stabilization timelines have been established for larger ongoing earth disturbances. If more than 5 acres are being disturbed at any one time, stabilization measures must now be completed within 7 days after commencement of stabilization, versus 14 days under the 2012 CGP.  However, not all the disturbed acres need stabilization installed within 7 days.  Once enough land is timely stabilized to drop the current disturbance below 5 acres, the remaining disturbed land reverts back to the 14-day timeline.  Essentially, EPA encourages phasing work to limit disturbances to 5 acres at a time.

§2.3.3  For construction and domestic wastes, waste container lids must now be kept closed when not in use.  For those containers that are actively in use throughout the day, lids must be closed at the end of the business day.  Waste containers that do not have lids must have either a cover (e.g. tarp, plastic sheeting, temporary roof) or similarly effective means to minimize discharge of pollutants (e.g. secondary containment).  In recognition of industry group comments, EPA added the “actively in use” qualification, but there still could be dispute over how “active” use must be to justify not covering a dumpster or other waste container during the workday.

§3.2  If a project involves demolition of a structure with at least 10,000 s.f. of floor space built or renovated before January 1, 1980 and will discharge to a water that is impaired for PCBs, the permittee must implement controls to minimize stormwater and precipitation contact with PCB-containing building materials including paint, caulk, and pre-1980 fluorescent lighting fixtures.  To this end, the new EPA Notice of Intent asks whether demolition of this type will occur.  Currently, over 4,500 waterbodies nationwide are listed as impaired for PCBs.

§4.2.2  If operators elect to conduct stormwater inspections every 14 days plus 24 hours after a storm event of .25” or greater (instead of simply every 7 days), inspections within 24 hours after snowmelt sufficient to cause a discharge are now also required.

§7.1  The 2017 CGP makes clear that all operators on a site can be jointly and severally liable for compliance with the permit.  Joint and several liability means that EPA can pursue any one of the operators without joining the others and can assess the entire penalty for a violation against that one operator.  Previously, an operator was only responsible for compliance with effluent limits, terms, and conditions of the permit as it related to the activities on that operator’s portion of the site.  Now, an operator is liable for violations should another operator fail to implement any measures that are necessary for the first operator to comply with the permit, e.g. installation and maintenance of shared controls.  This is true regardless of whether the operators are working under a joint SWPPP or separate SWPPPs.  This concept is particularly troubling to the National Association of Home Builders, which has filed a legal challenge to the new CGP.

There are several other new requirements in the 2017 CGP, so permittees should become familiar with the contents of the entire permit.

Permittees with ongoing projects that had obtained NPDES coverage under the 2012 CGP must apply for coverage under the 2017 CGP by submitting a new Notice of Intent (NOI) by May 17, 2017.  Such permittees will continue to be governed by the 2012 CGP until 14 days after EPA notifies them of receipt of a complete NOI, unless EPA notifies them otherwise.  It is not necessary to file a Notice of Termination of the existing 2012 CGP coverage.

1 Apologies to The Standells.
2 At least one legal challenge to the 2017 CGP has been filed already, by the National Association of Home Builders, but the case is ongoing.

About the author
Nick Hoogstraten is Senior Counsel with the Washington, D.C. office of Peckar & Abramson, P.C.
P&A is a nationwide law firm committed to providing a full range of legal services to the construction industry.