December 18, 2008

EPA Sharply Increases Enforcement Activity to Reduce Pollution From Stormwater Runoff on Construction Sites

Holland & Knight Alert
Dianne R. Phillips

Contractors and project owners should be acutely aware of the recent spike in enforcement activity by the United States Environmental Protection Agency (EPA) at construction sites across the country. The EPA’s enforcement and compliance program reached new milestones in 2008, and stormwater runoff at construction sites was a particular target. Corporate owners, real estate developers and contractors were cited for violations and fined by EPA. Violations occurred on all types of real estate projects, including retail, manufacturing and commercial/residential developments.

EPA Penalties in the Millions of Dollars

The stiff penalties for EPA violations cut across different industry sectors. For example, four of the nation’s premier home builders paid a total of $4.3 million to settle claims arising from alleged permitting violations in 34 states and the District of Columbia. The EPA made a similar splash in the retail sector, settling claims against a prominent retail chain for its alleged failure to: (i) obtain proper stormwater permits; (ii) develop adequate Storm Water Pollution Prevention Plans (SWPPPs); and (iii) properly implement best management practices (BMPs) in the construction of multiple retail stores. The retailer paid over $1 million in penalties and agreed to implement a nationwide compliance program for future construction projects. The EPA also ramped up enforcement activity in Massachusetts during 2008. Various residential housing developers, and their contractors, paid fines in the hundreds of thousands of dollars. Some of these fines arose from blatant violations, such as the failure to obtain permits and improperly filling wetlands. The EPA also pressed claims for more subtle infractions, including the failure to maintain inspection records and other documents that would evidence stormwater management activity (or lack thereof).

Are Your Stormwater Designs Compliant?

Given this recent spate of enforcement activity, contractors and project owners should refocus their efforts to develop and implement a stormwater design that meets the requirements of the federal Clean Water Act (CWA) and all applicable state and local regulations. Proper permitting is the first step. Stormwater permits do not require zero discharge, rather, they seek to limit the amount of sediment that will be discharged over the course of a certain period of time. Therefore, the heart of the permit is the SWPPP, which focuses on two primary requirements:

1) a site description identifying sources of pollution in stormwater discharges

2) identifying and implementing appropriate measures to reduce potential discharges – also known as BMPs

Sample BMPs include: inspecting and maintaining the integrity and location of silt fences (particularly after rainstorms); using rocks or other materials to cover storm-drain inlets; protecting surrounding wetlands or other sensitive areas through clear demarcation, grading and terracing large slopes; and sequencing construction activities so as to not expose soil for long periods of time. In addition, new low-impact development methods are now being created to better retain, infiltrate and reuse stormwater on site. These methods include, among others, the use of pervious pavement technology.
Avoiding an EPA violation will require assiduous SWPPP management. That is, the party contractually responsible for stormwater discharge must not only implement the BMPs, but also maintain the appropriate training documentation, subcontractor certifications, construction activity logs, corrective action logs, inspections reports (periodically and after all storm events), and other necessary documentation. Your SWPPP should also be periodically reviewed for a determination of whether any amendments are necessary as the site develops.
Determining what constitutes compliance with the SWPPP (which can vary slightly from state to state), and its BMPs, can be difficult. However, the failure to strictly implement and manage SWPPPs can create ambiguities that may cause significant legal expense, project delay, and adverse publicity for the project and all parties involved. Given the recent increase in EPA enforcement activity, contractors and project owners should retain design professionals with proven track records in this area to design, implement and assist in managing a proper stormwater management plan.

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