March 27, 2012

EPA's New Construction General Permit: Contractors Beware

Holland & Knight Alert
Dianne R. Phillips

On February 16, 2012, one day after the 2008 permit expired, the U.S. Environmental Protection Agency (EPA) issued the new construction general permit (CGP) required for jurisdictions where there is no delegated state permitting agency governing stormwater and non-stormwater construction-related discharges to waters of the United States from construction sites with disturbance of one acre or more in size.

This new CGP implements the requirements from the effluent limitations guidelines and new source performance standards issued by EPA on December 1, 2009, to control the discharge of pollutants from construction sites known as the “Construction and Development Rule” or “C&D Rule.” See 74 Fed. Reg. 62996 and 40 C.F.R. 450.21.

This permit applies to applicable construction sites in New Hampshire, Massachusetts, Idaho, New Mexico, Indian Country lands in many states, federal facilities in many states, the District of Columbia, Puerto Rico and all other U.S. territories (except the Virgin Islands). It imposes specific requirements on contractors who have day-to-day operational control of site disturbance activities, as well as owners and developers who have operational control over construction plans and specifications. The CGP clarifies that all operators must apply for permit coverage, including contractors. Under the prior permit it was common for the owner’s environmental consultant to prepare the required stormwater pollution prevention plan (SWPPP) and obtain permit coverage, copies of which were then provided to the contractor. That practice will no longer suffice and contractors are required to seek permit coverage independently from the owner, although a common or group SWPPP is permitted so long as it addresses the requirements for each operator (which is defined in the CGP).

In addition, the final permit includes a number of new or modified requirements which differ from the 2008 CGP. Highlights of some of the key changes include the following:

Structure/Appearance of Permit

The permit was restructured to be better organized and presented in a more readable manner. This added clarity will also enhance its enforceability. For instance, the permit’s stormwater control requirements are organized into distinct and related categories, such as erosion and sediment control requirements, stabilization requirements and pollution prevention requirements. Not all of the specificity proposed in the draft published in April 2011 was included in the final permit. Accordingly, some of the specific requirements have been revised to reflect more generic performance standards.

Eligibility for Emergency-Related Construction

In a new provision, EPA provides immediate authorization for construction activities required for response to public emergencies (e.g., natural disasters such as a tornado or hurricane, widespread disruption in essential public services). Immediate authorization will enable work that is necessary to avoid imminent endangerment to human health or the environment, or to reestablish essential public services, to proceed without administrative delay. However, the construction operator must submit a notice of intent (NOI) and develop a SWPPP within 30 calendar days after commencing earth-disturbing activities and document the public emergency which gave rise to the immediate need.

Eligibility for Use of Treatment Chemicals

Recognizing the growing use of these chemicals to meet certain state water quality requirements, EPA authorizes the use of polymers, flocculants, or other treatment chemicals at sites provided operators using treatment chemicals comply with the requirements in Part of the permit. The use of cationic treatment chemicals (chemicals that contain an overall positive charge) is not eligible for permit coverage unless the applicable EPA regional office specifically pre-approves its use and determines any additional controls necessary to ensure that the use of such chemicals does not result in an exceedance of applicable water quality standards.

Endangered Species and Historic Properties Requirements

Prior to applying for permit coverage, the project must satisfy requirements related to the protection of listed endangered or threatened species and their critical habitat and to the consideration of impacts to historic properties, or demonstrate inapplicability. See Appendices D and E of the CGP, respectively.

Authorization Process/NOIs

The “waiting period” between application (filing the NOI) and when the permit becomes effective has been increased from seven days to 14 days. This new 14-day timeframe is intended to better reflect the amount of time EPA needs to confirm endangered species-related reviews and historic property reviews that must take place prior to authorization. Originally EPA proposed a 30-day waiting period in the draft CGP which was published for public comment, but EPA compromised on a 14-day period. Operators must use the electronic NOI, or eNOI, process for applying for permit coverage unless filing an eNOI is not feasible, in which case a paper NOI can be used but pre-approval by the applicable EPA region is necessary.

Sediment and Erosion Controls

The final permit includes specific requirements that implement the C&D rule’s sediment and erosion control limits. While some of these requirements are already included in the 2008 CGP, the final permit includes more detail and additional requirements in order to more closely track the language and organization of the C&D rule. The following is a list of new or enhanced requirements:

1. Installation of Sediment Controls Prior to Construction

By the time earth-disturbing activities in any given portion of the site have begun, operators must install and make operational any downgradient sediment controls for the initial site clearing, grading, excavating and other land-disturbing activities, unless infeasible. Under Section, sediment controls must be installed along the entire downgradient perimeter boundary. Following the installation of these initial controls, all other stormwater controls described in the SWPPP must be installed and made operational as soon as conditions allow. For linear projects where installation of perimeter controls may not be feasible, the SWPPP may be used to demonstrate it is impracticable for the entire perimeter and show how these controls are maximized.

2. Repair and Maintenance Requirements

The final permit includes requirements for initiating work to fix problems on the same day that they are found and completing such work by the close of the next work day if the problem does not require significant repair or replacement, or if the problem can be corrected through routine maintenance. Additional time for repairs is allowed if justification is documented. Corrective action reports are required to document all repairs.

3. Buffer Compliance Alternatives

To implement the C&D rule requirement to provide and maintain natural buffers around surface waters, unless infeasible, sites must ensure that any work within 50 feet of surface waters be protected with a buffer area. If possible, a 50-foot natural buffer must be maintained between the disturbed portions of the property and any surface waters. If a 50-foot natural buffer is not feasible, then additional erosion and sediment controls to achieve a reduction in sediment loads equivalent to that achieved by 50 feet of undisturbed natural vegetation must be implemented. Appendix G of the final permit has been added to provide guidance to operators in complying with this requirement.

4. Perimeter Controls

Operators are required to install sediment controls along those perimeter areas of the site that will receive stormwater from earth-disturbing activities.

5. Exit Points

Operators are required to minimize track-out of sediment onto streets and other paved areas from vehicles exiting the construction site. To comply with this requirement, the operator must: (1) restrict vehicle use to properly designated exit points; (2) use appropriate stabilization techniques and other controls, as necessary, at all points that exist onto paved roads; (3) where necessary, use additional controls (including wheel washing) to remove sediment from vehicle tires prior to exit; and (4) remove tracked-out sediment from paved surfaces by the end of the work day in which the track-out occurs or by the end of the next work day if track-out occurs on a non-work day. The draft permit originally included a requirement for a 50-foot stabilization area and wheel washdown areas at the entrance/exit point, but those specific requirements were not adopted in the final permit in favor of a performance-based requirement which prohibits track-out.

6. Storm Drain Inlets

Controls must be installed and maintained to remove sediment from the discharge prior to entry into any storm drain inlets that carry stormwater flow directly from the site to surface water and that are accessible to the operator.

7. Dewatering Practices

Specific controls and discharge restrictions apply to sites that will discharge ground water or accumulated stormwater removed from excavations, trenches, foundations, vaults, or other similar points of accumulation.

8. Stockpile Protection

Stockpiled soil or sediment must be protected from precipitation where practicable through the use of cover or stabilization and must be protected from run-on and run-off using temporary perimeter sediment barriers.

Stabilization Requirements

The permit requires initiation of stabilization immediately upon determining that earth-disturbing activities have permanently or temporarily (for a period of 14 days) ceased on any portion of the site. Efforts must be completed within 14 days, or seven days if the site drains to impaired or sensitive waters.

Pollution Prevention

Beyond adopting the specific C&D rule requirements for pollution prevention and the prohibition of certain discharges, the final permit includes specific control requirements that ensure pollutant discharges are eliminated or minimized, depending on the source. The pollution prevention requirements restrict the discharge of a wide range of construction-related chemicals and materials, including fertilizers, at construction sites and provide detailed requirements covering the storage and handling of construction-related products, materials and wastes.

Water Quality-Based Effluent Limits

In addition to general requirements that protect water quality in all receiving waters, the final permit includes specific requirements that apply to sites discharging to waters impaired for common pollutants associated with construction activities, such as sediment and nutrients, and to sites discharging to high quality waters. For such sites, construction activities are subject to additional requirements, including tighter stabilization deadlines (complete stabilization within seven calendar days of the temporary or permanent cessation of construction activities) and more frequent site inspections. The permit also includes additional requirements for waters identified as Tier 2, Tier 2.5, or Tier 3 for antidegradation purposes. In addition, state specific conditions of the water quality certification are included in Part 9.

Site Inspections

The frequency of inspections generally is increased relative to the 2008 CGP. The storm event size that triggers site inspections for those using storm-based schedules is also decreased from a 0.5-inch storm event to a 0.25-inch storm event. EPA has found that most storm events of 0.25 inches or greater do lead to discharges, so that inspection is warranted if the operator is using a storm-based inspection schedule. For multi-day storms, EPA has also clarified that an inspection is required both during or after the first day of the event and after the end of the event. As in the 2008 CGP, operators may also choose a fixed inspections schedule that is not storm dependent. EPA makes explicit the requirement for permittees to visually assess the quality of the discharge (e.g., color, odor, floating, settled, or suspended solids) if the site inspection occurs during a discharge-generating rain event. Inspection reports must be properly documented and signed by the permittee. EPA has provided sample forms on its website. See

Corrective Actions

Although the 2008 CGP required corrective action, it did not include specific requirements instructing the permittee as to what conditions trigger specific corrective actions and what deadlines apply. The final permit includes specific triggering conditions for corrective action as well as deadlines to fix such problems and document what was done. Contractors should pay particular attention to the paperwork requirements.

Stormwater Pollution Prevention Plan

The SWPPP requirements are modified in accordance with the changes discussed above. In general, the requirements are more specific than, but consistent with, the 2008 CGP. EPA has provided a SWPPP template on its website that is designed to ensure all requisite provisions are included. See

Notice of Termination

EPA includes additional requirements that affect when a site may and is required to terminate coverage under the CGP. Actions which must be taken prior to termination are described including the removal of all temporary stormwater controls and construction materials, waste, and waste handling devices. Notices of termination forms must be filed electronically unless infeasible.

Contractors: Review of the CGP Permit Requirements Is Essential

Contractors are urged to review the CGP permit requirements carefully and/or engage competent professionals to assist them. Operators currently covered by an existing permit are required to (1) apply for a new permit prior to May 16, 2012, and (2) update their SWPPP plans to comply with the new permit requirements. If certain aspects of the new permit cannot be achieved, such as the 50-foot natural buffer zone, the CGP offers flexibility and a waiver of certain requirements if the infeasibility is properly documented. These requirements will impose new and different obligations on contractors, and the liability cannot be passed on by contractual terms. Every contractor involved in site disturbance activities must respond to this new permit in order to avoid potential enforcement action.

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