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Construction-Related Stormwater Management: Is Your Project In Compliance with 2017 Rules?

constructionRules related to stormwater discharges from construction activities took effect last week that require construction site operators to, among other activities, comply with pollutant discharge limits and properly store chemicals so that they don’t enter waterways.

The EPA’s 2017 construction general permit (CGP) took effect on Feb. 16 and replaces the 2012 CGP. The 2017 permit will expire in five years.

The agency says the stormwater program is intended to protect water quality from construction-related discharges. As stormwater flows over a construction site, it can pick up pollutants like sediment, debris, and chemicals and transport them to nearby storm sewer systems or directly into rivers, lakes, or coastal waters.

Similar to the 2012 CGP, the updated rules include discharge limitations and requirements for self-inspections, corrective actions, staff training, and development of a Stormwater Pollution Prevention Plan, Forester reports.

It also includes several new requirements. The Federal Register highlights nine notable changes: streamlined and simplified language; prohibition of non-stormwater discharges of external building washdown water containing hazardous substances; clarification of certain technology-based effluent limits; additional requirements for notice of permit coverage signs; revised requirements for stockpiles; a  modified approach to stabilization deadlines; new requirements for waste containers; limitations for discharge into sensitive waters; and new notice of intent questions.

As attorneys Peter Knight and Tavo True-Alcala write on the Northeast Development Law Blog, the most controversial element of the new permit is language making all operators at a site jointly and severally liable for any permit violation.

Several industry groups such as the National Association of Home Builders, Associated General Contractors of America, Federal Stormwater Association, California Stormwater Quality Association, and California Building Industry Association filed comments on the draft CGP opposing joint and several liability on covered operators. They argue this will unfairly punish responsible operators, forcing them to “babysit other parties involved in the project to ensure compliance,” Knight and True-Alcala write. “Given the number of parties on any given development project and the different responsibilities and legal relationships between them, the threat of joint and several liability poses serious concerns.”

It is vital for organizations to understand the impact of these changes to their projects, especially as these changes may increase the resources, time and effort needed to comply with stormwater management obligations, says environmental attorney Tamar Cerafici.

The new regulations also increase the risks of facing enforcement action from the permitting agencies. Enforcement issues may end up being debilitating and non-compliance can lead to hefty fines.

Organizations must understand how to make the case for “greening” their compliance program and have sustainable stormwater management in place, to avoid enforcement action in 2017, Cerafici says.

 

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