- What is happening? US Environmental Protection Agency (EPA) published Its proposed 2022 National Pollutant Discharge Elimination System (NPDES) construction general permit (CGP) for public comment, which authorizes the discharge of storm water from construction activities in areas where the EPA is the NPDES permitting authority. Public comments are due on July 12, 2021.
- Who is affected? Short Term: Construction activity operators in jurisdictions that have EPA NPDES permitting authority, including Massachusetts, New Hampshire, New Mexico and the District of Columbia. Long Term: Construction activity operators in states that model their NPDES stormwater construction general permits after the EPA’s CGP.
- What should I do? Building contractors, companies that commission a substantial number of construction projects, and related trade associations are potentially affected by the proposed changes and should consider submitting public comments by the July 12 deadline.
EPA’s as proposed The 2022 CGP includes several significant changes from the current CGP, which the EPA released in 2017. This alert provides a high-level overview of the proposed changes.
The CGP, as a general permit, allows operators to discharge stormwater associated with construction activities in jurisdictions that have EPA permitting authority, including Massachusetts, New Hampshire, New Mexico and the District of Columbia. Many NPDES-authorized states have historically modeled their own construction general permits over federal permits. States with permits drawn up after the CGP can be expected to revise their respective permits, when they are ready for renewal, to incorporate the amendments in the final 2022 CGP. As a result, operators across the country—not just in states where the EPA is the permitting authority—should watch changes to this federal permit closely.
Important changes from 2017 CGP
The proposed CGP 2017 replaces the MSGP in several ways, including the following:
- Difference between routine maintenance and corrective action. The proposed CGP seeks to clarify the distinction between routine maintenance and corrective action. Under the proposed permit, routine maintenance includes repair or replacement that can be completed within 24 hours. If an otherwise routine maintenance activity must be performed “repeatedly (ie, 3 or more times)”, the activity becomes a corrective action. The EPA is also proposing that any repair or replacement activity that takes more than 24 hours to complete is corrective action.
These amendments would increase the burden on operators to document otherwise routine maintenance activities, such as cleaning of silt fences or sedimentation basins. These activities, which occur regularly and are consistent with the normal functioning of these controls, must be performed in line with permit deadlines and documentation requirements for corrective action.
- Clarification regarding flexibility for arid and semi-arid regions. The 2017 CGP provided exceptions to the stabilization and site inspection requirements during the “seasonal dry period,” an undefined term. The EPA now proposes to define a “seasonal dry period” as “a month in which the long-term average total rainfall is less than or equal to 0.5 inches.”
- Requirements for inspection during snow conditions. The proposed 2022 CGP would clarify that “a site inspection is required within 24 hours following snow melt due to accumulation of 3.25 inches or more of snow.” The CGP previously did not have a numerical limit to determine when to observe a snowfall.
- Availability of important documents in electronic form. The proposed 2022 CGP includes permit text that explicitly provides that electronic versions of the Stormwater Pollution Prevention Plan, inspection reports and corrective action logs may be used.
- Endangered Species Act (ESA) eligibility determination. When completing a notice of intent (NOI) for permit coverage, an operator must certify that the project meets at least one of the six eligibility criteria for endangered species protection. The EPA has proposed several updates to clarify the process for making these eligibility determinations. Most of the updates relate to determining whether species listed in the ESA or Designated Important Habitat are located within the “action zone” of the site. For example, the EPA would not allow reliance on state resources in making such a determination. The EPA finalized similar changes when it Was released Its 2021 multi-sector general permit for discharge from industrial activity.
- perimeter control requirements. The CGP requires a number of erosion and sediment control measures, in which an operator must establish sediment controls around the perimeter of the site (like, silt fencing). The proposed 2022 CGP clarifies that when there are natural buffers (like, vegetation), perimeter control should be established to upgrade the natural buffer.
- Documentation signs of sedimentation. The proposed 2022 CGP would require operators to examine sedimentation downstream of the point of discharge and assess whether sedimentation may have been caused by discharge from the site. If downstream sedimentation is present, it must be documented by the operator.
This proposed expansion of inspection requirements is significant because the EPA and other enforcers often view such sedimentation as evidence of a violation of water quality standards, although this is not universally the case. Issues with the proposed expansion of in-stream inspection obligations include (1) the potential presence of both natural and anthropogenic sources for any downstream sediment deposit; (2) the inability of inspectors to access or assess other potential sources of sedimentation; (3) the ability of inspectors to assess the site’s relationship to downstream sedimentation; (4) the need to specify how far this obligation is attached and (5) the lack of clarity that inspectors must record Conditions But don’t try to leave those terms off the site.
NOI update. The NOI form, which will have to be submitted by operators while seeking coverage under the CGP, will contain new questions which are intended to address: (1) the water at the site will be discharged; (2) there are other operators covered by the CGP on the same site; and (3) site inspection personnel shall meet the proposed updated training requirements discussed below.
The EPA is also requesting comment on a number of possible changes:
- Revised scope of permit coverage eligibility. To be eligible for coverage under the CGP, a potential permittee must be an “operator” of a construction activity as defined in the CGP. The EPA wants comment about whether it should expand the definition of “operator” to explicitly “parties who determine acceptance of work and pay for work performed.” The EPA believes the potential amendment would “better ensure that all parties with operational control over the project are allowed.”
The EPA also requests comment on whether the current definition of an operator already “includes those parties to be addressed by the new language, or if a separate amendment to the operator’s definition includes those types of parties.” It would be helpful to clarify which should be allowed as operators.”
- Prohibition on extraction of water from contaminated sites. The 2017 CGP allows the construction of non-hurricane in which the water discharge is organized. The EPA is seeking comment on whether it should opt out of this authorization, and explicitly prohibit discharge from, contaminated sites (i.e., “sites subject to existing or prior remedial activities”). [such as] Superfund/CERCLA or RCRA sites”). EPA seeks further public comment “whether certain sites should be given case-by-case flexibility if storm water interaction with underground contaminants is prevented [the] Implementation of cleaning controls such as capping.”
- Turbidity Monitoring Requirements for Discharge of “Sensitive Water”. The EPA is considering the need for either turbidity benchmark monitoring or turbidity indicator monitoring, which monitors sediment-impaired water or dewatering discharges in Tier 2, Tier 2.5, or Tier 3 designated waters. Under the former approach, a weekly average benchmark level for turbidity would be determined; Will speed up necessary corrective action “to determine the source of the problem and make any necessary repairs or upgrades to dewatering controls to reduce the level of turbidity.” Under the latter approach, operators would monitor and report turbidity, but no benchmark or corrective action would apply.
- Waiting period for discharge authorization. The EPA is seeking comment on whether the waiting period between the date the NOI is submitted and the date the operator is authorized to discharge leave should be extended from 14 to 30 days. The purpose of this time frame is to allow for inter-agency review of operator’s certificates regarding potential impacts on endangered or threatened species.
- Step by step approach to disturbance. EPA seeks feedback on whether the stabilization deadline already established in the 2017 CGP is “effective in encouraging phasing out”  Construction projects so as not to disturb more than 5 acres at any one time. The EPA seeks further comment on whether it should alternatively prohibit disturbing more than 10 acres of land at once, with or without case-by-case exceptions.
- Exclusion of certain types of construction waste from pollution prevention requirements. The EPA is seeking comment on whether certain types of construction waste should be excluded from pollution prevention requirements (meaning, should be allowed to be stored outdoors, uncovered, without any secondary containment or other stormwater controls applicable to construction waste because exposure to storm water will not discharge pollutants.
- training requirements. The EPA is proposing a number of changes to the training requirements, including an EPA inspection training course for inspecting personnel and a new requirement to pass final exams or hold certification from a third-party training course. The EPA is seeking comment on how it should design its training program and “criteria used to describe minimum requirements for third-party training programs.”
- Photographic documentation of site stabilization. The proposed CGP includes a requirement that operators provide photographic evidence of compliance with site stabilization requirements when seeking termination of coverage. The EPA is requesting comments as to what additional criteria, if any, should be required for such photographs.
The draft 2022 CGP and the attached fact sheet along with supporting documents are available for public comment till July 12, 2021. Interested persons can also request a public hearing on the proposed changes. Operators and trade unions affected by the proposed changes may consider submitting public comments.
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