Construction, Regulatory Developments

EPA Proposes Clarifications for Construction General Permit

Responding to petitions for review from the National Association of Home Builders and the Chesapeake Bay Foundation, the EPA is proposing modifications to its 2017 Construction General Permit (CGP). The CGP comprises National Pollutant Discharge Elimination System (NPDES) requirements for construction site operators disturbing 1 or more acres of land or less than 1 acre but part of a larger common plan of development or sale if that plan will ultimately disturb 1 acre or more. The petitioners raised concerns about several confusing aspects of the CGP and its fact sheet.

Construction machinery

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In the proposal, the EPA indicates that it agrees that changes are appropriate in three areas—definition of the term operator; alignment of the CGP with the Agency’s Effluent Limitations Guidelines and New Source Performance Standards for Construction and Development (the C&D Rule); and division of permit responsibilities when there are multiple operators at a single construction site.

Proposal Is “Narrow”

The EPA issued the CGP in January 2017; the 5-year term of the permit expires February 16, 2022. The CGP, as it is now written, will remain in effect while the EPA pursues the proposed changes. According to the Agency, the proposal is “narrow” and would not affect the underlying, substantive requirements of the CGP (e.g., the eligible coverage area; the number or type of entities eligible to be covered by the CGP; and the 5-year permit term).

The EPA implements the CGP in New Hampshire, Massachusetts, New Mexico, and Idaho (until July 1, 2021, the date Idaho becomes authorized to implement the NPDES Stormwater program), as well as most Indian country lands and areas in selected states operated by a federal operator. Permit coverage is also available to operators in Puerto Rico, the District of Columbia, and the Pacific Island territories, among others.

Examples of Operator

In the CGP, the EPA included parenthetical examples of the type of party that may be considered an operator; under the CGP, the operator is the party responsible for complying with the terms of the permit. The examples were included in response to requests to make the meaning of operator as clear as possible. Examples included language stating that in most cases, the operator was either the owner of the site or the general contractor, that is, the parties with operational control over the site. The petitioner stated the examples only created more confusion because the phrase in most cases means that there are occasions when the owner may not have operational control of the site. The EPA agrees and proposes to remove the parenthetical examples.

Alignment with C&D Rule

The EPA proposes three changes to the CGP to better align the permit with the C&D Rule:

  • Change language to more precisely convey that dust control is important for preventing sediment from being discharged in stormwater.
  • Streamline language to more precisely focus on controlling stormwater discharges to minimize erosion at discharge points.
  • Clarify that “minimization of exposure” is not required where the exposure to precipitation and stormwater will not result in a discharge of pollutants or where exposure of a specific material or product poses little risk of stormwater contamination (such as final products and materials intended for outdoor use).

Multiple Operators

The EPA proposes to remove references to joint and several liability from the current permit since they are, in the Agency’s view, an inaccurate explanation of what the permit compliance duties are for multiple operators who share implementation responsibilities under the permit. In addition, the EPA proposes to clarify that operators who divide responsibilities do not have to duplicate permit-related functions if one operator is appropriately implementing the requirement for the rest of the operators to be in full compliance with the permit.

For example, if Operator A relies on Operator B to satisfy its permit obligations, Operator A does not have to duplicate those permit-related functions if Operator B is implementing them for both operators to be in compliance with the permit. However, Operator A remains responsible for permit compliance if Operator B fails to implement any measures necessary for Operator A to comply with the permit.

The EPA says that it expects that the proposed changes would have no impact on the cost of complying with the CGP.

The proposal was published in the December 12, 2018, Federal Register (FR).

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