Construction, Environmental Permitting, Regulatory Developments

New Construction General Permit for Stormwater Proposed by EPA

The EPA is seeking public comment on its proposed 2022 Construction General Permit (CGP) for stormwater discharges from construction activity until July 12, 2021.

stormwater discharge“Once finalized, this permit will replace the 2017 CGP, which expires on February 16, 2022, and will cover stormwater discharges from construction activities in areas where EPA is the NPDES (National Pollutant Discharge Elimination System) permitting authority,” according to the EPA.

The industry that will be impacted in the short term includes construction operators in Massachusetts, New Hampshire, New Mexico, and the District of Columbia. Long-term impacts will include any construction operators working “in states that model their NPDES stormwater construction general permits after EPA’s CGP,” according to an article in Lexology by international law firm Beveridge & Diamond PC.

The proposed 2022 CGP includes significant changes, which are divided into two categories by the EPA. The first category covers changes to clarify the permit, including:

  • New language to state the EPA does not endorse specific stormwater control or stormwater pollution prevention plan (SWPPP) products or vendors.
  • Differentiation between routine maintenance and corrective action, which includes defining routine maintenance as repairs to or replacement of stormwater controls that can be completed within 24 hours of first discovering the need for the repairs or replacement. Any repairs or replacements that take longer than 24 hours will be classified as a corrective action.
  • Clarification “that perimeter controls must be installed upgradient of any natural buffers except in situations where the perimeter control is being used by the permittee to fulfill one of the buffer alternative requirements, in which case the permittee would not be required to install a second perimeter control.”
  • A definition of the term “seasonally dry period” and “includes resources in the form of maps and zip code tables to assist construction operators located in an arid or semi-arid area in determining when they may be operating during a seasonally dry period of the year.”
  • A proposal “to add a numeric inspection threshold for snowfall precipitation that is equivalent to the 0.25-inch rain event, which triggers the need for an inspection if the operator chooses to inspect its site on a bi-weekly basis.… This change would clarify that where there is a discharge from snowmelt caused by an accumulation of 3.25 inches or greater of snow, an inspection would be required.”
  • Clarification that electronic versions of the SWPPP inspection reports and corrective action logs may be used as long as they meet certain minimum requirements.
  • Proposed “updates to Appendix D of the CGP, which establishes procedures for operators to follow in determining their eligibility for coverage with respect to the protection of endangered and threatened species.” These changes basically clarify “existing procedures or updates to resources that operators can use to determine whether species are located in the ‘action area’ of the construction site.”

The second category of changes adds specificity to the CGP requirements, including:

  • Perimeter control installation and maintenance requirements. “… [I]f there is evidence of stormwater circumventing or undercutting the perimeter control after a storm event, the operator would be required to extend the length of the perimeter control or repair any undercut areas, whichever applies.”
  • Pollution prevention requirements for chemicals used and stored on-site. Control requirements are established “for smaller-sized containers by requiring that the operator use water-tight containers, place them on a spill containment pallet (or similar device) if kept outside, and have a spill kit available at all times and in good working condition, and personnel available to respond quickly to a spill or leak,” according to the EPA. “The proposed permit also includes controls that are more suitable to larger volumes of chemicals on site, such as requiring a temporary roof or secondary containment to prevent a discharge from a leak or spill.”
  • Dewatering discharge requirements. “The proposed revisions to the permit add clarity to the existing pollutant control provisions, increase the number of inspections required while the dewatering discharge is occurring, establish a tailored checklist of problems to review during the inspection, and identify specific triggers for when corrective action is required.… During an inspection of the dewatering operation, the operator would also be required to take photographs of (1) the dewatering water prior to treatment by a stormwater control(s) and the final discharge after treatment; (2) the stormwater control; and (3) the point of discharge to any waters of the U.S. flowing through or immediately adjacent to the site.”
  • Signs of sedimentation attributable to construction site discharges. Changes are proposed to document signs of sedimentation attributable to construction site discharges, such as requiring operators to account for the amount of sediment leaving the site.
  • Training requirements. Modifications are proposed to strengthen the training requirements for site inspectors to specify “that anyone carrying out inspections must either (1) have completed the new EPA construction inspection course developed for this permit and passed the exam, or (2) hold a current valid certification or license from a program that covers essentially the same principles as EPA’s inspection course.” The Agency is seeking comments on the specifics of how to design this training program and the “criteria used to describe the minimum requirements for third-party training programs.”
  • Site stabilization. The proposed changes include the requirement that operators “take and submit photographs showing the stabilized areas of the site following completion of construction.”
  • Notice of Intent (NOI). “The NOI form, which operators must submit when seeking coverage under the CGP, would include new questions aimed at addressing whether: (1) dewatering water will be discharged at the site; (2) there are other operators covered by the CGP at the same site; and (3) personnel conducting site inspections will meet the proposed updated training requirements,” according to Beveridge Diamond.

Construction operators impacted by these changes should consider reviewing the proposed permit in detail and submitting public comments regarding these proposed changes. Comments can be submitted on www.regulations.gov for docket ID # EPA-HQ-OW-2021-0169.