Stay Compliant With the Updated NPDES Permit

During the past decade, lawsuits arising from violations of federal and state environmental regulations have made environmental compliance a critical topic. In particular, the National Pollutant Discharge Elimination System (NPDES) Construction General Permit covering stormwater discharges from construction activities has been a major issue for the construction industry. 

The Environmental Protection Agency (EPA) replaces the permit every five years, with the 2017 permit replacing the 2012 permit last February. The 2017 permit continues to include effluent limitations, requirements for self-inspections, corrective actions, staff training, development of a stormwater pollution prevention plan (SWPPP), and permit conditions applicable to construction sites in specific states, Indian country lands and territories. 

The most controversial and significant change is language making all operators at a site jointly and severally liable for any permit violation. Compliance with the permit is joint and several for all operators, regardless of whether there is a group SWPPP or several individual SWPPPs. The EPA’s definition of operator includes the owner and general contractors, and the agency’s focus appears to be specifically on operators associated with the same site through a common plan of development or sale. While challenges have been filed contesting this language, those lawsuits will not be resolved until the end of the year at the earliest. In the meantime, all covered operators will need to closely watch stormwater-related activities—even those outside their scope of work.

The rest of the changes are less controversial, but still important. The permit signals an initial move toward electronic filing and reporting procedures. Under the 2017 permit, the EPA’s NPDES eReporting Tool must be used to electronically prepare and submit Notices of Intent and Notices of Termination to start and stop coverage. This change is required by the EPA’s NPDES Electronic Reporting rule, which took effect in December 2015. The rule applies nationwide, and several states, including Georgia, Nebraska, Oregon and Rhode Island, have already announced they will require use of the eReporting tool when they reissue their construction stormwater permits.   

In an effort to increase construction site operator accountability to the public, as well as enforcement by the public, the 2017 permit has expanded notice requirements at construction sites. Like the 2012 permit, the 2017 permit requires construction operators to post a sign or other public notice of permit coverage. However, the notice also must include information notifying the public how to contact the EPA to report a visible discharge of pollution from the construction site. The notice must inform the public how to obtain a copy of the permit and be posted near the construction site entrance.  

Under the 2012 permit, stockpiles and land clearing debris needed temporary stabilization “where practical.” Now, all inactive stockpiles and land clearing debris piles that will remain unused for 14 or more days must be covered or temporarily stabilized. 

The lids on construction and domestic waste containers must be closed when not in use and at the end of the business day. If waste containers that might leak do not have lids, a cover or similarly effective means must be used to minimize the discharge of pollutants.   

For demolition sites meeting certain criteria, controls must be implemented to minimize the exposure of PCB-containing building materials to precipitation and stormwater.

The 2017 permit also clarifies certain technology-based effluent limits, contains a modified approach to stabilization deadlines, provides limitations for discharge into sensitive waters, prohibits non-stormwater discharges of external building washdown water containing hazardous substances, and contains new notice of intent questions.  

One significant improvement in the 2017 permit is language clarifying that the details of the jobsite SWPPP are not enforceable. Instead, the permit explains that the SWPPP is an “external tool” that the operator is supposed to “modify and retool” to comply with the permit. Instead of enforcing compliance with the SWPPP, the permit lists legally enforceable requirements, including “the requirement to develop a SWPPP, to keep it updated and to include in it all of the required minimum contents.” 

If the EPA’s process for developing a SWPPP is followed, the specific contents of the SWPPP are not enforceable. 

Thomas Ward is a partner in the Atlanta office of Swift, Currie, McGhee & Hiers LLP. For more information, email tom.ward@swiftcurrie.com.

To obtain a copy of the 2017 NPDES permit and accompanying fact sheet, visit epa.gov/npdes/2017-construction-general-permit-cgp.