AGC Steers EPA Clear of Environmental Extremes in 2012 Stormwater Permit
February 22, 2012

The U.S. Environmental Protection Agency (EPA) has now finalized its 2012 construction general permit (CGP), which applies to and authorizes stormwater discharges from construction projects that disturb one or more acres of land in the areas where EPA is the permitting authority.

While far more burdensome than the agency’s old permit, the new permit is a far cry from the one that EPA proposed in April of 2011.  Gone is the placeholder for a rigid numeric limit on the turbidity of the rain water running off of construction jobsites.  Gone are less rigid but equally burdensome “benchmarks” for rain water running into impaired water bodies.  Gone are onerous requirements for monitoring runoff, and for reporting the results.  Gone are the related risks of costly citizen suits.  And added is a significant measure of flexibility to tailor stormwater controls to fit the unique characteristics of each jobsite.  For months, AGC sustained an effort to educate EPA to the realities of the construction industry, and now the results are clear:  AGC has prevented the agency from going to the extremes that had so seriously threatened the construction industry.

And this success extends well beyond the areas where EPA is the permitting authority.  The permit that EPA administers and enforces in those areas has always had a major influence on the state-issued stormwater permits that apply to most of the country.   The ripple effects of AGC’s success will be far and wide.

Directly Affected Projects

Effective Feb. 16, EPA’s 2012 National Pollutant Discharge Elimination System (NPDES) CGP applies in four states (i.e., Idaho, Massachusetts, New Hampshire, and New Mexico); the District of Columbia; Puerto Rico; all other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four states (i.e., Colorado, Delaware, Vermont, and Washington); and most Indian lands and for a few other specifically designated activities in specific states.   If you are planning a new project located in an area where EPA is the permitting authority, or if you will continue to work on a project that is currently covered by the 2003 or 2008 CGP, you are required to obtain coverage under the new 2012 CGP by the deadlines specified in the permit.

AGC Scores Points

AGC’s hard work and continued communication with EPA during the permit re-issuance process has had its intended effect.  Taking full advantage of its unique working relationship with EPA, and the association’s credibility in the larger environmental community, AGC persuaded EPA to make all of the changes that the AGC’s Environmental Forum considered most important.  EPA significantly modified the proposed CGP to address: the premature inclusion of a numeric limit on the turbidity of stormwater discharges from larger construction sites and associated monitoring requirements, the unsubstantiated and costly benchmark limits and monitoring requirements for discharges to sediment- or nutrient-impaired waters, the onerous public reporting requirements to ensure compliance with the limits, and the overly prescriptive nature of the erosion and sediment control, stabilization, and pollution prevention requirements.

  • No Numeric Turbidity Limit or Monitoring Requirements– The final permit omits the numeric discharge limits and relating monitoring and reporting requirements that EPA once threatened.  In the proposed CGP, EPA included a placeholder for a turbidity discharge limit — dictating how much dirt is allowed in stormwater that runs across larger construction sites — as well as proposed implementation requirements including monitoring and reporting protocols.  The proposed CGP would have required a trained employee to calculate the average turbidity value of all of the samples collected during a rain event from every discharge point at the jobsite, and any exceedance of the daily maximum value for turbidity would have amounted to an automatic permit violation. (Failure to take corrective action would have been a separate violation.) AGC’s comments explained why EPA remains far from ready to impose a strict numeric limit on the turbidity of construction stormwater runoff, much less dictate related requirements for monitoring such runoff, or reporting test results.  “EPA must promulgate and defend a complete C&D ELG [Construction & Development Effluent Limitation Guidelines rule], and give both permitting authorities and the regulated community time to assess its requirements, before it can determine the most efficient and effective monitoring protocols and related requirements,” AGC wrote in its comments on the proposed CGP. [Note:  In mid-2010, both industry and the U.S. Small Business Administration mounted a legal challenge that forced EPA to re-examine the data underlying its December 2009 numeric turbidity limit of 280 nephelometric turbidity units (NTU).  EPA finally conceded that it had “improperly interpreted the data” and the calculations supporting the limit were based on numerous factual errors.  EPA has suspended indefinitely the 280 NTU limit and is working to propose a “correction” rule.]
  • No “Benchmark” Limits or Monitoring Requirements for Discharges to Impaired Waters – In the final permit, EPA retained its current and far more rational approach to meeting existing water quality standards and eliminated the proposed benchmark monitoring requirements.  The proposed CGP would have set “benchmark” or pollutant concentration limits for discharges to sediment- or nutrient-impaired waters above which would have triggered further monitoring and more stormwater controls.  EPA proposed very stringent (and probably unachievable) benchmarks by failing to account for the natural variability in stormwater discharges (i.e., assigning a value of “0” to the natural background level of each pollutant).  AGC stated in its comments: “EPA has not provided any justification or scientific rationale for its benchmark, though it could have costly consequences.  Any exceedance would require prompt corrective action, forcing the permittee into a perpetual cycle of action to enhance and upgrade its stormwater controls … [and any] failure to take prompt corrective action would be a permit violation and subject to enforcement action.”
  • Flexibility for Contractors to Meet Permit Requirements – Directly responding to many of AGC’s concerns, the final permit provides exceptions to the more prescriptive “Best Management Practice” (BMP) requirements (e.g., 50-foot buffers, sediment pond surface outlets, stabilization deadlines) and offers the site operator a waiver from certain permit requirements that would be “infeasible” to meet – meaning “not technologically possible or not economically practicable and achievable in light of best industry practices.”  The proposed CGP would have mandated prescriptive erosion and sediment control requirements that, in some instances, may have been impossible to meet.  AGC’s comments pointed out the many instances where EPA had wrongly disregarded situations that would technically or economically preclude compliance due to pre-existing site conditions or the nature and location of the earth disturbance.
  • No Electronic or Online Reporting of Stormwater Data – The final CGP does not require permittees to report electronically to EPA any performance results.  The proposed CGP would have required permittees to submit turbidity sampling results in electronic format to EPA once a month. On sites where the benchmark monitoring requirements applied, the proposed permit would have required the permittee to also report those monitoring results on a quarterly basis.  In addition, permittees would have faced a 24-hour reporting deadline for any release of a prohibited discharge or a discharge that exceeds the numeric turbidity limit (if applicable) or applicable water quality standards.  AGC expressed serious concern that the introduction of stormwater sampling and electronic/online reporting would provide the general public with free access to a construction company’s discharge monitoring results. This would have led to more citizen suits and attempts to slow down or stop controversial projects.

During the permit re-issuance process, AGC submitted a comprehensive 42-page comment letter to EPA  on the proposed CGP and provided follow-up information and advice on behalf of the construction industry.  Making good use of AGC’s Regulatory Action Center, hundreds of AGC members also weighed in with EPA.  AGC also published numerous newsletter articles on the problems with the proposed CGP, distributed a list of 26 questions for members to respond to, hosted a free members-only webinar on the proposed permit, and conducted conference calls with the Environmental Forum Steering Committee and Stormwater Task Force members.  AGC’s extensive outreach and education helped EPA craft an enhanced stormwater permit that, for the most part, recognizes and comports with standard industry practices.

What’s New with EPA’s 2012 CGP?

Notwithstanding AGC’s successes, compliance with the 2012 CGP will require a substantially greater cost and effort.  At 151 pages, the new permit is twice as long as the 2008 version.  Most of the new or expanded requirements are deemed by the agency to be necessary to implement the non-numeric provisions in its 2009 “Effluent Limitations Guidelines” for the “Construction & Development Industry” (C&D ELG rule) – which the agency has not suspended, and are still in effect (see 40 CFR Part 450.21).  EPA chose to incorporate these non-numeric provisions even though they are still being challenged in the 7th Circuit Court of Appeals (Wisconsin Builders Ass’n v. EPA, 7th Cir., No. 09-4113, 8/24/10; 164 DEN A-9, 8/26/10).  AGC and other stakeholders also sought to convince EPA to delay the final CGP until 2013, when litigation will be resolved, but EPA refused to go that far.  It remains to be seen how – or if – the 7th Circuit case may affect the 2012 CGP. 

Below are the “Top 10” of the many differences between EPA’s old and new permits:

  1. NEW Eligibility for emergency-related construction. The 2012 CGP allows for the immediate authorization on a case-by-case basis of construction activities required to response to public emergencies and avoid imminent endangerment to human health or the environment.
  2. NEW Prohibitions. The use of cationic treatment chemicals is not eligible for permit coverage unless the applicable EPA Regional Office specifically approves its use.  Also, wastewater discharges from washout of concrete, cleanout of stucco, paint, release oils, curing compounds and other like construction materials are prohibited under the 2012 CGP.  Additionally, fuels, oils, soaps and solvents used in the maintenance and operation of vehicles are prohibited from being released into stormwater discharges.
  3. REVISED “Operator” definition and CGP authorization process.  EPA has simplified and clarified the definition of “operator” and made clear that “sub-contractors” do not have to get permit coverage.  EPA is still requiring multiple parties (i.e., project owner and general contractor) to file a Notice of Intent (NOI) and obtain permit coverage for essentially the same discharge. EPA settled on a 14-day (as opposed to 30-day) NOI review period, except in certain circumstances when authorization can be immediate (or even retroactive). The final permit relies on EPA’s electronic NOI system, with paper NOIs allowed only with approval from the applicable EPA region.
  4. NEW Mandatory Erosion and Sediment Controls.  As indicated above, EPA has added many new requirements as per the non-numeric provisions of the 2009 Effluent Limitations Guidelines rule, but the final permit also provides additional flexibility and exemptions.  EPA’s Fact Sheet explains what it intends for each permit requirement, including “provide and maintain natural buffers,” “minimize steep slopes,” and “minimize soil compaction,” and other related BMPs.
  5. NEW Soil stabilization requirements. The permit includes modified stabilization requirements that specifically define what EPA expects for temporary and final stabilization.
  6. NEW Pollution prevention requirements. In addition to adopting the specific C&D ELG rule requirements for pollution prevention and the prohibition of certain discharges, the 2012 permit includes specific location restrictions and design standards, such as the installation of secondary containment or cover activities.
  7. NEW Water Quality and Anti-Degradation Protections. Similar to the 2008 CGP, the 2012 permit will meet state water quality standards and satisfy new anti-degradation requirements by relying upon full implementation of BMPs and compliance with the permit terms.  There are additional specific requirements (i.e., more rapid stabilization and increased inspections) that apply to sites discharging to waters impaired for common pollutants associated with construction activities. EPA has a mapping tool that will help with determining if sites discharge to impaired waters.  [Note:  You will be able to access the mapping tool after you register with the eNOI system.]  Again, EPA removed all benchmark monitoring or turbidity sampling provisions it proposed (see above).
  8. REVISED Site inspection requirements. The 2012 permit requires operators to visually assess the quality of the discharge if the site inspection occurs during a discharge-generating rain event.
  9. NEW Corrective action requirements. Although the 2008 CGP required corrective action, the 2012 permit goes a step further by including specific requirements instructing the permittee as to what conditions trigger action and what deadlines apply.
  10. NEW Notice of Termination (NOT) procedures. EPA has established additional requirements in the 2012 permit that affect when a site may terminate coverage under the CGP.

Additional Information

Finally, EPA has scheduled a webcast on the permit for March 15 – (online registration will be available soon!) – http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.  It also has updated its Stormwater Pollution Prevention Plan (SWPPP) template and will be updating related guidance – http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.  The Agency also is creating an inspection template that it will release soon.

For detailed compliance questions, contact EPA’s Greg Schaner or Erika Farris at schaner.greg@epa.gov  or farris.erika@epa.gov. To view or download the complete text of the 2012 CGP and EPA’s Federal Register notice, visit: http://www.epa.gov/npdes/stormwater/cgp.

For more information, contact Leah Pilconis at pilconisl@agc.org.