July 2016

EPA's Proposed 2017 General Permit Regulating Stormwater Discharges from Construction Activities

As many in the construction industry may already know, the current National Pollution Discharge Elimination System (“NPDES”) General Permit – issued under the Clean Water Act's National Pollutant Discharge Elimination System to authorize stormwater discharges from construction activities – will expire on February 16, 2017. As such, the United States Environmental Protection Agency (“EPA”) is in the process of finalizing the new 2017 General Permit, and has recently issued a draft of the newly-proposed permit for review and comment (the “2017 Draft Permit”). The 2017 Draft Permit generally applies to construction site operators that disturb either one or more acres of land or that disturb less than one acre of land if such disturbance is part of a larger common plan or development.

The 2017 Draft Permit proposes a number of significant and notable changes that all members of the industry should be familiar with, should such changes eventually be incorporated in the final 2017 General Permit – which will remain effective for five (5) years following issuance of same. While the 2017 Draft Permit shares an abundance of similarities with the current 2012 General Permit, the most salient changes the industry should be aware of include the following:

1. Streamlining and Simplification of the General Permit: One of the goals of the 2017 Draft Permit is to streamline and simplify the contents and requirements of the permit for ease of understanding and compliance. As such, the 2017 Draft Permit presents such requirements in a generally more clear and readable manner, which should enhance the permittees’ understanding of, and compliance with, such requirements.

2. Technology-Based Effluent Limits Revisions: The EPA proposes to make minor revisions to the technology-based effluent limits in the permit to implement the March 6, 2014 amendments to the Construction and Development Effluent Guidelines and Standards (“C&D Guidelines”). While the 2012 General Permit already incorporates the original C&D Guidelines, the 2017 Draft Permit makes necessary revisions to address the 2014 amendments. Such revisions include, for example, clarification of the applicability of requirements to control erosion caused by discharges, providing additional details on areas where buffers are required, and clarification regarding requirements for soil stabilization, preservation of topsoil, and pollution prevention measures. It should be noted that the 2017 Draft Permit does not provide any new requirements regarding the C&D Guidelines.

3. External Building Wash-Down Hazardous Substances Prohibitions: Currently, the 2012 General Permit authorizes certain non-stormwater discharges associated with construction activity, such as external building wash-downs. The 2017 Draft Permit requires that such activities must no longer employ the use of hazardous substances, such as paint or caulk containing polychlorinated biphenyls (PCBs) in such activities.

4. Public Notice of Permit Coverage and Contact Information: Currently, the 2012 General Permit requires that permittees post a sign or other public notice of permit coverage at a safe, publicly accessible location in close proximity to the construction site. The 2017 Draft Permit adds an additional requirement to the public notice provisions of the prior 2012 General Permit, in that it would require such notices to contain information apprising the public of how to contact the EPA, should they observe stormwater pollution in the discharge.

5. Stockpiles and Land Clearing Debris Piles Requirements: Currently, the 2012 General Permit requires that cover or appropriate temporary stabilization be provided for any stockpiles “when and where practicable.” The 2017 Draft Permit instead requires that cover or appropriate temporary stabilization be utilized for all inactive stockpiles and land clearing debris piles for such piles that will be unused for fourteen (14) or more days, removing the discretion related to practicability.

6. Construction and Domestic Waste Cover Requirements: In an effort to minimize the discharge of pollutants, the 2017 Draft Permit requires waste container lids to be kept closed when not in use, or, for waste containers that do not have lids and could leak, the 2017 Draft Permit requires cover or a similarly effective means to be provided to minimize the discharge of pollutants.

7. Pollution Minimization and Reporting Associated with Demolition Activities: The 2017 Draft Permit requires the minimization of exposure from polychlorinated biphenyl- (PCB) containing building materials to precipitation and stormwater associated with the demolition of structures with at least 10,000 square feet of floor space built or renovated before January 1, 1980. Moreover, the 2017 Draft Permit will require information about the demolition location and associated pollutants to be included and documented in the applicable Stormwater Pollution Prevention Plan (“SWPPP”).

8. Notice of Intent Form Revisions: The 2017 Draft Permit will revise the Notice of Intent form to include an additional question seeking information regarding the type of construction activities that will occur on the site.

While the above constitutes a brief overview of certain significant proposed revisions to the 2012 General Permit, the above list is nowhere exhaustive and a careful reading of the 2017 Draft Permit proposal should be reviewed on the EPA’s website. While the comment period for the 2017 Draft Permit expired on May 26, 2016, Chiesa Shahinian & Giantomasi will continue to actively review and analyze any comments received as well as any pertinent EPA responses thereto. 

Should you have any questions regarding any of the proposed revisions included in the 2017 Draft Permit, the commenting period, or the potential affect such changes could have on yourself or your business, please contact your CSG attorneys below to discuss these questions or concerns in greater detail.

Robert H. Crespi | Member of the Firm, Environmental Group | rcrespi@csglaw.com | (973) 530-2060

Michael G. Gordon | Associate | mgordon@csglaw.com | (973) 530-2161