Robinson & Cole | January 2, 2019
The Environmental Protection Agency (EPA) recently announced its intention to modify the 2017 National Pollutant Discharge Elimination System (NPDES) General Permit for Construction Stormwater Discharges (2017 CGP). EPA implements the 2017 CGP in states and territories that have not yet received authorization to implement the NPDES Stormwater program. Primarily, this includes New Hampshire, Massachusetts, Puerto Rico, and the District of Columbia.
EPA’s proposed modifications to the 2017 CGP are intended to be narrow and not affect the underlying, substantive requirements of the permit. The proposed modifications include: changes to the definition of “operator;” division of permit responsibilities when there are multiple operators at a single construction site; and alignment with EPA’s Effluent Limitations Guidelines and New Source Performance Standards for Construction and Development (C&D Rule). Elements of the 2017 CGP that would not change include the eligible coverage area (construction sites that take up at least an acre, or less than an acre if they are part of a larger community plan of development), the number or type of entities eligible to be covered, and the CGP’s expiration date (February 16, 2022).
Definition of Operator
The 2017 CGP includes parenthetical examples of the parties that EPA may consider an “operator” for purposes of complying with the terms of the permit. The parenthetical examples, while included in an attempt to provide clarity, instead have caused confusion. EPA proposes to remove the parenthetical examples, thereby allowing parties to rely solely on the substantive definition of operation for determining whether they should seek permit coverage.
EPA’s proposal would remove references to joint and several liability from the 2017 CGP. EPA views these references as an inaccurate explanation of what the permit compliance duties are for multiple operators that share implementation responsibilities under the permit. In addition, EPA’s proposal would clarify that operators that divide responsibilities do not have to duplicate permit-related functions to be in full compliance with the permit if one operator is appropriately implementing the requirement for the rest of the operators.
EPA provided the following 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. 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.
C&D Rule Alignment
To better align the 2017 CGP with the C&D Rule, the EPA proposes three changes:
- Add language in an effort to convey more precisely 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).
The 2017 CGP will remain in effect as it is currently written while EPA receives public comment on its proposed modifications. Comments must be submitted to EPA no later than January 28, 2019.