Proposed Changes to EPA’s Stormwater Permit for Construction Sites

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.

Multiple Operators

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.

EPA Issues Final Rule on Formaldehyde Emission Standards for Composite Wood Products

Jacob s. Wharton | Womble Carlyle Sandridge & Rice LLP | August 4, 2016

On Wednesday, July 27, 2016, the Environmental Protection Agency (“EPA”) released a prepublication version of its final rule on Formaldehyde Emission Standards for Composite Wood Products. The authority for the rule comes from the Toxic Substance Control Act (“TSCA”). The EPA’s rule relies heavily on the formaldehyde emissions rules set by the California Air Resources Board (“CARB”) as part of California’s Phase 2 formaldehyde emissions standards, and the EPA’s emissions standards are identical to those set by CARB.

Who will be affected by the new rule?

This rule will affect manufacturers, importers, distributors, and retailers of products containing composite wood, which is defined as hardwood plywood, medium-density fiberboard, and particleboard.

What is required under the new rule?

The EPA’s final rule sets out detailed record-keeping, labeling, and testing requirements for composite wood and products containing composite wood. Below are three major areas of concern that manufacturers, importers, distributors, and retailers of finished goods containing composite wood should be aware of as they prepare to comply with the national formaldehyde emissions standards.

Record-keeping and labeling: One year after publication of the final rule in the Federal Register, manufacturers of finished goods containing composite wood (called “fabricators” under the CARB and EPA rules), importers, distributors, and retailers will have to comply with new record keeping and labeling requirements.

With regard to record keeping, manufacturers, importers, distributors, and retailers will be required to “take reasonable precautions” to ensure the products they sell comply with the emissions standards. As part of taking “reasonable precautions,” a company must obtain documentation, such as bills of lading or invoices, from suppliers of composite wood products that includes a written statement that the products are either compliant with formaldehyde emissions standards or were produced prior to the rule taking effect. Companies must keep this documentation for three years – a year longer than required by CARB.

Importers face an additional record keeping requirement. If requested to do so by the EPA, importers must provide records identifying either (1) the composite wood panel producer and the date the composite wood products were produced or (2) the supplier of the composite wood products (if different than the producer), component parts, or finished goods and the date of purchase. Importers will have to provide this information to the EPA within 30 days of a request, and documentation must be kept for three years.

Finally, manufacturers of finished goods containing composite wood products must label each finished good or box or bundle containing finished goods with the manufacturer’s name, the date the good was produced, and a statement that the finished goods are compliant with the TSCA. If a manufacturer chooses to label the box or bundle of goods, importers, distributors, and retailers of those goods must keep the label from the box or bundle and keep track of which products are identified with the label. Importers, distributors, and retailers must make the label information available to potential customers if requested.

Importer Certification: Two years after the final rule is published in the Federal Register, importers will be required to certify that imported composite wood or products containing composite wood comply with the TSCA.

Testing requirements: Beginning seven years after the publication of the final rule in the Federal Register, manufacturers of laminated products will have to comply with third-party testing and certification requirements that apply to manufacturers of hardwood plywood panels. The EPA defines “laminated product” to include only those products with a wood or woody grass veneer, so the testing requirements will not apply to synthetic laminates such as plastic or vinyl. The EPA’s decision to require third party testing and certification by manufacturers of laminated products is a significant departure from the CARB rules.

Fortunately, there are a number of ways companies can lessen or avoid the burdens of a costly testing program. First, the EPA exempts two types of laminated products from the definition of “hardwood plywood”: (1) Laminated products made by attaching a wood or woody grass veneer with a phenol-formaldehyde resin to a compliant platform; and (2) laminated products made by attaching a wood or woody grass veneer with a resin formulated with no-added formaldehyde (“NAF”) as part of the resin cross-linking structure to a compliant platform. Accordingly, a manufacturer using NAF or phenol-formaldehyde resins will not be subject to the testing and certification requirements. Instead, these manufacturers must keep records showing their products are made with the appropriate resins and a compliant platform. Notably, the EPA has left the door open for interested parties to petition for additional exemptions.

Second, manufacturers of laminated products can apply for an exemption from the testing and certification requirements based on use of ultra low-emitting formaldehyde (“ULEF”) resins. To qualify for a ULEF exemption from the testing and certification requirements, a company must undergo a limited (6 months) testing program to show its product complies with emissions limits. Additional limited testing is required to renew the exemption every two years.

Continued Uncertainty in Federal Regulation of Storm Water from Construction Sites

Wendy Manley – September 5, 2012

In the latest turn of the ongoing saga of storm water regulation, the U.S. EPA has withdrawn its proposed rule that would have revised the enforceable numeric effluent limits for runoff from construction sites.  The numeric limits were established for turbidity in effluent limitation guidelines (“ELG”) adopted by EPA in December, 2009.  Once established for specific industrial sectors, ELGs must be incorporated in NPDES permits issued to point-source dischargers.

This regulatory matter has been an arduous journey for EPA, one that may not reach a conclusion any time soon.  Following a lawsuit filed in 1989 by the Natural Resources Defense Counsel alleging that EPA had failed to meet its statutory obligation relative to discharges from construction and development, EPA identified that sector as an industrial point source category for further rulemaking under Clean Water Act section 304(m).  EPA then solicited comments in 2002 on a range of options to address construction storm runoff.  In 2004, EPA decided not to promulgate ELGs, drawing further litigation from NRDC, which did not end favorably for EPA.  A California District Court held in 2006 that once EPA lists an industrial point source category under section 304(m), it has a mandatory duty to promulgate ELGs and New Source Performance Standards (NSPS).  Meeting the court’s deadlines, EPA proposed ELGs and NSPS in November, 2008, and adopted them in December, 2009.  Construction storm water permits adopted after February 1, 2009 were required to incorporate the numeric effluent limits contained in the ELG.

In November, 2010, EPA stayed the numeric turbidity limit in order to review its calculations used to set the limit. As a result, it had to extend the expiration date of the 2008 permit from June 20, 2011 to February 15, 2012 in order to allow time to incorporate the new numeric limitations in the new construction permit.  Most recently, on August 12, 2011, EPA withdrew its proposal in order to gather more data, a move that will extend the period of uncertainty for those subject to the federal construction storm water permit.

EPA’s 2009 ELG set a turbidity limit of 280 nephelometric turbidity units (NTU) for construction runoff.  As it turns out, California’s new Construction General Permit (“CGP”), adopted shortly before EPA adopted its ELG, set a numeric turbidity limit of 250 NTU.  The CGP timing conveniently relieved the State Water Resources Control Board of using EPA’s numeric limit until the following permit cycle.  While it may have been EPA’s proposed 13 NTU limit that propelled the state to adopt the CGP before EPA adopted the ELG, the good news is that California’s CGP is not subject to EPA’s continually shifting rulemaking.

via Continued uncertainty in federal regulation of storm water from construction sites – Lexology.

EPA’s Lead: Renovation, Repair and Painting Rule Pushed to 2015

Advise & Consult, Inc. – October 2, 2012

Commercial buildings now have until 2015 to comply with the Environmental Protection Agency’s Lead: Renovation, Repair and Painting Rule.

This rule has been surrounded by controversy, basically since its inception. Originally, it was to include all contractors doing any renovation on pre-1978 residential and commercial buildings with the hopes of cleaning up lead based paint, dust and exposure during that renovation process. While the intentions were to keep people safe as the increasing knowledge of damage caused by lead paint dust – especially to children.

The controversy started when it created a competitive dis-advantage for those trying to comply with the new regulations and the added cost of the expensive procedures when compared to those contractors that couldn’t, wouldn’t or for some other reason didn’t comply with the new regulations.

The controversy continues with a voluntary legal settlement with environmental groups including the Sierra Club. In this settlement the EPA agrees to propose a significant and costly expansion of the existing residential lead paint rule. It also agrees to eliminate the “opt-out provision” allowing homeowners without children who live in homes built prior to 1978 to choose exempt remodelers from following these specific practices and the required recordkeeping.

The agreement also would require all remodelers of pre-1978 housing projects to perform expensive third-party lead dust clearance testing before completing the renovation. The National Association of Home Builders has successfully convinced the EPA to withdraw this after petitioning the White House.

The final aspect of the agreement is to accelerate the development of the commercial buildings rule and to have that completed by September of 2012. The NAHB also had a say on this as they charged that the agency has failed to perform the prerequisite studies on the potential of harming adults with the dust during the renovation process. Under federal law, the EPA is required to perform these studies and has yet to complete this study.

Surely this is not the end of the story and the controversy and enforcement of this will continue to kick up the dust – pun intended.