Storm Water Hot Topics - Construction

Effectiveness of Controls: The University of New Hampshire issued a report in 2005 evaluating the removal effectiveness of storm water construction controls on TSS, NO3-N, Zn, and TPH-D.

Publications Summer 2004:

Operator - EPA is finding many people that are not correctly interpreting their need for an NPDES storm water construction general permit based on the permit's definition of "operator", resulting in formal enforcement by EPA and/or the State authority.

The NPDES Class I Expedited Settlement Offer (ESO) penalties for violations at construction sites are now being public noticed on the web at: www.epa.gov/region6/6en/w/public-notice.htm. The ESO policy and guidance documents can be found at www.epa.gov/region6/6en/w/eso.htm.

The EPA Region 6 Construction General Permit was reissued July 1, 2003 (68 FR 39087).

EPA is the NPDES permitting primarily in New Mexico, Indian Country lands, and the oil & gas industry for Texas and Oklahoma. Texas, Oklahoma, Louisiana and Arkansas have all assumed the NPDES program (see below) and are the primary agency in those State's for obtaining NPDES permits. Texas recently assumed the NPDES Storm Water Construction program and issued their first NPDES Construction General Permit on March 5, 2003. Please visit the Texas Commission on Environmental Quality's Storm Water Construction web page for more information. If TCEQ is your NPDES permitting authority, you have 90 days (until June 3, 2003), to apply for and be in compliance with the new TCEQ Construction general permit. If you are covered by the EPA Region 6 Construction general permit, it is recommended that you submit a Notice of Termination to EPA's NOI Processing Center once you are notified of coverage unde the TCEQ general permit.

NPDES construction compliance for Oil and Gas Construction Activities that disturb 1-5 acres: http://cfpub.epa.gov/npdes/stormwater/oilgas.cfm

Storm Water Phase 2 Effluent Guidelines and New Source Performance Standards for the Construction and Development Category; Proposed Rule was published on June 24, 2002 [67 Fed. Reg. No. 121, p. 42643-42686]. This same regulation is available in Adobe Acrobat PDF file format (better for printing).

EPA, the American Society of Civil Engineers, the Urban Water Resources Research Council, several universities and consultants have developed the National Storm Water Database web page which can be found at www.bmpdatabase.org. Their report on this database project can be found at www.epa.gov/earth1r6/6en/sw/asce_bmp_database_2-10-03.pdf

Electronic Green Journal concludes environmental regulations have had negligible impact on the increased cost of housing. <http://egj.lib.uidaho.edu/egj12/laquatra1.html>.

Storm Water Phase II Effluent Guidelines and New Source Performance Standards for the Construction and Development Category; Proposed Rule was published on June 24, 2002 [67 Fed. Reg. No. 121, p. 42643-42686]. More information on construction effluent guidelines can be found at <http://www.epa.gov/OST/guide/construction/>

The EPA Region 6 NPDES Storm Water Construction general permit was issued July 1, 2003 [68 Fed. Reg. 39087] and expires July 1, 2008.  All facilities where EPA Region 6 is the permitting authority need to obtain permit coverage under this permit. See the Forms and Documents web page to obtain copies of the permit and NOI application forms. 

Unlike Region 6, EPA Regions 1, 2, 3, 7, 8, 9, and 10 signed the now expired 1998 National Construction storm water general permit and it was published in the Federal Register February 17th (Adobe Acrobat format in 4 parts: Part 1, Part 2, Part 3, Part 4). Region 6 developed a virtually identical Region 6 specific construction general permit that was issued July 6, 1998 [63 Fed. Reg. 36489-36519], and has since expired. For additional information on the national NPDES storm water construction general permit, you may visit the Office of Water's Construction General Permit web page at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm. 

Permits are written, proposed, and finalized in the Water Quality Management Division. For more information on the storm water permitting contacts, see the Water Quality Management Division's storm water web page or contact the Industrial Permits Branch at (214)665-7180. 

The U.S. Department of Justice issued a press release jointly with EPA on June 7, 2001, announcing a settlement with Wal-Mart for violations of the Clean Water Act's NPDES storm water construction general permitting program at 17 facilities in Texas, New Mexico, Oklahoma and Massachusetts. The settlement includes a penalty of $1,000,000 and approximately $4,500,000 in implementation of environmental management plans (this includes some cost requirements for compliance that already exist under the NPDES program as well as some additional requirements such as discharge monitoring that was not required under NPDES general permits). This is the first multi-state enforcement action under the NPDES storm water program.

The primary pollutant of concern in construction storm water discharges are suspended solids from erosion of sediment. Suspended solids are usually not toxic, but are a carrier of other pollutants that may be toxic. Additionally, high suspended solids effect the dissolved oxygen in water, reduce light penetration and the heavier solids will settle out and change the biological characteristics of a receiving water body. Sedimentation/siltation are the number one reason for degrading of wetland integrity and is the third leading pollutant/stressor impairing lakes (behind nutrients and metals) according to the CWA 305(b) 1998 Report to Congress (Figures 4-4 and 6-12, pages 87 and 149 respectively). It is the goal of the CWA and EPA that all waters of the United States should be fishable and swimmable and EPA is working with the construction industry to achieve these goals.

The U.S. DOJ Press Release on this settlement.

EPA Press Release on this settlement.

The public noticed required by law for CWA penalties was published in the Federal Register on June 22, 2001 [66 Fed. Reg. No. 121, p 33557].

Residential Construction Reminder Letter

EPA Region 6 has found that many developers and builders in the residential construction industry are unfamiliar with the NPDES storm water requirements.  A "reminder" letter was sent on April 15, 1999, to 4418 companies in Texas that are identified as being in the residential construction business.  Click here for a copy of the letter and click here for a copy of the recipients of this letter.  Both files are in Adobe Acrobat PDF file format. 

General Construction Hot Topics

Common Plan of Development or Sale: www.epa.gov/earth1r6/6en/w/sw/hottopcommon.htm.

Posting Signs:  The 2003 Region 6 Construction Permit has a requirements that permittees post a notice near the entrance of the facility.  Part 3.12.B. of the permit says that the following information much be posted at each facility:  a) The NPDES permit number for the project or a copy of the NOI if a permit number has not yet been assigned, b) The name and telephone number of a local contact person, c) A brief description of the project; and d) The location of the SWPPP if the site is inactive or does not have an on-site location to store the plan.  The Region has prepared a sample form for use to meet compliance with this permit condition. 

Certifications: Appendix G, Subsection 11. of the permit requires "Any person signing documents required under the terms of this permit must include the following certification:

EPA inspections have found many plans and reports that were not signed by an authorized person* or the signature did not accompany the above certification statement. Examples of reports that need to be signed and certified include the bi-weekly inspection reports (and after 0.5" or greater rainfall), and Endangered Species Act report (Appendix C of the Permit). Certifications of these reports is in addition to the requirement for an authorized person to certify the whole storm water pollution prevention plan.

*Appendix G Subsection 11.A. of the permit describes an authorized person, which is for most purposes an officer of the company for a corporation, or a partner if a partnership. An authorized person may delegate the signatory authority to a specific employee, a specific job title, or even to a third party (e.g. developer delegating a consultant or general contractor's project manager to certify inspection reports). A delegation of authority letter must be submitted to EPA for one of these people to certify reports. If there are multiple permittees using the same report or plan, then each of the permittees must have an authorized person sign and certify the report or plan. Additionally, if a plan or report was certified for a previous NPDES permit, then it must be updated and recertified for the new permit to assure that the authorized person is certifying the new NPDES permit requirements are met.

While reports and plans may have signatory authortiy delegated from an authorized person to a specific person or job title, the Notice of Intent must be signed by only an authorized person*. You can only delegate signatory authority after obtaining an NPDES permit. This means you must first obtain a permit before delegating signatory authority. Additionally, failure to have an authorized person sign and certify the Notice of Intent application will render the permit coverage invalid; and, under some circumstances such as knowingly signing when not authorized, may constitute fraud and a criminal violation of Section 309 of the Act. The permit will be invalid irregardless of the fact that the permitting authority issued you a permit number because it was issued under applicant's false signatory representation.

If submitting a Notice of Intent (NOI) under the storm water construction general permit, make sure that the "SIC or Designated Activity code" says "CO" as per the instructions on the back of the NOI application form. Some of the older versions of the NOI incorrectly state that the latitude and longitude are optional fields. They are not optional. Make make sure to include the correct Latitude and Longitude so that your NOI can be processed. If omitted, the NOI will be returned to you as incomplete. For help in determining the correct latitude and longitude, you may contact the Mapquest or Mapblast web pages (non-epa mapping web sites). 

The previous general permit NOI application form for three general permits (Baseline Industrial, Multi-Sector, and Construction) expired August 31, 1998. EPA has created a new construction specific NOI to replace the previous NOI. Please use the new Construction specific NOI to reduce any confusion and assure a complete application is made and processed.  The new NOI may be found in the Forms and Documents web page. 

Operator:

EPA Region 6 inspections have revealed that at many sites, not all parties meeting the definition of "operator" have applied for storm water permit coverage. The "operator" is the party or parties that either individually or taken together meet the following two criteria: 1) They have operational control over the site specifications (including the ability to make modifications in specifications); and 2) they have the day-to-day operational control of those activities at the site necessary to ensure compliance with plan requirements and permit conditions (e.g., are authorized to carry out activities identified in the plan). 

At a typical commercial construction site, the owner will meet the first criteria of an "operator" and the general contractor(s) will meet the second criteria. If so, both the owner and general contractor must apply for storm water permit coverage by submitting Notices of Intent (NOIs). At a residential development, a developer may construct roads and installs utilities, while builders do construction on individual lots. The developer can meet both the first and second criteria, and should apply for permit coverage. If a general contractor at the site also meets the definition of "operator," then that general contractor will need an NOI. 

Individual builders can begin construction within the development at any time. Who holds title to property at any particular time will not determine permitting obligations. Builders usually meet both criteria of "operator" for the lots they build structures on and must also apply for storm water permit coverage. A builder who controls his own plans and specifications, disturbs less than 5 acres but is part of a larger common plan of development of sale (e.g., a subdivision), must still apply for permit coverage. 

A builder who has several lots in a subdivision only needs to submit one NOI application for all of those lots. Permit coverage obtained for all of the lots collectively cannot be terminated until all of the lots have been completed and meet the criteria of being "finally stabilized." 

Similarly, storm water pollution prevention plans (SWPPPs) can cover the entire development, several lots, or individual lots, as long as each permittee has plan coverage and control measures for his work area, and the permit requirements for the plan are met. While there may be many parties that are required to apply for permit coverage, only one SWPPP is required for a given facility unless each permittee wishes to separately develop their own SWPPP. However, it is still the responsibility of each party to ensure compliance with the permit, and failure to properly implement the SWPPP may result in EPA action against all of the parties covered by a plan. EPA generally tries to pursue the party or parties causing the violation(s), but if it is unclear, all of the "operators" at a facility may be named in an enforcement action. A clear delineation of responsibilities in the SWPPP can help reduce confusion and protect parties in compliance. 

If a project is substantially complete (i.e., finally stabilized) or another party has been substituted as the "operator" (e.g., new contractor is hired), a Notice of Termination (NOT) should be submitted so EPA can purge the permit number from its compliance tracking system. A permit can be terminated if a permittee no longer meets the definition of "operator" (i.e., a developer has transferred responsibility to a permitted builder or contractor, and any property not in the control of a permitted party is finally stabilized). "Final Stabilization" means that all soil disturbing activities at the site have been completed, and that a uniform perennial vegetative cover with a density of 70% of the native background vegetative cover for the area has been established on all unpaved areas, and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed. In arid areas of the country, background native vegetation will cover less than 100% of the ground (e.g., 50%), so establishing at least 70% of this natural cover (e.g., 70% of 50%, or 35% density cover) meets the vegetative cover criteria for final stabilization. 

Early in 2004, EPA was challenged by a Texas municipality that claimed they were not an "operator" and that only the general contractor was an operator and needed permit coverage (e.g., claim that this was a turn-key project). They made this assertion to both TCEQ and EPA, and initially, both agencies responded saying that they did not need permit coverage if they were not an "operator". Many people have made such conclusions incorrectly due to their misunderstanding of the definition of "operator" or their not understanding that while it is legal to delegate duties, one cannot delegate responsibilities such as permitting, under the Clean Water Act. The City of Irving claimed they were not an operator because they did not control the site specifications and did not control the day-to-day operational activities in accordance with the definition of "operator" in the current TCEQ NPDES storm water construction general permit. The EPA accepted this claim, but initiated an investigation into this claim and the EPA Region Office of Regional Counsel reviewed the pertinenant information and contracts. After reviewing this information, it became apparent that the municipalities claim was without merit and wholly incorrect. Here is the Regional Counsel response to the City of Irving (Adobe Acrobat PDF file format). We encourage municipalities and developers to review the definition of "operator", as well as guidance documents such as this letter to the City of Irving, to guide them in make correct interpretations on whether they need permit coverage. EPA has found few circumstances where the developer or municipality did not meet the definition of "operator" for their projects. Additionally, it is common that general contractors control the daily activities and are an "operator" at most typical commercial construction sites. Each party needs to evaluate their need for a permit separately and to obtain the necessary permit.

ENDANGERED SPECIES: The Construction Permit has additional Endangered Species Requirements that require you to review which species may be in proximity to your facility. EPA's Office of Wastewater maintains an Endangered Species web page at http://cfpub.epa.gov/npdes/stormwater/endangerspecies.cfm.  Facilities operating in Austin, Texas should make note of the fact that the Barton Creek Springs salamander (Eurycea sosorum) was recently determined to be an endangered species by US Fish and Wildlife Service (62 Fed. Reg. pg 23377-23392 (April 30, 1997)). The Construction General Permit's Limitations on permit Coverage states the following discharges are not authorized: "storm water discharges from construction sites if the discharges adversely affect a listed or proposed to be listed endangered or threatened species or its critical habitat."  For further information on the Barton Creek Salamander, please contact Matthew Lechner of the US Fish and Wildlife Service at (512)490-0057. 

COMMON PROBLEMS FOUND DURING EPA INSPECTIONS: 
*Not having an NPDES storm water permit, Storm Water Pollution Prevention Plan (SWPPP) and proper Best Management Practices such as erosion controls is the most serious problem. 
*Facilities that only have an erosion control plan and not a SWPPP. 
*Facilities that are not having qualified personnel properly performing AND documenting their bi-weekly inspections (monthly in areas receiving less than 20 inches of rainfall annually) and inspections after 0.5" or greater rainfall. 
*Facilities not posting their construction signs accessible by the public at the entrance to the facility.  All "operators" need separate signs to post (e.g. developer and general contractor).  Home builders may post signs in front of their lots or in the front window of a structure if built.
*Common problems with the SWPPP include 1) not having upland controls; and 2) not have detention ponds for common drainage areas of 10 or more acres. Both of these requirements can be replaced by equivalent or superior controls if they are so designated in the SWPPP. Make sure that if you cannot have either of these practices implemented that your SWPPP denotes that you are not implementing them and specifically what the alternative controls are that will be at least as effective. 
*The primary pollutant of concern at a construction site is erosion. However, other pollutants are frequently omitted from SWPPPs. Please make sure you address potential pollutant sources such as diesel tanks, solvents, paints, concrete hardners, hydraulic oil, etc. 
*Off-site vehicle tracking is a problem at many sites. Make sure you have a stabilized construction entrance and/or alternative methods of cleaning mud from vehicles exiting the disturbed areas. 

Ponds as Best Management Practices - The following are some common definitions of type of ponds used to control pollutants in storm water. More information can be found in EPA's development of Effluent Guidelines for Construction and Development Industry at www.epa.gov/OST/stormwater. Specifically, Chapter 5, starting with page 12, describes uses of ponds as best management practices.

Check out the CWA Enforcement Hot Links web page that includes a section of links to storm water related web pages.