• EPA Update: 2012 Construction Stormwater General Permit Requires Filings in Massachusetts and Washington, DC, by May 15, 2012
  • March 19, 2012 | Authors: Marilyn L. Sticklor; Megan Watts
  • Law Firm: Goulston & Storrs A Professional Corporation - Boston Office
  • The EPA has issued its 2012 Construction General Permit, an updated general permit that authorizes stormwater discharges from construction activities under the program commonly known as NPDES (National Pollution Discharge Elimination System).  The 2012 Construction General Permit became effective in Massachusetts and Washington, DC, on February 16, 2012, and replaces the previous 2008 Construction General Permit, which expired on February 15, 2012.

    The 2012 Construction General Permit includes substantive and procedural features which differ from the previous 2008 Construction General Permit. Many of the substantive changes result from the EPA’s new effluent limitations guidelines and new source performance standards for construction and development point sources, also known as the “C&D rule,” which became effective in 2010.   To meet the standards established by the C&D rule, the 2012 Construction General Permit includes the following new requirements:

    • Installation of sediment controls prior to commencement of construction;

    • General maintenance obligations to address problems that do not require significant repair or replacement;

    • Establishment of a 50-foot natural buffer around surface waters or, if such a buffer zone is infeasible, installation of sediment control measures that will achieve an equivalent level of reduction in sediment loads;

    • Installation of sediment controls along perimeter areas of the site where stormwater from construction may accumulate;

    • Measures to minimize the track-out of sediment onto streets and other paved areas from vehicles exiting the construction site;

    • Installation of controls to remove sediment from discharge prior to the entry of such discharge into any storm drain inlets; and

    • Specific controls and discharge restrictions on sites that will discharge groundwater or accumulated stormwater from dewatering trenches and excavations.

    The procedural change of greatest significance is the requirement that an NOI (Notice of Intent) be filed at least fourteen (14) days before construction commences, rather than seven (7) days as under the 2008 Construction General Permit (although, in contrast with the 2008 Construction General Permit, the 2012 Construction General Permit includes provisions for obtaining immediate authorization for emergency-related construction).  Also, the EPA will now routinely accept only electronic online filings of an NOI; an NOI that is filed outside of the EPA’s electronic system will require prior approval by the applicable EPA Region.

    Developers with ongoing or new construction projects should be aware of the following:

    • If a Developer filed an NOI under the 2003 or 2008 Construction General Permit for an ongoing project, does a new NOI need to be filed?

    Yes.  Existing projects covered under a previous Construction General Permit must file a new NOI by May 15, 2012.

    • Does an ongoing project that was covered by the 2003 or 2008 Construction General Permit also need to comply with the revised substantive requirements of the 2012 Construction General Permit?

    Yes.  In connection with the new NOI that must be filed by May 15, 2012, the project’s Stormwater Pollution Prevention Plan (“SWP3”) must be updated as necessary to comply with the substantive requirements of the new 2012 Construction General Permit, discussed above.  However, if a project covered by the 2003 or 2008 Construction General Permit cannot feasibly comply with the revised substantive requirements of the 2012 Construction General Permit due to work designed or commenced prior to February 16, 2012, a waiver may be available from some of those requirements (including erosion and sediment control requirements, certain pollution prevention standards, emergency spill notification requirements, and fertilizer discharge restrictions).  Any request for a waiver must document the reasons that it is infeasible to meet the specific requirement.

    • Who is responsible for filing the NOI?

    This requirement has not changed.  Both the party with control and approval rights over the plans and specifications (typically the developer or owner) and the party with day to day operational control over the activities at the site (typically the general contractor) are each responsible for filing an NOI.  The new general permit clarifies that if these two parties are different, as is often the case, they may divide responsibility for compliance with the terms of the general permit as long as they are both bound to a unified SWP3, which specifies which party is responsible for each requirement.

    The 2012 Construction General Permit became effective on February 16, 2012, in Massachusetts and Washington, DC, and other areas of the country where the EPA is the permitting authority for the NPDES program.  In states where the state government has been authorized by the EPA to administer the NPDES program, such as New York, the state will be required to update its permitting requirements to be consistent with the 2012 Construction General Permit.