Proposed Modification to the 2017 Construction General Permit (CGP) EXCERPT OF PROPOSED MODIFICATION TO THE 2017 CONSTRUCTION GENERAL PERMIT This document provides an excerpt of the proposed modification to the 2017 CGP for more efficient review. Please refer to the actual permit documents in the public docket on Reaulations.gov (ID# EPA-HQ-OW-2015-0828) to see the proposed modification in context of the entire permit and accompanying fact sheet. Proposed modification to the PERMIT 1.1 ELIGIBILITY CONDITIONS 1.1.1 You are an "operator" of a construction site for which discharges will be covered under this permit. For the purposes of this permit and in the context of stormwater discharges associated with construction activity, an "operator" is any party associated with a construction project that meets either of the following two criteria: a. The party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications (e.g., in most cases this is the owner of the site); or b. The party has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., thoy aro authorizod to direct workers at a sito to carry out activities required by tho permit; in most casos this is tho gonoral contractor (as dofinod in Appendix A) of tho project). Where there are multiple operators associated with the same project, all operators must obtain permit coverage.1 Subcontractors generally are not considered operators for the purposes of this permit. 1 If the operator of a "construction support activity" (see Part 1.2.1 c) is different than the operator of the main site, that operator must also obtain permit coverage. See Part 7.1 for clarification on the sharing of permit-related functions liability between and among operators on the same site and for conditions that apply to developing a SWPPP for multiple operators associated with the same site. 2.2.6 Minimize dust. On areas of exposed soil, minimize the generation of dust through the appropriate application of water or other dust suppression techniques to control the generation of pollutants that could be discharged in stormwater from the site. 2.2.11 Control stormwater discharges, including both peak flowrates and total stormwater volume, to minimize channel and streambank erosion and scour in the immediate vicinity of discharge points. Minimize erosion of stormwater conveyance channels and their embgnkments, outlets, gdjgcent streambanks, slopes, gnd downstream wgters. Use erosion controls ond velocity dissipotion devices24 within gnd glong the length of ony stormwoter conveyonce chgnnel gnd gf gny outlet to slow down runoff to minimize erosion. 24 Exomples of control meosures thgf can be used to comply with this reguirement include the use of erosion controls ond/or velocity dissipotion devices include (e.g., check dgms, sediment traps), within gnd glong the length of g stormwoter conveyonce gnd gf the outfoll to slow down runoff, riprap, gnd grouted riprap gf outlets. 1 ------- Proposed Modification to the 2017 Construction General Permit (CGP) 2.3.3 For storage, handling, and disposal of building products, materials, and wastes: a. For building materials and building products39, provide either (1) cover (e.g., plastic sheeting, temporary roofs) to minimize the exposure of these products to precipitation and to stormwater, or (2) a similarly effective means designed to minimize the discharge of pollutants from these areas. Minimization of exposure is not required in cases where the exposure to precipitation and to 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). 39 Examples of building materials and building products typically present at construction sites include, asphalt sealants, copper flashing, roofing materials, adhesives, concrete admixtures, and gravel and mulch stockpiles. 7.1 GENERAL REQUIREMENTS FOR STORMWATER POLLUTION PREVENTION PLAN (SWPPP) All operators associated with a construction site under this permit must develop a SWPPP consistent with the requirements in Part 7 prior to their submittal of the NOI.5Z 53 The SWPPP must be kept up-to-date throughout coverage under this permit. 52The SWPPP does not establish the effluent limits and other permit terms and conditions that apply to your site's discharges; these limits are established in this permit in Parts 2 and 3. ff_You have the option of developing a group SWPPP where you are one of several operators at your site. For instance, if both the owner and the general contractor of the construction sito aro operators and thus aro both required to obtain a permit, tho ownor may be the party responsible for SWPPP development, and the general contractor (or any other operator at the site) can choose to use this same SWPPP, as long as the SWPPP addresses the general contractor's (or other operator's) scope of construction work and functions to be performed under the SWPPP. Where there are multiple operators associated with the same site through a common plan of development or sale, they may develop a group SWPPP instead of multiple individual SWPPPs. Reggrdless of whether there is o group SWPPP or sovoral multiple individual SWPPPs, alt each operators would be jointly and severally liable is responsible for compliance with the permit's terms and conditions, notwithstanding how the SWPPP(s) may divide each operator's responsibilities, operators may assign to themselves vgrious permit-reloted functions under the SWPPP provided thot egch SWPPP, or g group SWPPP, documents which operator will perform ooch function undor the SWPPP. However, dividing the functions to be performed under eoch SWPPP, or o single group SWPPP, does not relieve on individugl operator from liobility for complying with the permit should another operator fail to implement any measures that are necessary for that individual operator to comply with the permit, e.g., the installation and maintenance of any shared controls. In addition, all operators must ensure, either directly or through coordination with other operators, that their activities do not causo a violation and/or rondor compromise any other operators' controls and/or any shared controls ineffective. All operators who rely on a shared control to comply with the permit are jointly and severally liable for violations of the permit resulting from the failure to properly install, operate and/or maintain the shared control. 2 ------- Proposed Modification to the 2017 Construction General Permit (CGP) Proposed modification to the APPENDICES Appendix A: Definitions "Operator" - for the purposes of this permit and in the context of stormwater discharges associated with construction activity, any party associated with a construction project that meets either of the following two criteria: 1. The party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications (o.g. in most casos this is tho ownor of tho sito); or 2. The party has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit; in most cases this is the general contractor of the project). "Shared Control" - for the purposes of this permit, a stormwater control, such as a sediment basin or pond, used by two or more operators that is installed and maintained for the purpose of minimizing and controlling pollutant discharges from a construction site with multiple operators associated with a common plan of development or sale. Any operators that are contributing stormwater from their construction activities to a shared control are considered to rely upon a shared control. Proposed modification to the FACT SHEET Section l(2Hbl regarding background on NPDES Permits for Stormwater Discharges Associated With Construction Activity EPA Construction General Permit (CGP). Since 1992, EPA has issued a series of Construction General Permits (CGPs) that cover areas where EPA is the NPDES permitting authority. At present, EPA is the permitting authority in four states (Idaho, Massachusetts, New Hampshire, effd New Mexico, and Idaho, until July 1, 2021, which is the date Idaho becomes authorized to implement the NPDES Stormwater program), the District of Columbia, Puerto Ricoand all other U.S. territories with the exception of the Virgin Islands, construction projects undertaken by Federal Operators in four states (Colorado, Delaware, Vermont, and Washington), most Indian Country lands and a couple of other specifically designated activities in specific states (e.g., oil and gas activities in Texas and Oklahoma). See Appendix B for a complete list of areas covered by EPA's CGP. The 2012 CGP became effective on February 16, 2012 (see 77 FR 12286), and expires at midnight on February 16, 2017. The 2017 CGP replaces the 2012 CGP. Section IV regarding Geographic Coverage of Permit This permit makes available coverage for stormwater discharges associated with construction activities that occur in areas not covered by an approved state NPDES program. The areas of geographic coverage of this permit are listed in Appendix B, and include the states of Idaho, Massachusetts, New Hampshire, eftd New Mexico, and Idaho, until July 1. 2021, which is the date Idaho becomes authorized to implement the NPDES Stormwater program, as well as most Indian Country lands, and construction projects undertaken by Federal Operators in selected stotes. Permit coverage is also available in the District of Columbia, Puerto Rico, and all other U.S. territories with the exception of the Virgin Islands. 3 ------- Proposed Modification to the 2017 Construction General Permit (CGP) Regarding Part 1.1.1 The definition of "operator" in Part 1.1.1 above is consistent with the 2012 CGP. The Any party associated with a construction site that meets the first part of the definition of "operator" [i.e., the party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications) in most cases will be the owner of the site. The party that meets or the second part of the definition of "operator" (the party has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit)) in most cases will be the general contractor of the project must obtain NPDES permit coverage for its stormwater discharges associated with construction Qctivitv including clegring, grgding, gnd excgygfion. EPA clgrifies thgf subcontractors gonorolly do not moot tho definition of "oporotor," ond thus gro gonorolly not required to obtoin permit coverage. Pgrt 1.1 of the permit olso clgrifies the requirements with respect to projects with multiple operators. Where there ore multiple operators ossocioted with the sgme project, oil operators must obtain permit coverage. Also, if the operator of a "construction support activity" (see Part 1.2.1 .c) is different than the operator of the main site, that operator must also obtain permit coverage. For example, if a construction support activity for the project is owned by a separate owner, and if the separate owner meets the definition of "operator", that person must obtain permit coverage for discharges from the site where the support activities are located. However, if the construction support activity is owned or operated by the site operator, then the support activity must be included in the site operator's permit coverage, including any documentation provided in the NOI and SWPPP. Part 1.1 references Part 7.1 for clarification on the sharing of liability permit-related functions between and among operators on the same site and for conditions that apply to developing a SWPPP for multiple operators associated with the same site. Regarding Part 2.2.11 Part 2.2.11 implements the C&D rule requirements to "control stormwator volume and velocity to minimize soil erosion in order to minimize pollutant discharges," to "control stormwater discharges... to minimize channel and streambank erosion and scour in the immediate vicinity of discharge points.7" to "minimize tho amount of soil oxposod during construction activity," and to "minimize the disturbance of steep slopes." Examples of control measures that can be used to comply with this requirement include the use of erosion controls and/or velocity dissipation devices (e.g., check dams, sediment traps), within and along the length of a stormwater conveyance and at the outfall to slow down runoff. Reggrding Pgrt 7.1 The new Igngugge in footnote 532 of tho permit notos thgf ono operator moy dovolop o group SWPPP provides thot where there gre severaI multiple operators ossocioted with a+ the sgme site, they mgy develop o group SWPPP insteod of multiple individuol SWPPPs. For instonce, if both the owner ond the general contractor of the construction site meet the 4 ------- Proposed Modification to the 2017 Construction General Permit (CGP) definition of an operator and are required to must-obtain a NPDES permit coverage, either party could develop a group SWPPP that applies to both parties, as long as the SWPPP gddresses both porties' permit-relgfed functions tho ownor mov bo tho portv rosponsiblo for SWPPP development, ond the genergl contractor (or ony other operator of the site) cgn choose to use this some SWPPP, gs long os the SWPPP gddresses the general contractor's (or some other operator's) scope of construction work ond obliggfions under this permit. Another exomple is where there gre multiple operators ossocioted with the sgme site through g common plon of development or sole (such gs g housing development) gf which g shgred control exists. In this scenorio, the operators mov develop g group SWPPP insteod of multiple individuol SWPPPs, gnd divide gmongst themselves vgrious permit-relgfed functions provided thot egch SWPPP, or g group SWPPP, documents which operator will perform egch permit- relgfed function, including those reloted to the instollgfion gnd mgintengnce of the shored control. Regordless of whether there is o group SWPPP or several multiple individugl SWPPPs, gII operators would bo jointly gnd severally ligblo ore leggllv responsible for complionce with the permit, notwithstonding how the SWPPP(s) mov divide egch operator's individuol responsibilities. In other words, if Operator A relies on Operator B to sotisfv its permit obliggfions. Operator A does not hove to duplicote those permit-reloted functions if Operator B is implementing them for both operators to be in complionce with the permit. However, Operator A remoins responsible for permit complionce if Operator B foils to implement ony megsures necessgrv for Operator A to comply with the permit. Where there ore multiple operators ossocioted with the sgme site through o common plon of development or sole, operators moy gssign to themselves vorious permit-reloted functions under the SWPPP provided thot egch SWPPP, or o group SWPPP, documents which operator will perform eoch function under the SWPPP. However, dividing the functions to be performed under the SWPPP does not relieve an individual operator from liability for complying with the permit should another operator fail to implomont any moasuros that aro nocossary for tho individual operator to comply with the permit, for example, the installation and maintenance of any shared controls, such as a sediment basin. In addition, where responsibilities are shared, all operators must ensure, either directly or through coordination with other operators, that their activities do not causo a violation and/or rondor compromise any other operators' controls and/or any shared controls ineffective. All operators who rely on a shared control to comply with tho permit aro jointly and severally liable for violations of tho permit resulting from the failure to properly install, operate and/or maintain the shared control. The new language in footnote 53 clarifies in the permit that all operators associated with the same site through a common plan of development or sale are responsible for the stormwater from their individual parcel until the stormwater is discharged into waters of the U.S. or an MS This responsibility includes shared controls, such as a sediment basin, within the common dovolopmont sito usod to troat stormwater from tho individual parcel. For oxamplo, if multiple operators on the same common development site develop a group SWPPP or multiple individual SWPPPs that assign permit-related functions to the various operators, an individual operator is not roliovod of liability for permit compliance should another operator fail to perform any function assigned to it under the SWPPP and thus render the individual operator unable to comply with the terms of the permit. In other words, a second operator's failure to perform responsibility for a givon function undor tho SWPPP (e.g., maintaining a sodimont 5 ------- Proposed Modification to the 2017 Construction General Permit (CGP) basin) does not render the first operator immune from enforcement for such failure, unless the second operator's failure does not impact the control of pollutants from the first operator's stormwator or non stormwator flow (e.g., tho first operator doos not sond stormwator or non stormwater flow to the sediment basin before discharge from the overall common development site). Similarly, if any individual operator develops a separate SWPPP, that operator remains responsible for compliance with all requirements of the permit that apply to discharges of stormwater and/or non-stormwater from its portion of the site through the common development site and to the point of discharge to waters of the U.S. or an MS4 from the common development site, including requirements that apply to any shared controls relied upon by the operator to control pollutants in stormwater and non-stormwater runoff from its portion of tho construction sito. Additionally, if an individual operator develops a separate SWPPP, that individual operator is still responsible for compliance with the entire permit even if it relies upon shared controls. EPA fully reserves its right to pursue liability against any operator as outlined above. When pursuing onforcomont against an operator or sovoral operators associated with tho samo sito, EPA will consider the totality of the facts, including but not limited to the actions of each operator, the capability of the operator to remedy the violations, whether there is a written division of permit rolatod functions in a group SWPPP or individual rolatod SWPPPs, and whether the operator has the ability to obtain access, with assistance from EPA if needed, to any portion of the project at issue. 6 ------- |