CONSTRUCTION GENERAL PERMIT: HOW TO OBTAIN PERMIT COVERAGE AND APPLICATION DEADLINES Sergio Bosques, MS Env. Eng. Caribbean Environmental Protection Division USEPA Region 2 U.S. Environmental Protection Agency 1 BACKGROUND – NPDES Construction Stormwater Permitting – Construction & Development Rule Effluent Guidelines – EPA’s Construction General Permit 2 U.S. Environmental Protection Agency Statutes and Regulatory Provisions • Section 301(a) of the CWA – "Except as in compliance with this Section and Sections ... 402, and 404 of the Act, the discharge of any pollutant by any person shall be unlawful." • Section 402 (p) of the CWA – Phase I and Phase II establish NPDES permit framework certain storm water discharges 3 Phase I - Finalized in 1990 Phase 2 - Finalized in 1999 • • Regulates small MS4s located in an “urbanized areas” (UA) as defined by the Bureau of Census • Additional MS4s outside of UAs designated by the NPDES permitting authority Active construction activities disturbing between one and five acres • • Regulates medium and large MS4s (defined as areas that serve 100,000 or more people) 10 categories of industrial operations Active construction sites of 5 acres or more Requires: • MS4s to develop and implement a stormwater management plan (SWMP) to • Find and eliminated illicit discharges • Control discharges from its system by addressing runoff from active construction sites, new development and redevelopment, industrial program • Construction and Industrial stormwater dischargers to develop and implement Stormwater Pollution Prevention Plans (SWPPP) • • MS4 SWMP must include 6 minimum control measures; – Public Education & Outreach – Public Participation/Involvement – Illicit Discharge Detection & Elimination – Construction Site Runoff Control – Post-Construction Runoff Control – Pollution Prevention/Good Housekeeping NPDES Construction Stormwater Permitting • National Pollutant Discharge Elimination System (NPDES) permits are required for stormwater discharges from earth disturbances of 1 or more acres of land • Most construction projects are covered under “construction general permits” or “CGPs” and coverage is obtained through submittal of a “Notice of Intent” or “NOI” 5 NPDES Construction Stormwater Permitting • CGPs typically include requirements to: – Implement and maintain BMPs – Prepare a stormwater pollution prevention plan (SWPPP) – Conduct self-inspections and perform maintenance – Document compliance activities – Train personnel 6 Construction & Development Effluent Limit Guidelines • Effluent Limitations Guidelines and New Source Performance Standards for the construction and development industry (“C&D rule”) became effective on February 1, 2010 • After this date, the C&D rule requirements must be incorporated into NPDES construction stormwater permits 7 Construction & Development Effluent Limit Guidelines • The C&D rule includes a suite of non-numeric requirements that apply to all permitted construction sites • When it was first issued, the C&D rule also included a numeric limit for turbidity applicable to sites disturbing 10 or more acres: – January 4, 2011: EPA stayed its numeric turbidity limit (280 NTU) – January 3, 2012: EPA requested additional data on the effectiveness of different controls in reducing turbidity from construction site discharges – April 1, 2013: EPA proposes revisions to the C&D rule, including withdrawing the numeric turbidity effluent limit and monitoring requirements 8 The term “POINT SOURCE” • Any discernible, confined, and discrete conveyance, including but not limited to: – Any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. – This term does not include return flows from irrigated agriculture or agricultural stormwater runoff. U.S. Environmental Protection Agency 9 The term “DISCHARGE OF POLLUTANT” • Any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any “point source,” or any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation. • Includes additions of pollutants into waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. U.S. Environmental Protection Agency 10 The term “WATERS OF THE U.S.” • • • • • All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; All interstate waters, including interstate wetlands; All other waters such as intrastate lakes, rivers, streams (including intermittent streams), Mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or Natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: – Which are or could be used by interstate or foreign travelers for recreational or other purposes; – From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or – Which are used or could be used or could be used for industrial purposes by industries in interstate commerce; 11 The term “WATERS OF THE U.S.” • • • • • All impoundments of waters otherwise defined as waters of the United States under this definition; Tributaries of waters ; The territorial sea; Wetlands adjacent to waters (other than waters that are themselves wetlands); Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This Exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. 12 NPDES Statutory Framework • All “point” sources • “Discharging pollutants” • Into “waters of the U.S.” Must obtain an NPDES permit from EPA or an authorized State 13 EPA’s Construction General Permit • The 2012 CGP replaces the 2003 and 2008 CGPs – Provides coverage for all new and existing construction projects – Permit expires in 5 years (February 16, 2017) – Includes a number of significant modifications to the 2003 and 2008 CGPs, including: • C&D rule requirements • Protections for impaired and sensitive waters • Enhancements to improve the permit’s readability, clarity, and enforceability 14 HOW TO OBTAIN PERMIT COVERAGE 15 How to Obtain Permit Coverage Step 1: Determine Eligibility To be covered by the CGP, you must meet the following eligibility requirements: – You are an “operator” of a construction project – Your project will disturb 1 or more acres of land – Your project is in an area where EPA is the permitting authority – Your project has satisfied all other eligibility criteria • Endangered & threatened species requirements • Historic properties requirements • Cationic treatment chemical requirements 16 WHO APPLIES – THE “OPERATOR” For the purposes of the CGP, an “operator” is 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; 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). U.S. Environmental Protection Agency 17 Disturbed Area • The project will disturb 1 or more acres of land; or • Will disturb less than 1 acre of land but is part of a common plan of development or sale that will ultimately disturb 1 or more acres of land; or or • The project’s discharges have been designated by EPA as needing a permit U.S. Environmental Protection Agency 18 Eligibility for Emergency-Related Construction Activities • If you are conducting earth-disturbing activities in response to a public emergency (e.g. ,natural disaster, widespread disruption in essential public services), and the related work requires immediate authorization to avoid imminent endangerment to human health, public safety, or the environment, or to reestablish essential public services, you are authorized to discharge on the condition that a complete and accurate e-NOI is submitted within 30 calendar days after commencing earth-disturbing activities. U.S. Environmental Protection Agency 19 Water Quality Standards Eligibility for New Sources • If the project is a “new source” (project commenced construction activities after February 1, 2010), you are not eligible for coverage under the CGP for discharges that EPA, prior to authorization under the CGP, determines will cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard. U.S. Environmental Protection Agency 20 Discharges to Waters with High Water Quality • If you are a “new source”, you are eligible to discharge to a Tier 2, Tier 2.5, or Tier 3 water only if your discharge will not lower the water quality of the applicable water. U.S. Environmental Protection Agency 21 Use of Cationic Treatment Chemicals • If you plan to use cationic treatment chemicals (polymers, flocculants, or other chemicals that contain an overall positive charge), you are ineligible for coverage under the CGP, unless you notify EPA Region 2 in advance and the EPA Region 2 authorizes coverage under the CGP after you have included appropriate controls and implementation procedures designed to ensure that your use of cationic treatment chemicals will not lead to a violation of water quality standards. U.S. Environmental Protection Agency 22 Types of Discharges Authorized • Stormwater discharges, including stormwater runoff, and surface runoff and drainage, associated with construction activity. • Stormwater discharges designated by EPA as needing a permit under. U.S. Environmental Protection Agency 23 Types of Discharges Authorized (cont.) • Stormwater discharges from construction support activities – – – – – concrete or asphalt batch plants equipment staging yards material storage areas excavated material disposal areas borrow areas U.S. Environmental Protection Agency 24 Non-Stormwater Discharges • • • • Discharges from emergency fire-fighting activities; Fire hydrant flushings; Landscape irrigation; Water used to wash vehicles and equipment, provided that there is no discharge of soaps, solvents, or detergents used for such purposes; and receives goes to stormwater treatment control; • Water used to control dust; 25 Non-Stormwater Discharges (contd.) • Potable water including uncontaminated water line flushings; • Routine external building washdown that does not use detergents and receives goes to stormwater treatment control; 26 Non-Stormwater Discharges (contd.) • Pavement wash waters provided spills or leaks of toxic or hazardous materials have not occurred (unless all spill material has been removed) and where detergents are not used. • You are prohibited from directing pavement wash waters directly into: – any surface water, – storm drain inlet, or – stormwater conveyance, unless the conveyance is connected to a sediment basin, sediment trap, or similarly effective control; 27 Non-Stormwater Discharges (cont.) • Uncontaminated air conditioning or compressor condensate; • Uncontaminated, non-turbid discharges of ground water or spring water; • Foundation or footing drains where flows are not contaminated with process; materials such as solvents or contaminated ground water; and • Construction dewatering water that has been treated by an appropriate control. U.S. Environmental Protection Agency 28 How to Obtain Permit Coverage Step 2: Develop the Stormwater Pollution Prevention Plan (SWPPP) • SWPPPs must be developed prior to submitting eNOI for CGP coverage 29 How to Obtain Permit Coverage Step 3: Submit Your NOI Type of Project Deadline to Submit Date of Permit Coverage New Project (construction commencing on or after Feb 16, 2012) At least 14 days prior to construction commencement 14 days after EPA has acknowledged receipt of your NOI, unless your authorization has been delayed or denied Existing Project (construction commencing before February 16, 2012) No later than May 15, 2012 14 days after EPA has acknowledged receipt of your NOI, unless your authorization has been delayed or denied Emergency-Related Project No later than 30 days after construction commencement Provisionally covered under the permit immediately, and fully covered 14 calendar days after EPA has acknowledged receipt of your NOI, unless your authorization has been delayed or denied “COMMENCEMENT OF CONSTRUCTION” The initial disturbance of soils (or breaking ground’) associated with clearing, grading, or excavating activities or other construction-related activities (e.g., stockpiling of fill material). U.S. Environmental Protection Agency 31 “Commencement of Pollutant-Generating Activities” • Clearing, grubbing, grading, and excavation has begun; • Raw materials related to your construction activity, such as building materials or products, landscape materials, fertilizers, pesticides, herbicides, detergents, fuels, oils, or other chemicals have been placed at your site; • Use of authorized non-stormwater for washout activities, or dewatering activities, have begun; or • Any other activity has begun that causes the generation of or the potential generation of pollutants. U.S. Environmental Protection Agency 32 POSTING NOTICE OF PERMIT COVERAGE • The permittee must post a sign or other notice conspicuously at a safe, publicly accessible location in close proximity to the project site. • At a minimum, the notice must include the NPDES Permit tracking number and a contact name and phone number for obtaining additional project information. • The notice must be located so that it is visible from the public road that is nearest to the active part of the construction site, and it must use a font large enough to be readily viewed from a public right-of-way. U.S. Environmental Protection Agency 33