AGC recently submitted extensive comments on the U.S. Environmental Protection Agency’s (EPA) draft 2017 National Pollutant Discharge Elimination System (NPDES) Construction General Permit (draft CGP), based on the Association’s members’ input. AGC has devotedly represented the construction industry’s main concerns with EPA’s draft CGP and offered detailed recommendations on how to improve it by communicating closely with the agency’s construction stormwater leads through e-mails, conference calls, and face-to-face meetings and, most recently, via AGC’s 44-page comment letter. To the extent that EPA adopts more stringent permit provisions, it affects construction firms everywhere because states that run their own stormwater permit programs generally follow EPA’s lead in adopting enhanced protections.
EPA provided a mere 45 days to comment on the draft CGP, which closed on May 26. AGC requested an extension of time to analyze the approximately 250 pages of permit and fact sheet language, solicit feedback from its large and diverse membership, and prepare appropriate and useful comments. EPA unfortunately denied AGC’s request, indicating that it is on a tight timeline to publish its final 2017 CGP by late February. However, follow-up conversations indicate that EPA plans to continue to maintain a dialogue with AGC as the agency reviews and responds to the comments it received on the draft CGP. AGC will fully engage in that process and continue to coordinate activities with its industry counterparts and the U.S. Small Business Administration.
Top Issue: Mandatory Online Reporting of Construction Site Stormwater Management Plans
A paramount concern to AGC members is the possible addition of a brand-new requirement that would make construction site “operators” publicly report their construction stormwater pollution prevention plans (SWPPPs). These thousands of site-specific plans would be shared with EPA Headquarters, and the agency would, in turn, post them on EPA’s Enforcement and Compliance History Online (ECHO) website for anyone to view.
AGC took the lead in bringing together the nation’s leading homebuilding, real estate and development groups to submit a joint letter to EPA strongly opposing the online posting of construction SWPPPs. The coalition’s letter explains why published SWPPP data would be “stale” as soon as it hits the Web, which would confuse the general public, subject the construction sector to unfair scrutiny, and lead to unsubstantiated citizen complaints (or, even worse, frivolous lawsuits). All of this could force needless government inspections and thwart construction work, including critical infrastructure improvements that are necessary to environmental gains – wasting government’s limited resources and taxpayer dollars, the coalition letter states. Requiring updated SWPPPs to be constantly re-uploaded onto the Web would result in an unreasonable and irrational mandate on site operators.
Draft CGP Would Impose New Costs, Burdens that Necessitate Legal Checks & Balances
AGC filed additional comments with EPA focused on the many draft CGP terms and conditions that would go well beyond what is currently required (per the 2012 CGP), and include: expanded and transparent (online) NOI and NOT reporting; regulatory alternatives for construction sites with multiple “operators” – including mandatory group SWPPPs and new joint-and-several liability provisions; more frequent site inspections; tighter land stabilization deadlines, plus a directive to temporarily stabilize all inactive stockpiles and land clearing piles; new restrictions on runoff from building washdowns; stricter controls on demolition of buildings made with PCBs; additional protection for construction/domestic waste containers; and additional BMP provisions to implement the 2014 “ELG” (Effluent Limitations Guidelines rule) for the construction industry. AGC provided EPA with input on how these various provisions would affect general contractors, with an eye to compliance/reporting burdens and overall implementation costs. AGC pointed out the potential disproportionate impact on small businesses, which make up a large portion of the industry.
EPA’s cost impact analysis for the draft CGP indicates that the economic impact on companies that will be covered under the permit, including small businesses, would be minimal. Notably, EPA’s own economic analysis puts the cost or burden of implementing nearly all of the draft CGP provisions at zero dollars ($0). AGC challenged these findings in its letter. The proposed permit changes are indeed significant, and would likely to make it more difficult and expensive for contractors to achieve compliance with EPA’s CGP, as AGC’s letter explains.
Overall, AGC’s letter stresses that it is critically important for EPA to demonstrate that the CGP is being reissued in full compliance with all applicable laws, guidelines and Executive Orders that promote public participation, protect small business, and reduce excessive costs. Accordingly, AGC has strongly encouraged EPA to submit the final CGP to the U.S. Small Business Administration and the Office of Management and Budget for interagency review.
On the positive side, AGC was pleased that EPA did not include in its draft CGP any expensive numeric requirements tied to turbidity, or impose one-size-fits-all limits on how much dirt is allowed in stormwater that runs across a construction site. EPA formally withdrew its nationwide numeric limit on turbidity in 2014, after legal challenges brought by the U.S. Small Business Administration and industry led EPA to admit that it had derived the limit from faulty data it had obtained from technology vendors.
As previously reported by AGC, the draft CGP, once finalized, will replace EPA’s 2012 CGP, which expires Feb. 16, 2017. It will directly apply where EPA is still the permitting authority – and it serves as a model for other state-issued CGPs.
For more information regarding EPA’s draft CGP or AGC’s response, please contact Leah Pilconis at pilconisl@agc.org.