Agency Removes ‘Joint and Several Liability’ from the Federal CGP
The U.S. Environmental Protection Agency (EPA) finalized a modification to the National Pollutant Discharge Elimination System (NPDES) 2017 Construction General Permit (CGP), which covers eligible stormwater discharges from construction activities only in areas where EPA is the permitting authority. The final modified permit will take effect on June 27, 2019.
The final modification, which is substantially similar to the proposal, removes examples of the types of parties that could be considered operators in the definition of “operator;” revises three “best management practice” (BMP) requirements to make them fully consistent with the comparable BMPs contained in the Construction and Development Effluent Limitations Guidelines (ELG) regulatory text; and clarifies individual operator responsibilities in multiple operator scenarios.
AGC submitted comments on the proposed changes – in collaboration with members of the Federal StormWater Association, click here – generally supporting EPA’s effort to clarify the intent of certain permit requirements.
Elimination of Permit Language Creating “Joint and Several” Liability
The last change noted above goes so far as to eliminate all mention of “joint and several liability” from the federal CGP. The goal of the modification is to allow multiple operators associated with the same site to either develop a common, group stormwater pollution prevention plan (SWPPP) or to have their own individual SWPPPs, but, in either case, each party (or group) must clearly specify the types of BMPs that they are employing to comply with the CGP, as well as who will perform each permit-related function, including those related to the installation and maintenance of any “shared controls.” If an operator relies on a stormwater control (e.g., a pond for treatment purposes) to meet its permit requirements, then EPA intends to hold that party responsible for the performance and compliance of the control (e.g., pond), but not the other parties that have no need for the stormwater control (e.g., pond) for their compliance. EPA also clarifies: “[I]f Operator A relies on Operator B to satisfy its permit obligations, Operator A does not have to duplicate those permit-related functions if Operator B is implementing them for both operators to be in compliance with the permit.”
Definition of “Operator”
Rather than suggesting who might be considered an operator ‘‘in most cases,’’ EPA removed the examples from the CGP so that entities determining if they should seek permit coverage under the modified 2017 CGP can focus solely on the substantive definition of operator. See Part 1.1.1 of the final modified permit. In its comments to EPA, AGC and its Federal Stormwater Association partners requested an industry stakeholder meeting to explore better approaches that could add clarity to EPA’s definition of “operator” – recognizing the longstanding confusion over this term due, in part, to prior EPA text/statements that have caused general contractors and site owners/developers to become increasingly fractured on the issue.
A note for current CGP permittees: This final modification does not affect permit coverage; therefore, no action is required of existing operators regarding your authorization to discharge under the CGP. If you were covered under the 2017 CGP, you will still be covered under the modified permit.
The final modified 2017 CGP replaces the original 2017 CGP but does not affect the eligible coverage area, the number or type of entities eligible to be covered by the permit, or the five-year permit term of the original 2017 CGP; meaning the modified 2017 CGP will still expire on Feb. 16, 2022. This modification does not affect state-issued construction stormwater permits.
The Federal Register notice, the final modified permit, and the accompanying fact sheet are now published in the public docket on Regulations.gov (ID# EPA-HQ-OW-2015-0828) and on the EPA’s construction stormwater website. Below are the key documents:
- Federal Register Notice for the final modification
- Excerpt of changes
- Final modified permit
- Fact sheet
For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org. To access your state CGP and related forms and guidance, visit the Construction Industry Compliance Assistance (CICA) Center at www.cicacenter.org.