AGC recently submitted extensive comments on the U.S. Environmental Protection Agency’s (EPA) draft 2022 National Pollutant Discharge Elimination System (NPDES) Construction General Permit and supporting materials, based on member input. AGC addressed the construction industry’s main concerns with EPA’s proposed CGP and offered recommendations on how to improve it in communications with the agency’s construction stormwater leads through e-mails, conference calls, and, most recently, via AGC’s comment letter (as well as part of a coalition effort). 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. Below is a summary of our main points.
AGC’s letter provides extensive feedback to the agency on a handful of provisions that would have a great impact on construction operations. AGC recommends that EPA address the deficiencies in the administrative procedures process (regulatory flexibility, cost analysis, small business impacts, and information collection provisions) associated with reissuing the CGP. Overall, AGC is very concerned with the increased monitoring, inspection, documentation, and reporting obligations throughout the proposed CGP. Further, AGC strongly opposes changes that would require turbidity meter monitoring in the CGP; extend the waiting period to 30 days; and penalize best management practices that require ongoing routine maintenance---resulting in more documentation and unanticipated costs.
AGC’s letter also provides point-by-point feedback on several areas within the proposed CGP:
- Concern over the new inspection, documentation, and corrective action requirements during construction dewatering operations.
- Does not support a proposed 2022 CGP provision that goes beyond the effluent limitations guidelines rule C&D ELG to require operators to check for sedimentation downstream of the point(s) of discharge.
- Does not support the expanded reporting requirements for photographs that go beyond what is required in the NPDES eReporting Rule.
- Questions the need for additional oil pollution controls and wondered whether the stormwater program was overlapping with other federal requirements, such as the oil spill program.
- Requests clarification and definitions in multiple areas throughout the proposed CGP.
- Support for the added flexibility for pollution control of some types of construction waste/ materials.
- Support for clarification in the permit that permittees may keep stormwater documentation in electronic form. Although, AGC urges EPA to provide some flexibility for projects in areas without internet access.
- Support for the added clarification for seasonally dry periods, but AGC requests more time to review the new tools that EPA introduced and the underlying database.
The agency also requested public comment on a few possible changes to the CGP.
- EPA requested comment on the provision to limit soil disturbance that has not been successfully applied under the 2017 CGP. In general, AGC does not recommend limitations on the amount of land that can be disturbed at a single time. Recognizing that EPA’s 5-acre threshold is not practicable, AGC provides some guidance for the agency to consider such as considering a percentage instead of one number for all types and sizes of projects.
- EPA requested comment on its plans to strengthen the training requirements for those members of the construction team who perform inspections and produce a course. AGC and its members have found difficulty providing comment on the need or validity of a course that is not yet been produced. If EPA does produce a training program, the agency should involve AGC and members of the regulated community in the development.
- Lastly, AGC’s letter provides potential modifications to the definition of “operator” to better ensure that all parties with control over the project are permitted.