EPA Proposes New General Permit to Regulate Stormwater Discharges

By Mike Bosse & Kat Joyce

IN BRIEF

• The U.S. EPA has issued its new proposed Construction General Permit
• The new permit and additional regulations may significantly increase responsibilities for contractors in charge of stormwater management
• While ME’s Construction General Permit is currently administratively extended, upon its reissuance, we should expect that any new EPA requirements may be incorporated into ME’s CGP
• The ability to provide comment on the proposed permit and regulations is open until May 26, 2016

The U.S. Environmental Protection Agency has proposed its new Construction General Permit, which applies to stormwater discharge on construction projects on sites of at least one acre. The current general permit expires on February 16, 2017. The ME Construction General Permit is based on the federal National Pollutant Discharge Elimination System Stormwater program that applies nationwide. The federal Environmental Protection Agency has delegated its authority to administer this program to the ME Department of Environmental Protection. The program provides that certain discharges are not allowed unless they are licensed, and the DEP is licensing certain discharges of stormwater from construction activities when the requirements of the MCGP are met. The MCGP therefore sets standards for managing stormwater that may pick up pollutants, including soil, and discharge them to waters of the state, such as lakes, streams, and wetlands. The requirement for a MCGP is triggered by the amount of disturbed area created during construction, and whether the site will directly discharge to surface waters of the state.

The changes contemplated by EPA may result in more stringent requirements for compliance with EPA stormwater management obligations. While ME is a state with delegated authority to administer its own CGP program, and EPA’s new CGP will be applicable only in states that do not have delegated authority for their own programs, it is highly likely that EPA’s new requirements be integrated into ME’s CGP when it is formally renewed. ME’s CGP technically expired in 2008, and has been administratively continued since then, so a renewal permit is likely to be imminent; substantial compliance with EPA’s new rule will be likely upon renewal.

Coverage Under the MCGP

As it stands, a landowner, contractor, or developer may need coverage under the MCGP if his or her construction project will directly discharge to a surface waterbody, and the construction will result in any of the following:

• One acre or more of disturbed area
• A common plan of development located in an area subject to LURC jurisdiction and requiring a LURC permit
• A common plan of development located outside LURC jurisdiction and requiring a Stormwater Law or Site Location of Development Law permit

New Requirements

Some of the new requirements include the following:

• Permittees must cover or otherwise temporarily stabilize inactive soil stockpiles and land clearing debris if not used for more than 14 days
• Permittees must keep waste lid containers closed
• If a structure has over 10,000 square feet of floor space built before 1980 that is subject to demolition, the permitee must implement a system to prevent or minimize the exposure to PCB-containing building materials to rain and stormwater

Comments Requested

The EPA also has requested comment on other possible changes that it might make before the proposal is finalized, such as the following:

• Whether a construction site with multiple operators should prepare a group Stormwater Pollution Prevention Plan and make it available in some manner to the public
• Increasing the minimum site inspection frequency to once every seven days and within 24 hours of a storm event in excess of 0.25 inches
• Having the same site inspection frequency for snowmelt runoff that may qualify as a stormwater event

What’s Next

The draft permit has a 45-day public comment period which will end on May 26, 2016. The time to influence the requirements of the CGP is now, and the attorneys at Bernstein Shur are able to assist you in submitting comments to the proposed permit and regulations if you wish to do so. Contact Michael Bosse at mbosse@bernsteinshur.com or Katherine Joyce at kjoyce@bernsteinshur.com.