On May 28, 2019, EPA issued a Federal Register notice for Final Modification to National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities at 84 FR 24503-24506 (May 28, 2019) available at https://www.govinfo.gov/content/pkg/FR-2019-05-28/pdf/2019-11075.pdf. The Federal Register notice states:
All ten of the Environmental Protection Agency (EPA) Regions today are issuing a final modification to the 2017 National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges from construction activities, also referred to as the ‘‘2017 Construction General Permit (CGP)’’ or ‘‘2017 CGP,’’ which became effective on February 16, 2017. The modified permit, hereinafter known as the ‘‘modified 2017 CGP’’ or ‘‘final modified permit,’’ replaces several conditions in the original 2017 CGP and relevant fact sheet sections. The scope of the modification is limited to only these conditions; all other conditions remain the same. The permit term also remains the same, meaning the modified 2017 CGP will still expire on February 16, 2022.
According to the Federal Register notice, modifications to the 2017 CGP include:
1. Removal of two examples for definition of operator that EPA determined may cause “unintended [as opposed to intended???] confusion regarding who would qualify as an “operator;”
2. Adjusting the wording of erosion control and pollution control requirements to align with C&D ELG requirements set forth at 40 CFR Part 450 and clarify intent regarding minimizing dust, minimizing channel and streambank erosion and scour in the immediate vicinity of discharge points, and storage, handling, disposal of products and wastes): and
3. Clarification of individual responsibility in multiple operator scenarios.
The modified 2017 CGP and accompanying fact sheet are available in the Docket (EPA–HQ–OW–2015–0828) as well as on the EPA’s construction stormwater website at https://www.epa.gov/npdes/stormwaterdischarges-construction-activities.
Joe’s Takeaway: In light of these modifications, prudent CGP owners and operators should confirm that their operations comply with the regulatory changes in C&D ELG requirements, and review site contracts and agreements with other site operators to ensure that CGP responsibilities are clearly delineated and include indemnification clauses whenever possible.