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EPA Steps Up Enforcement Activity to Reduce Storm Water Runoff from Construction Sites
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January 19, 2009
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By Christopher Marraro
Contractors and project owners should be aware of the recent increase in enforcement activity by the U.S. Environmental Protection Agency at construction sites across the country.
Storm water runoff at construction sites was a particular target of EPA enforcement and compliance activity in 2008. Violations involved all types of projects, including retail, manufacturing and commercial/residential developments.
For example, four of the nation’s major home builders paid more than $4 million to settle claims arising from alleged permitting violations in 34 states and the District of Columbia. The EPA made a similar splash in the retail sector, settling claims against a prominent retail chain for its alleged failure to: 1) obtain proper storm water permits; 2) develop adequate Storm Water Pollution Prevention Plans (SWPPPs); and 3) properly implement best management practices (BMPs) in the construction of multiple retail stores. The retailer paid more than $1 million in penalties and agreed to implement a nationwide compliance program for future construction projects.
Given this recent enforcement activity, contractors and project owners should refocus their efforts to develop and implement storm water designs that meet the requirements of the federal Clean Water Act and all applicable state and local regulations. Storm water permits do not require zero discharge. Rather, they seek to limit the amount of sediment that will be discharged over the course of a certain period of time. The heart of the permit is the SWPPP, which focuses on two essential requirements:
|  | A site description identifying sources of pollution in storm water discharges.
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| | A plan that identifies appropriate measures to reduce potential discharges – also known as best management practices or BMPs.
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Examples of BMPs include: inspecting and maintaining the integrity and location of silt fences (particularly after rainstorms); using rocks or other materials to cover storm-drain inlets; protecting surrounding wetlands or other sensitive areas through clear demarcation, grading and terracing large slopes; and sequencing construction activities so as to not expose soil for long periods of time.
Determining what constitutes compliance with the SWPPP (which can vary slightly from state to state) is important to avoiding an enforcement action. Given the recent increase in EPA enforcement activity, contractors and project owners should seek the assistance of experienced attorneys and design professionals in assuring that their prevention plans comply with applicable federal and state laws.
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