Stormwater Regulations Crackdown
The EPA is aggressively enforcing new and existing stormwater runoff rules. Is your company vulnerable to penalties?
The EPA is continuing to aggressively implement a national enforcement initiative regarding stormwater requirements, with a focus on those requirements applicable to construction sites. In brief, the stormwater program for construction activities requires sites to obtain discharge (NPDES) permits and to use best management practices to minimize stormwater runoff and control erosion and sedimentation. The EPA has said it intends to enforce these stormwater requirements more vigorously and impose penalties on project owners, developers, and contractors who fail to follow the requirements.
This new focused enforcement effort started in May 2004 with a bang - a headline-grabbing $3.1 million penalty against Wal-Mart. The penalty was the largest civil penalty ever paid for stormwater violations. The EPA has continued to aggressively pursue large penalties against high-profile targets for stormwater violations during both construction and operations of facilities. For example, this past November, the EPA issued a penalty of more than $1 million against the Seven-Up/RC Bottling Company of Southern California; the penalty included $600,000 in criminal penalties for stormwater violations committed during operation of one of its facilities.
By issuing these penalties, the EPA is holding true to an enforcement pattern in which it issues new requirements and allows a limited amount of time for affected entities to come into compliance. Next, the agency embarks on an enforcement crusade that starts with one or more high-profile, high-penalty cases, followed by more routine but diligent enforcement. The Wal-Mart action was a high-profile case that signalled the start of the EPA's across-the-board stepped-up enforcement activities for stormwater rules against all sizes and types of developers. The EPA assistant administrator for the Office of Enforcement and Compliance Assistance was quoted as saying that the Wal-Mart settlement "kicks off" a "campaign" of stormwater enforcement.
Phase II Regulations
In light of this new enforcement effort, property owners about to launch construction projects need to make sure that they are aware of, and are in compliance with, all stormwater regulations. Most important, Phase II of the EPA's stormwater program is now in effect and subject to enforcement. Phase II applies stormwater requirements to construction sites involving earth disturbance activities covering one acre or more. This is a reduction from the previous five-acre threshold that had been in effect since 1991. Individual construction sites smaller than one acre must also comply if they are part of a common development plan that is collectively larger than one acre. State agencies also have the authority to impose stormwater requirements on sites smaller than one acre where stormwater discharge from the site has the potential for contributing significant amounts of pollutants to surface waters or may cause a violation of a water quality standards.
This new enforcement initiative ties into the EPA's decision not to issue effluent limit guidelines (ELGs) for construction sites. ELGs are technology-based discharge limits that apply across the board to a specific industry or type of activity, and are a basic tool of the EPA's water discharge regulations. The agency is relying on the strength of existing stormwater regulations instead of issuing ELGs or enacting new stormwater-related regulations. Accordingly, facilities should expect vigorous enforcement of stormwater requirements already on the books.
Enforcement focuses on two kinds of violations:
• Penalties for failing to apply for and obtain a construction stormwater permit. The EPA has stated it estimates that only 30 percent of construction sites larger than five acres have been obtaining the necessary stormwater discharge permits. It assumes that a significantly lower rate of compliance may be occurring at smaller sites covered by Phase II. These low compliance estimates indicate that the EPA probably believes that there are a lot of easy targets out there.
• Penalties for failing to comply with permit terms, including creating and implementing stormwater pollution prevention plans and best management practices, and for improper monitoring and reporting.
The EPA may seek temporary or permanent injunctions, which can shut down a project, and fines ranging from several thousands to millions of dollars. Additionally, any enforcement action can bring unwanted scrutiny to a construction project. Failure to properly follow stormwater requirements can raise questions about whether other related property development regulations, such as wetlands requirements, have been met.
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