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Environmental Law Newsletter

Erosion and Sediment Controls for the Construction Industry

Provisions of the Clean Water Act establish the National Pollutant Discharge Elimination System (NPDES) as a regulatory scheme to prevent water pollution. Under the NPDES permitting mechanism, certain discharges of pollutants to waters of the United States are authorized. For example, the Construction General Permit (CGP) authorizes certain storm water discharges from construction activities, subject to the conditions and requirements set forth in the permit.

Implementation of Best Management Practices for Pollution Prevention

The preparation of a storm water pollution prevention plan (SWPPP) is included within the CGP’s requirements. Broadly speaking, the SWPPP must identify appropriate controls and measures to reduce pollutants in storm water discharges. According to the CGP, SWPPP’s must include descriptions of all pollution control measures, also known as “best management practices” (BMPs) that will be implemented as part of the construction activity to control pollutants in storm water discharges. Specifically, for every key activity conducted as part of the construction project, the SWPPP must clearly outline all of the following:

  • BMPs suitable for the activity
  • The identity of the operator who is responsible for implementation of the BMPs
  • The sequence in which the BMPs will be utilized over the course of the construction project

As defined by the CGP, BMPs include “schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to waters of the United States.” The permit language also indicates that “treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage” are also included within the definition.

Controlling Pollutants in Storm Water Discharges

Most storm water pollutant BMPs can be generally grouped into two categories:

  1. Erosion and Sediment Controls: Typically address pollutants in storm water generated from the site during active construction-related work. These measures are best implemented with proper planning, installation and maintenance. The United States Environmental Protection Agency suggests the following as examples of erosion controls: mulch, grass and stockpile covers. Sediment controls, on the other hand, may include silt fences, inlet protection, check dams, stabilized construction entrances and sediment traps.
  2. Storm Water Management Measures: Usually installed before and during the completion of construction activities, these measures mainly reduce pollutants in storm water discharges that come from the site after construction has been completed. Among others, the EPA suggests the following examples: on-site filtration of runoff, storm water retention basins and artificial wetlands.

Further, the EPA suggests that “housekeeping” BMPs should also be employed as supplementary measures for the entire period of time over which the construction project takes place. Examples of “housekeeping” BMPs include:

  • Identifying areas for equipment maintenance and repair
  • Waste receptacles at convenient locations
  • Storage areas for chemicals, paints, solvents and other toxic chemicals
  • Properly maintained sanitary facilities
  • Regular collection of waste

Region Four Exemptions

CGP permits are not required for construction activities in all parts of the United States. EPA Region 4 (where the EPA is the permitting authority) is not subject to the CGP requirements. Rather, the EPA utilizes different permitting rules for such areas. Region 4 includes Indian Country in the following states:

  • Alabama
  • Florida
  • Mississippi
  • North Carolina
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