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Abstract
In 1987, Congress amended the Federal Water Pollution Control Act,
commonly referred to as the Clean Water Act, to require the United States
Environmental Protection Agency (EPA) to establish a permitting program
for storm water discharges into waters of the United States. The EPA
promulgated the first stormwater regulations on November 16, 1990.
These regulations set permitting and compliance requirements for
"stormwater discharges associated with industrial activities," as that phrase
is defined in the regulations. Construction activities are included among the
activities defined as industrial activities and, therefore, are subject to the
stormwater discharge permitting and compliance requirements.
Facilities that meet the definition of "stormwater discharge associated with
construction activity" are required to apply for NPDES permit coverage.
Construction activities have two permitting methods available to them. The
first and by far the most common method of obtaining a permit for
discharges from construction activities is to apply for coverage under the
1998 Construction Permit. This permit was finalized by the EPA for
Region VI by publication in the Federal Register on July 6, 1998, and it
expires at midnight on July 6, 2003. The other method of obtaining a
permit for discharges from construction activities, and by far the less
commonly utilized, is to apply for either an individual NPDES permit or an
alternative NPDES general permit. These types of permits involve a much
more comprehensive approval process, including public notice and
opportunity to comment, and are used primarily in cases where it is
determined that the general Construction Permit is not sufficient (for
example, where there will be discharges other than those permitted by the
Construction Permit).
A good source for information about the Construction Permit and EPA
contacts in Region 6 are the EPA Region 6 stormwater sites on the
Worldwide Web, at the following addresses:
http://www.epa.gov/earth1r6/6wq/npdes(water quality division);
http://www.epa.gov/earth1r6/6en/w/sw (enforcement division).
Forms, instructions, and other material about the Construction Permit are
available at these web sites. Materials not available on the stormwater web
sites may often be obtained by calling the following numbers:
Stormwater Hotline: (800) 245-6510;
EPA Documents: (202) 260-7786.
The EPA has delegated authority to environmental authorities in Arkansas,
Louisiana, Oklahoma, and Texas to implement the general permit program
on behalf of the EPA. The rules and regulations of the Arkansas
Department of Pollution Control and Ecology (501/682-0627), the
Louisiana Department of Environmental Quality (504/765-0525), and the
Oklahoma Department of Environmental Quality (405/271-7440 x118)
should be consulted with respect to projects in those states. New Mexico
has not assumed the NPDES storm water program and the EPA directly
implements the NPDES program within the state. However, the New
Mexico Environment Department does have staff to handle storm water
issues (505/827-2798). Texas only recently has obtained delegated
authority for the NPDES stormwater programs, and the EPA will continue
to implement the program during the term of the 1998 Construction Permit,
as discussed in more detail below. The balance of this paper will focus on
the EPA's implementation of the NPDES stormwater program for
construction activities in Texas.
Texas assumed the authority to administer the NPDES program in Texas on
September 14, 1998. As part of this program, known as the TPDES in
Texas, the Texas Natural Resource Conservation Commission (TNRCC)
received federal regulatory power over discharges of storm water
associated with industrial activity (including construction sites) and
discharges of storm water from municipal separate storm sewer systems
(MS4s). Thus, the TNRCC TPDES program now covers all permitting,
surveillance, inspection, public assistance, and enforcement regulatory
processes associated with storm water discharges from those sources.
Discharges of storm water associated with oil, gas, and geothermal
exploration and development activities, however, will continue to be
regulated by the Railroad Commission of Texas.
The transition from EPA administration of the NPDES program to TNRCC
administration of the TPDES program will not be immediate. The EPA is
temporarily maintaining permitting, surveillance, and enforcement
jurisdiction over individual and general NPDES permits proposed for public
comment but not yet final at the time of program assumption by the
TNRCC. The EPA will administer these permits until such time as EPA-promulgated permits expire and the TNRCC adopts new permits to replace
them. For the 1998 Construction Permit, this means that EPA will continue
to receive NOIs and enforce the permit until July 6, 2003. The EPA is also
retaining administration over large and medium MS4 permits issued prior to
Texas program assumption and over EPA-issued construction and multi-sector industrial storm water general permits until the existing permits
expire. As a result, applications for general permits under the 1998
Construction Permit must still be made to the EPA.
In summary, as with any regulatory program, the best defense against the
EPA's "men in black" is to prepare and maintain the notices, plans and
records required by the Construction Permit before an inspection ever
occurs. The EPA is authorized under the Clean Water Act to enter and
inspect a construction site. It is advisable for a person knowledgeable in
erosion and sedimentation control and the provisions of the SWPPP and
Construction Permit to accompany the EPA inspector. A representative of
the EPA should not, however, be unduly delayed or denied access to the
site if, for example, a knowledgeable person is not reasonably available to
accompany the inspector.
If an EPA inspection unfortunately reveals real or perceived violations,
prompt correction (during the EPA's inspection, if possible) may help
mitigate the potential penalty. If an Administrative Order is forthcoming,
an enforcement conference is usually advisable to clarify the facts
underlying a violation and possibly help to eliminate some violations. If an
Administrative Complaint proposing a Class I (up to $27,500) penalty is
forthcoming, it is often possible to negotiate an agreed penalty and Consent
Order, and an extension of time to do so should be requested. If an
Administrative Complaint proposing Class II (up to $137,500) penalty is
proposed, the Complaint should be answered. Settlement discussions or
preparation for hearing, or both, may then ensue.
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