feature

tips fOr cOntractOrs tO ensure stOrm water cOmpliance

five

tOp

By Dave Scriven-Young, Peckar & Abramson, P.C.

Owners, develOpers and cOntractOrs have faced cOntinued enfOrcement by the u.s. envirOnmental prOtectiOn agency (u.s. epa) and the u.s. department Of Justice Of stOrm water viOlatiOns at cOnstructiOn sites arOund the cOuntry.

Under the proposed consent decree, Toll Brothers will pay a civil penalty of $741,000 and implement a company-wide storm water compliance program. The program will involve improving employee training, increasing management oversight and inspections to minimize storm water runoff from sites.
regulating stOrm water at cOnstructiOn sites

The latest enforcement action, announced on June 20, 2012, was filed against Toll Brothers inc., one of the nations largest homebuilders, in Pennsylvania federal court.1 Toll Brothers has agreed to a consent decree to settle alleged clean Water Act violations at its construction sites in 23 states, including 37 sites in florida.2 The complaint against Toll Brothers alleges more than 600 storm water violations involving alleged failures to comply with permit requirements at its construction sites, including requirements to install and maintain adequate storm water pollution controls.

storm water runoff is generated when precipitation from rain and snowmelt events flows over land or impervious surfaces and does not percolate into the ground. As the runoff flows it accumulates debris, chemicals, sediment or other pollutants that could adversely affect water quality if the runoff is discharged untreated into water bodies.3 impacts from construction sites can be more severe because construction activities can increase runoff and erosion.4

30 Florida Transportation Builder - Summer 2012

The clean Water Act regulates the discharge of storm water runoff through the National Pollutant Discharge elimination system (NPDes) permit program. The NPDes program requires construction site operators engaged in clearing, grading and excavating activities that disturb one acre or more, including smaller sites in a larger common plan of development or sale, to obtain coverage under an NPDes permit for their storm water discharges.5
whO must cOmply with stOrm water regulatiOns at cOnstructiOn sites? Because U.s. ePA has delegated its NPDes permitting authority to many states, contractors must first determine which regulations will apply either U.s. ePA or a particular states regulations. for example, the florida Department of environmental Protection is authorized to implement the NPDes storm water permitting program in the state of florida, with the exception of indian country lands. The Department of environmental Protection (DeP) has issued a Generic Permit for storm Water Discharge from Large

and small construction Activities.6 for states that have not been delegated authority under the NPDes program, federal regulations apply.7 Who is responsible for complying with the requirements of these permits? some contractors may believe that only the owner or developer of a project is responsible for compliance. However, general contractors may also be responsible for compliance in certain jurisdictions. for projects covered by U.s. ePAs general permit, a contractor is an operator, and thus responsible for compliance if the contractor meets one of the following two criteria:
1.

The party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications. The party has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g.,

2.

R E S U L T S

F I R S T

S M

N E W Y O R K N E W J E R S E Y M I A M I S A N F R A N C I S C O L O S A N G E L E S O R A N G E C O U N T Y W A S H I N G T O N , D . C . C H I C A G O W W W. P E C K L AW. C O M

Florida Transportation Builder - Summer 2012

31

they are authorized to direct workers at a site to carry out activities required by the permit). The permit also states that, where there are multiple operators associated with a project, all operators are required to obtain permit coverage. Thus, general contractors should not assume that the owner will take care of the permit or that only the owner could be liable for noncompliance with storm water regulations. it should be noted, however, that subcontractors are not generally considered to be operators under U.s. ePAs General Permit. The florida Generic Permit has similar requirements. Under the Generic Permit, an operator is the person, firm, contractor, public organization or other legal entity that owns or operates the construction activity and that has authority to control those activities at the project necessary to ensure compliance with the terms and conditions of this permit. DeP has stated that typically, the operator will be the owner, developer, or general contractor. However, sometimes the architect or engineer could be an operator if they have operational control over the project and are willing to accept responsibility for compliance with the permit.8 As demonstrated by the proposed consent decree in the action against Toll Brothers, compliance with storm water regulations is extremely serious. The clean Water Act authorizes the Administrator of U.s. ePA to commence a civil action for appropriate relief, including a permanent or temporary injunction for violations of the storm water regulations and permits.9 The clean Water Act also authorizes actions filed by states to which U.s. ePA has delegated authority under the clean Water Act10; citizen lawsuits may also be filed to compel compliance.11 The current civil penalty for clean Water Act violations is $37,500 per day for each violation.12
tips fOr ensuring cOmpliance with stOrm water regulatiOns at cOnstructiOn sites Given tougher enforcement by U.s. ePA and state en-

1.

Designate at each site a storm water compliance representative, who would have the responsibility to supervise all work necessary to meet storm water requirements, including taking responsive action to cease or correct violations of storm water requirements. Designate a corporate-level storm water compliance representative to oversee and manage the sitespecific representatives. conduct regular inspections of sites for storm water compliance by the site-specific compliance representative with follow-up by the representative to correct any issues or potential violations. review of the inspection reports by the corporate-level storm water compliance representative. implement a storm water training program, including employee training, storm water compliance representative training, annual refresher training and semiannual training. implement a site-specific storm water orientation program, including explaining how to contact the sites storm water representative as well as the potential consequences for failing to comply with storm water regulations.

2.

3.

4.

5.

cOnclusiOn The latest enforcement action against Toll Brothers dem-

onstrates that U.s. ePA and the states are committed to ensuring that owners, developers and contractors follow storm water requirements across the country. General contractors, in particular, should remember that they may be responsible for ensuring compliance under the general permits of U.s. ePA and some states. The potential consequences, including large civil penalties and injunctive relief, can be severe. Therefore, contractors should take steps now to ensure compliance with storm water regulations at their job sites. Dave Scriven-Young is an associate in the law firm of Peckar & Abramson, P.C. He represents businesses and individuals in litigation matters and has expertise in environmental and construction law. His environmental expertise includes handling significant environmental litigation matters, including Superfund cases and wrongful death, personal injury and property damage claims arising out of underground storage tank leaks, spills of chlorinated solvents and other chemical releases. He has also

vironmental agencies, and the expansive definition of operator in general permits issued by U.s. ePA and some states, contractors must take steps to ensure that storm water regulations and permits are being complied with at their projects. The proposed Toll Brothers consent decree provides some clues as to what steps U.s. ePA expects contractors to take to ensure compliance:

32 Florida Transportation Builder - Summer 2012

represented clients before federal and state environmental agencies in enforcement matters. Dave can be reached at dscriven-young@pecklaw.com. References: 1 United states v. Toll Brothers, inc., case No. 2:12-cv-03489MsG (e.D. Pa.).
2

40 cfr 122.26(b)(15)(i). 62-621.300(4), f.A.c. A copy of floridas generic permit can be found at http://www.dep.state.fl.us/water/storm water/npdes/docs/cgp.pdf. A copy of the U.s. ePAs general permit can be found at http://www.epa.gov/npdes/pubs/cgp2012_finalpermit.pdf. florida DeP construction Activity (cGP) frequently Asked Questions (fAQs), http://www.dep.state.fl.us/ water/stormwater/npdes/cgp_faq.htm. 33 U.s.c. 1319(b). 33 U.s.c. 1319(a). 33 U.s.c. 1365. 40 c.f.r. 19.4.

More information concerning the Toll Brothers settlement, including a copy of the consent decree, can be found at http://www.epa.gov/compliance/resources/cases/ civil/cwa/tollbrothers.html. More information from U.s. ePA on storm water and regulatory requirements can be found at http://cfpub. epa.gov/npdes/home.cfm?program_id=6. More information from U.s. ePA on storm water discharges from construction activities can be found at http://cfpub. epa.gov/npdes/stormwater/const.cfm.

10

11

12

P.O. Box 1589 Inglis, Florida 34449-1589 Phone: 352-447-5488 X 227 Fax: 352-447-4133

Florida Transportation Builder - Summer 2012

33