Compliance is a word we use over and over in the construction stormwater industry, but what does it mean, and who is supposed to be compliant? According to the dictionary, compliance means conforming with or yielding to. In Webster’s Dictionary, the example sentence under the word compliance is “Compliance with the law is expected of all.” Well, OK then, you have your answer—all!
Compliance Alphabet Soup
Let’s start at the beginning. The Clean Water Act (CWA) is the primary federal law that governs water pollution. The principal body of the law currently in effect is based on the Federal Water Pollution Control Amendments of 1972. Specifically within the CWA, Section 402 entitled National Pollutant Discharge Elimination System (NPDES) created a permit system for regulating point sources of pollution. Point sources include industrial facilities, municipal governments, and some agricultural facilities, such as animal feedlots. The 1987 Water Quality Act expanded the NPDES permit program to cover stormwater discharges from municipal separate storm sewer systems (MS4) and industrial sources. In the list of industrial source categories, construction activity is category 10. EPA opted to permit construction activity separately from other industrial sources because of the significant difference in the nature of these activities.
The NPDES construction activity stormwater permit requires all construction sites covered under the general permit to prepare a stormwater pollution prevention plan (SWPPP) and implement best management practices (BMPs). So who is supposed to obtain coverage or authorization under the NPDES permit and required to prepare this SWPPP and implement these BMPs? Well, that depends where the construction site is located and what the construction general permit for that area requires. The EPA and each state with delegated authority for the NPDES program have their own definitions of who should obtain permit coverage or authorization. It is either an owner, which usually means the landowner of the site were the construction activity is located, or an operator. Operator has two definitions—operator of plans and specifications, or operator of day-to-day-control. The operator of plans and specifications could be the landowner or developer, and the operator of day-to-day control is usually the general contractor. If you are unclear who should file the notice of intent, which is the application for coverage under the general permit, call the agency with authority over the NPDES and ask for clarification.
Meeting the Requirements
Ultimate responsibility to meet all requirements of the NPDES permit program lies with the company, partnership, or municipality that has coverage or authorization under the permit program. That is who will receive any possible notice of deficiency or violation under the permit requirements.
There is a certification statement that must be signed to receive coverage or authorization under the construction general permit. Have you ever read this certification? It states: “I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”
The construction general permit states that all documents prepared as a requirement of the permit, including inspection forms, have this certification statement above the signature block. This is why it is important that the signature be that of an officer from a corporation, a partner from a partnership, or an elected official from a municipality.
The entity with permit coverage or authorization must make sure the SWPPP was prepared according to the regulations and contains all required information. That entity also is responsible for making sure the contractor is aware of its role and responsibility to implement and maintain the SWPPP from the start of construction until permit coverage is terminated after all temporary controls are removed and the site is fully and completely stabilized. The entity with permit coverage or authorization needs to state the regulatory requirements in all contractual documents with all companies who could affect compliance on the site so everyone understands their responsibility and liability.
It is very possible that the state’s permit program allows for co-permittees that would then give the co-permittee company a shared liability for that portion of the permit for which it is responsible. Another avenue to responsibility is if there is a required contractor/subcontractor certification within the permit program. This is where the general permit would require certain contractors or subcontractors to sign certification statements that also make them liable for specific provisions under the permit.If the subcontractor certification is not a permit requirement, you can still create your own contractor certification to make all your subcontractors liable contractually with the NPDES permit by creating a form with a certification statement without the phrase “under penalty of law” in it, such as, “I certify that I understand the terms and conditions of the National Pollutant Discharge Elimination System (NPDES) permit that authorizes the stormwater discharges associated with industrial activity from the construction site identified as part of this certification.” Before you make the subcontractors sign this statement, it is in your best interest to provide them with a copy of the construction general permit and let them read it so they know and understand what they are agreeing to. This is a device that creates awareness of the stormwater requirements on the job site and shared liability among everyone.
In addition to the regulatory liability, there is also contractual liability. Every contract should have one very important sentence in it that most people just gloss over. It reads, “You are responsible for compliance with all federal, state, and local laws.” That means contractually, everyone signing a contract to do work on a construction project could be liable for violations of a water quality permit such as the NPDES permit or local land disturbance ordinances. Unfortunately it usually comes down to whoever has the better attorney wins.
Who’s on the Hook?
So who is really responsible to make sure the regulations are followed? The answer is everyone involved in the construction project that has the ability to cause pollution to leave the site and enter waters of the United States. Whether it is the land owner or operator of plans and specifications who obtains permit coverage, the general contractor who has day-to-day control over the construction project, the land-grading contractor who does the major earth movement, or such subcontractors as painters, masons, or concrete truck drivers, everyone must work together to achieve the common goal of reducing pollutants from the stormwater discharge from the construction site.
But let’s not forget the design firm who created the SWPPP to be implemented on the site to reduce or eliminate pollutants from leaving the construction site. It must also be responsible for the production of a plan that is correct and workable, covering all the area and activities necessary to build the project. It must also work with the contractor with modifications of the plan as things change throughout the construction project until it is complete.
The risk of noncompliance with the regulations runs anywhere from a small fine to very large fines as well as consent orders or stop-work orders that will jeopardize whether the project is ever completed—and that is not what anyone wants. Consent orders are voluntary agreements between two parties upheld by the courts to stop legal action or law suits from occurring.
Consent orders may include a monetary penalty, required training, additional requirements above those in the construction general permit such as doing stormwater compliance inspections on a daily basis, or other activities so that possible stormwater violations do not occur in the future.
One key component in almost all consent orders that are handed down includes some form of training. Training allows everyone to understand their responsibility in compliance with the permit program, whether an owner or just a truck driver. Through training you can learn and understand what is expected, what you are responsible for, and how you can help maintain compliance on the construction site. Training should be provided to all those involved, including owners and developers as well as the subcontractors and utility crews.
There are three key components to maintain compliance and reduce risk of possible violations: 1) Make everyone responsible and liable; 2) provide training for all persons involved in the construction project so they understand how to maintain compliance with the regulations; and 3) good communication on the job site—from the designer to the general contractor and from the general contractor to the subcontractors—will help everyone understand their roles and responsibilities in stormwater compliance.
Whether it’s regulatory compliance or contractual obligations, no one is immune from legal actions due to potential violations of the Clean Water Act or other environmental laws, regulations, or ordinances. The more you know and understand what is expected of you, the better the performance to achieve the goals.
For more information on how to prepare SWPPPs and update and maintain the SWPPPs to meet regulatory requirements or provide the proper training to all companies involved in the construction project so full compliance is understood by everyone, contact ABC’s of BMP’s at www.abcbmp.com.
