Month: June 2013

The Future of Stormwater

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In 2010, EPA reached a settlement with the Chesapeake Bay Foundation and others to develop additional components of a comprehensive suite of strong regulatory actions that EPA has initiated or pledged to take to restore water quality in the Chesapeake Bay and its tributaries.  These actions include a more robust application of stormwater quality requirements to all new development, regardless of thresholds set in the Phase 1 and 2 stormwater requirements.

An initial deadline to propose the new comprehensive stormwater rule was set for April 10, 2012.  However, EPA has negotiated several extensions to the deadline (the last deadline was June 10, 2013), and EPA now anticipates a December 2013 date for the draft rule.  The rule will apply to all areas – not just large and medium sized municipalities, where Phase 1 and 2 stormwater programs are currently in place.

It is EPA’s goal to incentivize redevelopment in urban built-out areas over new development in undeveloped areas, and this rule is expected to reinforce that goal.  Stormwater runoff treatment standards are expected to be more restrictive for greenfield development than redevelopment of urban areas.  The treatment standard for greenfield development is most likely to mirror the current Phase 2 stormwater treatment requirement to infiltrate the 80th, 85th or 90th percentile storm event, which is around one inch for many areas, depending on a region’s typical rainfall. Lesser stormwater runoff treatment requirements will be required in redeveloped urban areas to reduce urban sprawl.  This new rule has been dubbed “Phase 2 lite”.

EPA has also been considering whether to expand the Stormwater Phase 2 programs to encompass areas likely to develop – not just already developed areas.  In keeping with a watershed focus, EPA is also considering applying the rule on a watershed basis.  The question is not if the stormwater rule will be promulgated; it is how and where it will be applied.

So, what does all of this mean to you?  Our approach to development will have to change.  We will be incorporating stormwater infiltration practices into our development plans for new development and redevelopment.  The success of infiltration practices relies on subsurface conditions at a site, correct design, correct construction techniques, and long term maintenance.  Developers will need to engage designers with expertise in soils, vegetation, hydrology and construction techniques so these practices work properly.  An infiltration practice can fail quickly if correct construction techniques are not followed during construction, so it is likely that the design professional will be required to oversee construction. And then the infiltration practice owner (developer or property owner) will be required to maintain these structures perpetually. To reduce the long term burden of monitoring and maintaining structural infiltration practices, our future designs will need to address stormwater as an asset and incorporate its reuse into the overall design for irrigation needs and other non-potable uses. 

Additional information on the EPA Stormwater rule is available on EPA’s website.  If you have questions regarding the implications of these stormwater rules, please feel free to contact CEC’s Nashville office at (800) 763-2326.

Clean Water Act, Section 308 Requests for Information

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So…you have received a Request for Information from the US Environmental Protection Agency (USEPA) pursuant to Section 308 of the federal Clean Water Act. A Section 308 request is done when the agency has reason to think that your facilities are not in total compliance with their NPDES permit limits. No need to panic – just start compiling the needed information.

Often the first thing that companies do after receiving a Section 308 letter is to call an experienced environmental attorney to get some assistance in working through this process. Odds are you wouldn’t have received this letter if you did not have some exceedances of NPDES permit limits, so the attorney can help you work through usually inevitable enforcement discussions with the USEPA.

Here are the types of information that the USEPA will typically ask for in Section 308 letters. You will need to pull this information together into one location so it can be copied and shipped to the USEPA:

  1. A list of all of your facilities by name, location, NPDES and mining permit numbers.
  2. Copies of each NPDES permit and permit applications for each identified facility.
  3. NPDES data for the past five years (or more), including your Discharge Monitoring Reports (DMR’s) and, often, the lab sheets upon which the DMR’s were based.
  4. You will need to summarize the information from items #1 through #3 (and any additional requested information) into an Excel spreadsheet(s).

Mining facilities with NPDES permits that have discharge violations of metals, chloride, TDS, TSS, pH, etc. may be faced with hefty fines, as well as corrective measures to address and eliminate non-compliant discharges. These corrective measures typically include additional monitoring and reporting, implementing an electronic environmental database management software, implementing an environmental compliance management system, developing a response plan for eliminating effluent limit violations, and conducting internal and/or third-party environmental audits. Depending on the parameters in question, expensive treatment (or pre-treatment) systems may need to be installed.

Known recent civil penalties have ranged from $4 million to $20 million, which doesn’t include costs for corrective measures. Given the amount of money at stake, it is crucial to go into meetings with USEPA as prepared as possible.

If you have questions about the Section 308 process as it relates to mining companies, please contact Jonathan Pachter in our Pittsburgh office at 1-800-365-2324 or Additional information regarding EPA Section 308 matters can be found at the EPA’s website.