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EPA Begins Active Enforcement of Construction Site Waste Control Plans for Stormwater Control

November 2009

Wolff & Samson Environmental Law Alert

The Environmental Protection Agency (EPA) has begun to enforce a frequently overlooked element of the New Jersey Construction Activity Stormwater General Permit (General Permit).

The New Jersey Department of Environmental Protection (NJDEP), by delegation from EPA under the federal Clean Water Act, regulates stormwater runoff from certain construction activities – generally, construction activities that disturb one acre or more of land, or disturb less than one acre but are part of a larger plan of development or sale – through application of its General Permit.

Section (E) of the General Permit requires that a site-specific Construction Site Waste Control Plan (Waste Plan), which is comprised of a chemical and hazardous products management program, a construction waste handling program, and a spill response program, be developed and implemented for: (1) private construction activities that commenced on or after March 3, 2004; (2) public projects that went out for bid or were awarded a contract after March 3, 2004; (3) construction activities that commenced prior to March 3, 2004 but that did not obtain certification (or approval from an exempt municipality) required under the Soil Erosion and Sediment Control Act; and (4) any other new construction activity for which a Request for Authorization was submitted on or after March 3, 2004 or which receive an automatic renewal of authorization under the General Permit after that date.

A Waste Plan must contain very specific components, including sections that set forth and mandate compliance with all applicable OSHA requirements and all applicable provisions of State solid waste, pesticide and litter statutes and regulations, and that require waste storage in covered containers in designated waste collection areas. In addition, stormwater control mechanisms must be inspected on a weekly basis and formal inspection reports must be maintained on site.

Until recently, the engineering and construction communities in the State believed that Waste Plan requirements were fulfilled by virtue of the fact that the requirements were set forth in the General Permit. Additionally, soil conservation districts and NJDEP have not raised this issue in any significant manner to date. However, EPA has recently undertaken an aggressive initiative to enforce Section (E) of the General Permit and is now contacting construction site managers and site owners to inform them that a separate, stand-alone Waste Plan must be developed and implemented at subject construction sites. EPA has stated informally that this effort is aimed at achieving compliance with Best Management Practices and that it is not seeking to shut down construction operations or to necessarily impose fines at this point. Nevertheless, EPA does have statutory authority to impose either or both of these penalties.

Development of a Waste Plan is not an onerous undertaking, and several resources that can be used to create and implement a plan are set forth on EPA’s website. However, the construction community is advised to seek assistance from counsel in developing Waste Plans for any subject construction sites to ensure that the requirements set forth in the General Permit are met and to avoid imposition of fines or shut down orders.