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EPA Continues Aggressive Federal Enforcement Trend Regarding Discharges from Construction and Development Sites

January 2011

This Environmental Law Alert is provided as part of Wolff & Samson PC’s continuing effort to apprise the regulated community of quickly developing issues within the construction and development field, and follows our previous Alerts regarding the U.S. Environmental Protection Agency’s (“EPA”) current emphasis on enforcement of construction stormwater discharge standards.

Over the last year, EPA has become increasingly focused on local construction and development issues. Permitted discharges from such sites have been a particular focus for EPA: as of February 1, 2010, all construction stormwater permits issued by EPA or states for construction sites must contain provisions requiring implementation of best management practices and a range of new erosion, sediment control and pollution prevention measures. In addition to these non-numeric requirements, EPA also plans to propose a final rule setting a new turbidity standard for discharges from construction sites by May 30, 2011.

A proposed consent decree lodged in federal court in the Middle District of Tennessee on December 2, 2010 in the matter United States et al. v. Beazer Homes USA, Inc. is the latest example of EPA’s continuing focus on stormwater discharges from construction sites. This proposed consent decree resolves EPA’s allegations that Beazer Homes failed to comply with applicable stormwater discharge standards in violation of the Clean Water Act at the company’s construction sites in 21 states nationwide. The proposed consent decree also resolves separate but related state law claims brought by the states of Colorado, Florida, Indiana, Maryland, Nevada, Tennessee and Virginia. In addition to the payment of civil penalties in an amount to be determined, the settlement requires Beazer Homes to develop improved pollution prevention plans for each construction site, conduct additional site inspections and promptly correct any problems detected. Beazer Homes must also properly train construction managers and contractors, and implement a management and internal reporting system to improve oversight of on-the-ground operations. The Beazer Homes case is the latest in a series of national enforcement actions by EPA, which include those against Wal-Mart and K. Hovnanian Homes.

The proposed consent decree is currently being reviewed by the Middle District Court of Tennessee. Construction site owners and operators should take serious note of the continuing federal focus on local construction and development, and take corrective measures if necessary.

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For more information, please contact:
Robert H. Crespi ¦ Member of the Firm ¦ (973) 530-2060 ¦ rcrespi@wolffsamson.com
Daniel T. McKillop ¦ Associate ¦ (973) 530-2066 ¦ dmckillop@wolffsamson.com