30 Florida Transportation Builder - Summer 2012

Owners, develOpers and cOntractOrs

have faced cOntinued enfOrcement by

the u.s. envirOnmental prOtectiOn agen-

cy (u.s. epa) and the u.s. department Of

Justice Of stOrm water viOlatiOns at

cOnstructiOn sites arOund the cOuntry.

The latest enforcement action, announced on June 20, 2012, was filed against Toll Brothers inc., one of the nation’s 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 require-ments at its construction sites, including requirements to install and maintain adequate storm water pollution controls.

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

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 im-pacts from construction sites can be more severe because construction activities can increase runoff and erosion.4

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

fivetips fOr cOntractOrs

tO ensure stOrm water cOmpliance

feature

Florida Transportation Builder - Summer 2012 31

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 com-mon 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 state’s 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. ePA’s 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.”

2. “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.,

C O U N S E L T O T H E C O N S T R U C T I O N I N D U S T R Y

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 SO 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 A W . C O M

R E S U L T S F I R S T S M

32 Florida Transportation Builder - Summer 2012

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 opera-tors 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. ePA’s 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 opera-tor 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 autho-rizes 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 sitesGiven tougher enforcement by U.s. ePA and state en-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:

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. 2. Designate a corporate-level storm water compliance representative to oversee and manage the site- specific representatives.

3. 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.

4. implement a storm water training program, including

employee training, storm water compliance represen-

tative training, annual refresher training and semi-

annual training.

5. implement a site-specific storm water orientation

program, including explaining how to contact the

site’s storm water representative as well as the

potential consequences for failing to comply with

storm water regulations.

cOnclusiOnThe 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 conse-quences, 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 environ-

mental 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

Florida Transportation Builder - Summer 2012 33

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-03489- MsG (e.D. Pa.).

2 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.

3 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.

4 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.

5 40 cfr 122.26(b)(15)(i).

6 62-621.300(4), f.A.c. A copy of florida’s generic permit can be found at http://www.dep.state.fl.us/water/storm water/npdes/docs/cgp.pdf.

7 A copy of the U.s. ePA’s general permit can be found at http://www.epa.gov/npdes/pubs/cgp2012_finalpermit.pdf.

8 florida DeP “construction Activity (cGP) frequently Asked Questions (fAQs)”, http://www.dep.state.fl.us/ water/stormwater/npdes/cgp_faq.htm.

9 33 U.s.c. § 1319(b).

10 33 U.s.c. § 1319(a).

11 33 U.s.c. § 1365.

12 40 c.f.r. 19.4.

P.O. Box 1589 • Inglis, Florida 34449-1589

Phone: 352-447-5488 X 227 • Fax: 352-447-4133