By Michael A. Nestoroff of Lane Powell
Published April 7, 2020
With construction at a virtual standstill as a result of Gov. Jay Inslee’s stay-home orders, many projects are faced with the dilemma of how to comply with the requirements of the Construction Stormwater General Permit (CSGP) during shut-down. Although the Washington Department of Ecology has recognized that activities may be disrupted as a result of the COVID-19 pandemic and Governor’s orders, that does not necessarily mean a free pass for permit noncompliance. Ecology’s websitecouches its approach as “regulatory flexibility,” and states that all applicable state requirements remain in effect. Ecology says it will exercise discretion within its authority when deciding whether to pursue potential violations that may be linked to the current pandemic. There are, however, some steps a permittee can take to protect itself.
CSGP Permit Requirements
During normal times, the CSGP requires monthly discharge monitoring reports within 15 days following the end of each month documenting the weekly turbidity or transparency sampling results and pH, if applicable where concrete or engineered soil is being placed. Where benchmarks are exceeded, the CSGP requires review and revision of the project’s Stormwater Pollution Prevention Plan, immediate implementation of source control or treatment practices within 10 days of the discharge, and documentation in the site logbook. If the discharge is outside specified turbidity standards, sampling must continue until the turbidity or transparency falls back within standards or is eliminated.
Options During Shutdown
Unfortunately, these are not normal times. Ecology still recommends continued compliance, while expressing awareness that some businesses may be running into issues due to impacts from the COVID-19 pandemic. The current CSGP provides some, limited, guidance for ways to navigate the current situation.
- If a permittee is unable to comply with any part of the CSGP and the resulting non-compliance may cause a threat to human health or the environment, or exceed numeric effluent limits, they must notify Ecology within 24 hours of the failure to comply; take immediate action to prevent a discharge or pollution, stop or correct the noncompliance and repeat sampling and analysis, reporting the results to Ecology within five days; and submit a detailed written report to Ecology within 10 days. The CSGP, however, provides that Ecology “may waive the requirement for a written report on a case-by-case basis if the permittee provides immediate notice within 24 hours.”
- If there is an “upset” event, then it is imperative to notify Ecology immediately and document everything about the event contemporaneously. The CSGP defines an “upset” as “an exceptional incident in which unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the permittee.” It does not include noncompliance caused by operational errors, improperly designed or operated treatment facilities, lack of preventative maintenance or careless or improper operation. An upset is an affirmative defense to an enforcement action, but to meet their burden of proof a permittee must show through properly signed, contemporaneous operating logs or other relevant evidence that:
> An upset occurred and the permittee has identified the cause(s);
> The permittee’s facility was properly operating at the time;
> Notice was submitted as required within 24 hours of becoming aware of the event; and
> The permittee complied with the remedial measures required by the CSGP.
- The CSGP contains a duty to mitigate, which requires a permittee to take all reasonable steps to minimize or prevent any discharge that has a reasonable likelihood of adversely affecting human health or the environment.
A further example of how to approach compliance is Sound Transit’s April 3 Construction Shutdown Overview. In directing its contractors to suspend almost all construction on transit expansion projects, Sound Transit also states that the very limited work that does continue “will focus on tasks considered critical and/or necessary to ensure that sites remain safe and secure and/or to avoid mobility, environmental or other impacts.”
At the heart of the CSGP options, and Ecology’s COVID-19 recommendations, is a simple step -- permittees should reach out to Ecology directly to discuss issues relating to CSGP compliance. The one factor permittees may have going for them right now is that they are not alone, and making early, and direct, contact with the agency may be the best approach in a very difficult time.
Michael A. Nestoroff is a Shareholder in the Seattle office of Lane Powell. He is a preeminent environmental lawyer with extensive experience representing clients in environmental litigation, agency negotiations, property acquisition and leasing issues, and counseling clients on risk and compliance. He can be reached at nesteroffm@lanepowell.com or 206.223.6242.