Weathering the Storm

Construction excavation and earthmoving recently got a bit more complicated as Phase II of EPAs Storm Water Final Rule went into effect this past spring. The change creates potential for rental dealers who specialize in construction equipment to capitalize on a unique opportunity.

While the subject seems new to some, Phase II originated from a 1992 court decision handed down in a lawsuit against the EPA for not adequately protecting bodies of water from storm water discharges running off construction sites. The previous 1990 creation of Phase I. in which EPA`s Office of Water established the National Pollutant Discharge Elimination System, also had stemmed from a lawsuit aimed to prodding the agency into tighter enforcement of the Clean Water Act.

While Phase I applied to construction work disturbing five acres or more. Phase II narrows it down to projects disturbing land of one to five acres, making it a concern for smaller contractors. In addition, individual states, counties and municipalities can all apply additional restrictions on top of EPAs baseline rule.

The basic requirements of the rule require contractors to:

1. Submit a Notice of Intent that includes general information and a certification that the construction activity will not impact endangered or threatened species.
2. Develop and implement a Storm Water Pollution Prevention Plan with appropriate best management practices to minimize the discharge of pollutants from the site.
3. Submit a Notice of Termination when final stabilization of the site has been achieved as defined in the permit or when another operator has assumed control of the site.

Maximum penalties are $27 500 per day. per violation, although enforcement isn`t expected to be stringent, as EPA will emphasize compliance assistance for the first few years.