DEDICATED TO STRATEGIC BUSINESS ISSUES FACING OWNERS, DEVELOPERS,
& THE Project

Home | 2004 Edition 

DEPARTMENTS

From the Editor-in-Chief
Captains of the Industry
Business Management
Insurance & Bonding
Recent Court Decisions
Taxes & Accounting
Public-Private Ventures
Calendar of Events

COLUMNS

Finance
Technology
Labor
Federal Watch
International
Washington, D.C.
Environment
Law

Archive

About

Order

Advertising

Let Us Hear From You

Editorial Advisory
board

CBR Staff

Environment

Initiating an Environmental Regulatory Overview - A Primer for the Construction Trades

In today's highly competitive marketplace, planning for construction requires planning for compliance with a variety of environmental regulations. Whether it is building a new facility or modifying an existing one, numerous environmental requirements can be triggered. These requirements significantly impact construction costs and project completion time. Understanding these requirements and the potential impacts to your construction project can mean the difference between success and failure. This column will review some of these regulations.

Soil Erosion and Sedimentation Control Standards

To varying degrees, all earth-moving activities require development, implementation and maintenance of erosion and sedimentation control measures to minimize adverse impacts resulting from uncontrolled run-off and erosion of soils. Soil erosion and sedimentation control standards are typically administered at the local level (i.e., municipality or county level) via the site plan or land use review process. Compliance is generally required when more than a certain minimum area of soil is disturbed. This threshold amount can range from as little as 5,000 square feet to as much as five acres.

Most local governments require the applicant to have a pre-construction meeting that includes the municipal/county engineer, contractors, and utility representatives. After the meeting, the applicant develops a plan based on the guidance obtained at the session. Basic plan elements include both physical and administrative controls. Physical controls can include the use of hay bales, silt fencing, velocity reduction devices and sedimentation basins. Administrative controls include items such as visual inspection of control devices and qualitative/quantitative water quality monitoring.

Approval of plans typically may require from 30 to 90 days from time of submittal. Approval must be obtained prior to the start of any construction activity.

Stormwater Regulations and Permits

A complex set of factors determines whether any specific facility is subject to stormwater regulations. These regulations are encompassing and impact industrial, commercial, retail, institutional, municipal and construction-related stormwater discharges.

The EPA's stormwater permitting program is implemented in two parts, known as Phase I and Phase II. Phase I discharges typically include heavy industry, large and medium-sized municipalities, and large construction sites (over 5 acres). Phase II typically includes discharges from light industry, retail, commercial and institutional facilities, small municipalities and small construction sites (over 1 acre).

Construction related stormwater permits are typically tied to the approval of county/municipal soil erosion and sedimentation control plans. Upon filing a notice of intent (NOI) with the governing county/municipal authority, a soil erosion control plan is submitted for review and certification. The best management practices to control stormwater related erosion and sedimentation are an important component of the certification process. The implementation of Phase II rules for construction sites (sites impacting more than one acre) by the individual states will impact the construction industry by requiring the use of generally accepted best management practices at significantly more sites than under the old Phase I rule.

Regional River Basin Commission Approvals

If the existing or proposed facility is located adjacent to an environmentally sensitive area such as a major surface water body or groundwater protection zone, permits from a regional agency may be required. River Basin Commissions (RBCs) in many areas throughout the nation control and regulate activities that affect surface and groundwater resources, including withdrawals, diversions and/or discharges to surface water or groundwater.

In some areas of the country, the regional RBC must approve construction projects if they fall within a specified distance from a sensitive water resource or if the project's use of the resource impacts a certain volume of water. For example, under the consumptive use make-up requirements, a facility may have to locate alternative water sources, curtail withdrawal, or release stored water during periods of low flow. The application review may take from as little as two months to as long as one year or more. Approval from the RBC must be obtained well in advance of the start of any construction activity.

Water Pollution Control Permits

The construction of a new process at an existing industrial facility may require the expansion or modification of the site's wastewater treatment plant (WWTP). At a minimum, sewer line connections will need to be constructed from the new facility to the WWTP. Such sewer line work may require sewer extension permits. In addition, if modifications to plant processes are undertaken, compliance with strict pre-treatment regulations are likely to be triggered. De-watering activities associated with excavation for foundation, etc., also fall under the NPDES regulations, and a temporary discharge permit required.

If the facility directly discharges to surface water or groundwater, it likely operates under a National Pollutant Discharge Elimination System (NPDES) permit, or state equivalent. This permit will need to be modified to incorporate changes to the plant and its effluent as a result of the new process. Similarly, discharges to a local publicly owned treatment works (POTW) (also known as an indirect discharge) will also require issuance of or modification to an "Industrial Discharge Approval." For discharges to a POTW, an Industrial Discharge Approval eliminates the need to obtain a NPDES permit.

Once the plant modification package is submitted to the state or federal agency, there will be a 6-to-12 month review period prior to the issuance of the new/modified NPDES permit. POTW approval of an Industrial Discharge can be obtained in as little as 45 days. The facility must have an approved permit prior to making any changes in the WWTP operation.

Air Pollution Control Permits

There are numerous federal and state laws that apply to the control of air pollutants from industrial facilities. The construction of a new process at such a facility will typically trigger the need for a permit. Depending upon the kind of facility and the quantity and types of emissions, the air permit application may be simple or complex. Of all facility construction related permits, gaining approval of the air permit is typically the most likely to impact both construction costs and schedule.

In many instances the state's environmental agency will regulate the emissions of contaminants into the ambient atmosphere. Any new or altered piece of equipment or control apparatus requires a pre-construction permit. It may take several weeks or months to prepare permit applications. Agency review may take from three to five months before a permit is issued. Major air sources typically take even longer. A permit-to-construct must be issued to the facility prior to the installation of this equipment. If construction of the new facility incorporates the installation of the air pollution control equipment, the entire project schedule may be affected.

Upon completion of the construction phase of the project, including the installation of the air pollution control equipment, the facility must apply for a permit-to-operate. The regulatory agency will usually require testing of the equipment to ensure that the type and quantity of air contaminants being emitted from the equipment or control apparatus meets the limits established in the pre-construction permit. Regulatory agencies generally take from three to five months to process the permit-to-operate, once all of the test data have been received. These time frames are important to incorporate into the project schedule with regard to plant start-up.

In addition to these air permits, construction of a new process or the expansion of an old one, can cause a facility to fall under the EPA's Accidental Release Prevention Requirements of the Clean Air Act. In order to trigger these regulations, an owner or operator of a stationary source must have more than the threshold quantity of a "regulated substance," as defined by the regulation. A facility that is subject to these regulations must prepare a risk management plan and conduct air modeling of the area surrounding the facility to determine the risks associated with a catastrophic release of the substance in question.

Resource Conservation and Recovery Act (RCRA) Permits

RCRA and the regulations promulgated under it are applicable to the generation, treatment, storage, and disposal of hazardous waste. Facilities that generate hazardous waste and store it for less than 90 days are not required to obtain a RCRA permit. However, they must still comply with certain provisions for generators of hazardous waste, which include Department of Transportation requirements for the transportation of such wastes. Requirements for generators depend on the amount of hazardous waste generated each month. If the generation of hazardous waste is part of a construction project, then compliance with RCRA regulations is mandatory.

Facilities that treat, store or dispose of hazardous waste on-site are required to have permits under RCRA. These permits are site specific for the type of treatment, storage, or disposal that occurs at the facility. For example, if a facility treats hazardous waste using a solidification process, then the facility must have a RCRA permit for this particular process prior to sending it offsite for final disposal. If a facility stores hazardous waste for more than 90-days, a storage permit for the particular type of storage facility is required, for example, a surface impoundment or a drum storage facility.

RCRA impacts could also be felt if the construction of a new process increases the amount of hazardous waste generated at a facility and changes the status of the generator. RCRA recognizes three classes of generators: Conditionally Exempt Small Quantity Generators (CESQGs), generate less than 100 kg per month of hazardous waste; Small Quantity Generators (SQGs), generate between 100 kg per month and 1,000 kg per month of hazardous waste; and Large Quantity Generators (LQGs), generate more than 1,000 kg per month of hazardous waste. Each class of generator carries with it specific duties under RCRA. For example, SQGs can store wastes on-site without a permit for 180 days, whereas LQGs only have 90 days.

Toxic Substances Control Act (TSCA)

This law and its accompanying regulations establish procedures for reporting certain chemical substances used or transported by manufacturers and importers. If the construction of an industrial facility involves a project that will import or produce a new chemical substance, TSCA regulations will be triggered.

One of the elements of the approval process is the submission of a health and safety study for the chemical substance. The study must include long and short-term tests of mutagenicity, carcinogenicity or tetrogenicity, as well as other biological tests. In addition, tests for ecological or other environmental effects on invertebrates, fish or other animals and plant life must be performed. Assessment of human and environmental exposure, including workplace exposure, must be included.

Approval by EPA is necessary prior to manufacturing a chemical in commercial quantities. Once all of the studies are complete and the data is submitted to EPA, it typically takes 10 months to receive approval.

Spill Prevention Control and Countermeasure (SPCC) Regulations

If the construction or expansion of an industrial facility includes adding aboveground or underground storage tanks for petroleum products, EPA's SPCC regulations could be triggered. According to these regulations, cumulative storage of petroleum products in excess of 1,320 gallons (660 gallons in one container) for aboveground tanks, and 42,000 gallons for underground tanks, triggers federal requirements for spill prevention and control. Once this threshold is exceeded, all above- and underground petroleum storage tanks must be included in a facility-specific Spill Prevention, Control and Countermeasure (SPCC) Plan that is to be maintained on-site. A Professional Engineer must certify the SPCC Plan, and the regulations require that provisions for secondary containment and control be provided for petroleum storage tanks and that such controls be maintained. The SPCC Plan must be up-dated once every three years.

Conclusion

Regulatory compliance matters can have serious consequences for construction projects at industrial facilities, affecting both the project cost and schedule. A regulatory over-view for such projects has become a necessity in light of an ever-increasing regulatory framework. Being able to anticipate environmental regulations and their respective impacts is the only way that industry officials and their clients can ensure a smooth running construction project.