Virginia DEQ Amends Construction General Permit to Include Disposal Disclosure Requirements

Contractors that obtain coverage under the Virginia General Permit for Discharges of Stormwater from Construction Activities ("Construction General Permit" or "Permit") will soon need to disclose information regarding the disposal of excavated material from project sites.

The Construction General Permit regulation, 9 VAC 25-880, governs stormwater discharges from regulated construction activities. Contractors seeking coverage under the Construction General Permit must submit a registration statement that provides, among other things, information regarding the proposed land disturbance areas to be covered, off-site support locations, certain hydrologic information, information regarding any nutrient credits if used, and a certification that a Stormwater Pollution Prevention Plan will be or has been prepared. Contractors should review 9 VAC 25-880-50 for specific contents of the Registration Statement.

Starting January 1, 2021, contractors will also need to include in their Registration Statement specific information regarding the location and contents of sites where excavated materials are disposed off-site.  Specifically, DEQ amended the Permit's registration requirements in section 9 VAC 25-880-50(B)(5) by adding the following required disclosure:   

If excavated material (i.e., fill) will be transported off site for disposal, the name and physical location address, when available, of all off-site excavated material disposal areas, including city or county; latitude and longitude in decimal degrees (six digits - ten-thousandths place)[.]

The amended requirements went into effect November 25, 2020, and DEQ has informed us that they intend to begin enforcement of this provision starting January 1, 2021 for all new registrations. 

For existing projects covered by a Construction General Permit, DEQ has indicated that the Contractor does not have to submit an updated Registration Statement if the Project is disposing of fill material off-site, but they interpret the off-site disposal area as a subset or type of "off-site support activity" that must either be covered by the principal project's General Construction Permit, or must have other stormwater permit coverage through an individual VPDES permit or through its own Construction General Permit.

While this requirement does not appear onerous on its face, it may bring some practical problems, such as:

• Contractors may not know at the beginning of a project whether they will use off-site disposal and the need for off-site disposal may be an emergent requirement during construction. For projects commencing CGP coverage after January 1, 2021, this will likely require an update to the Registration Statement and potentially an increase in permit fee.
• Contractors may have to change off-site disposal areas during a project, also requiring an updated Registration Statement.
• The new disclosure also requires a statement as to the "contents" of the material disposed of off-site. DEQ has no guidance on what descriptive information is required as far as "contents" of the material.  It does not require a chemical characterization, such as for hazardous or solid waste, nor does it require any specific geologic or soil characteristics. 
• The off-site disposal area location and information is being made available by DEQ to all localities, which may increase oversight and inspections by local governments of these disposal areas.

A final caveat is that the Construction General Permit is administered by DEQ for some projects, and by localities for others. DEQ's most recent listing indicates that about 94 counties, cities and towns in Virginia operate their own stormwater program, including all of the major urban areas.  These localities may have their own policies and interpretations of the new requirement.