Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:08-cv-00115-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA. STATE OF COLORADO. Plaintiffs.
vs.

and

) ) ) ) ) ) ) )

)
Defendant.

Civil Action No. 1:08-cv-00115-SLR

HOME DEPOT USA, N.{C.,

)
)

T]I\ITED STATES'MEMORANDT]M IN ST]PPORT OF MOTION TO ENTER CONSENT DECREE

COLM F. CONNOLLY United States Attornev PATRICIA C. HANNIGAN Assistant United States Attorney Delaware Bar I.D. No. 2145 The Nemours Building
1007 Orange Street, Suite 700

P. O. Box 2046 'Wilmington,

DE 19899-2046

(302) s73-6277 LESLIE ALLEN Senior Attorney Environmental Enforcement Section Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044-7 611 (202) 5r4-4t14

Dated:May 9, 2008

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TABLE OF CONTENTS NATUREAND

STAGEOFTHEPROCEEDING

.......1 .......1
....2
.2

SUMMARYOFARGUMENT I. BACKGROLIND
A. The Effects of Storm
Water

Runoff

...

B. Brief StatutoryBackgroundandAllegedViolations
C.

........2 .........4
.. . .. . .5

SummaryofTermsofConsentDecree
1.

ComplianceProgram
a. Management Structure, Contractor Oversight,
Qualifications,

andTraining

....5 ......7

b.

ImprovedSWPPPs

c.

Sitelnspection,RemediationandOversight .........8 ........
10

d. ReportingandConsequencesforNon-Compliance

2.

The Civil

Penaltv

. . . 10

3. Covenant Not to Sue

. . . . 10

II.

ARGUMENT
A. StandardofReview
B.

......

11

........11 .......I2 ........12 Interest.
. . . . 13

ObjectivesoftheClean'WaterAct.
1. TheConsentDecreeisFair.

The Consent Decree is Fair, Reasonable, and Consistent with the

2.

The Decree is Reasonable and in the Public

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C. The Comment is Late,

AppropriatenessoftheDecree.

and in any Event, Does Not Alter the

......14 ......17

ru.

CONCLUSION.

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TABLE OF AUTHORITIES FEDERAL CASES
Citizens for
a

Better Env't v. Gorsuch, 7l8F.2d 1117 (D.C. Cir. 1983)

t2
13

City of New York v. Exxon Corrr.,697 F. Supp. 677 (S.D.N.Y. 1988)
Comerica Bank-Detroit v. Allen Industries. Inc.,769 F. Supp. 1408 (E.D. Mich, 1991) Gwaltnels of Smithfield. Ltd. v. Chesapeake Ba)¡ Foundatiorl 484 U.S. 49

t4
... .

(1987)

.17

In re Tutu Water Wells CERCLA Litieatiort 326F.3d201 (3rd Cir.
Officers for Justice v. Civil Service Comm'n. 688 F.2d 615 (9th Cir.

2003) 1982)

.ll,12
. . . . 16

(3dCir.

1990)

,91,3 F.2d 64

.....17
...

United States v. Akzo Coatines of America.Inc.,949F.2d1409 (6th Cir.

1991)

.

12,

13, 16

United States v. Atofina Chemicals.Inc., No. 01-7087,2002 V/L 1832825 (8.D. Pa. Aug.

2002)

5,

....16

United States v. Cannons Eng'e Coro., 899 F.2d79 (lst

Cir.1990)

...

ll,

12

United States v. Cannons Ens'e Com.,720 F. Supp. 1027 (D. Mass. 1989), affd, 899 F.2d79

(lstCir.

1990)

....11

United States v. Count)¡ of Muskeeoq 298 F.3d 569 (6th UnitedStatesv. HookerChem. andPlastics

Cir.2002)
.

. . . . . 11

Com.,776F.2d4I0(2d,Cir.1985)

.....

11

United States v. Jones & Lauehlin Steel Com., 804 F.2d348 (6'h Cir. United States v. Kev'West Towers.Inc.,720 F. Supp. 963 (S.D. Fla. United States v. Larkins. 657 F. S,rpp. 76 (V/.D. Ky. 1987) United States v. Montrose Chemical Com., 50 F.3d 741 (9th Cir. United States v. Oreeon,9l3F.2d576 (gth Cir. 1990)

1936) 1989)

. . 11, 16
...

.17
17

1995)

. . . . 11, t2
11

llr

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United States v. Roll Coater. Inc., No. IP 89-828,

1991)

2l

EnvLl. L. Rep. 21073 (S.D. Ind. Mar.22,

...r7

United States v. Smithfield Foods. Inc.,982 F. Supp. 373 (E.D. Ya.

1997)

. . . . 17

United States v. Southeastern Pennsvlvania Transp. Authoritv, 235F.3d 817 (3rd Cir. 2000) . 11

FEDERAL STATUTES
Clean'Water Act,33 U.S.C. $$ 1251 etSq,.(FederalWaterPollutionControlAct)

SectionlOl(a),33U.S.C. $ 1251(a) Section301,33u.S.C. $ 1311
Section 308, 33 U.S.C. $

....13

.........4
.

1318 1319(b)and(d) 1342 1342(p)

.3,4

Section309(b) and(d),33U.S.C. $ Section 402,33 U.S.C. ç

.......4
. . 2, 4

Section402,33 U.S.C. $
Miscellaneous Receipts Act

......13

31U.S.C. $ 3302(cXl)....

....r7

FEDERAL REGULATIONS

28C.F.R.$50.7
40 C.F.R. $r22.26(c), (b)(14(x), 40 c.F.R. ç

.....1

(bxls)
.

.....2
.. ..
. . ..2
....
1

t22.28 2008)

73 Fed. Reg. 11953-02 (Mar. 5,

iv

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EXHIBIT LIST
Exhibit Exhibit

A B C D

EPA, National

'Water

Quality Inventory: 2000 Report,page 13 Q002)

Federal Construction General Permit (as modified, effective Jan.21,2005) (Excerpts)

Exhibit Exhibit

Letter dated 4125108 to the Court from Troostwood Neighborhood Assoc. United States v. Atofina Chemicals. Inc., No. 01-70 87,2002WL 1832825 (8.D. Pa. Aug. 5,2002)

ExhibitE

United States v. Roll Coater. Inc., No. IP 89-828 21077-78 (S.D. Ind. Mar. 22,I99l)

C,zl

Envtl. L.Rep. 21073,

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NATURE AND STAGE OF THE PROCEEDING
On February 26,2008, the United States and State of Colorado filed a complaint against Defendant Home Depot USA, Inc. ("Home Depot") initiating this Clean Water Act case and, simultaneously, lodged a Consent Decree with the Court that, if entered, would entirely resolve

this matter. In accordance with 28 C.F.R. $ 50.7 and Paragraph 50 of the Decree, on March 5,
2008, the United States Department of Justice published notice of the lodging of the Decree in the Federal Reeister. 73 Fed. Reg. I 1953-02 (Mar. 5, 2008). The notice described the principal terms of the settlement and provided an opportunity to comment on the Decree. The United
States reserved the

right to withdraw or withhold consent for the Decree if the comments disclose

facts or considerations which indicate that the proposed judgment is inappropriate, improper or inadequate, Consent Decree
1T

50; 28 C.F.R. $ 50.7. The requisite time period for comments

elapsed, and no comments were received on the proposed settlement during the comment period.

However, one coÍrment from
and directly to the Court on

a

neighborhood association in Kansas City, MO, was sent belatedly
seeks $300,000 of the $1.3

April 25,2008. The comment

million

civil penalty for

use by the neighborhood association.

SUMMARY OF ARGUMENT
As shown below, notwithstanding the comment received, the settlement as negotiated and
presented to the Court ably meets the standard for

entry. It is fair, reasonable, consistent with the

Clean Water Act, in the public interest, and should be entered. Accordingly, the United States, on behalf of the United States Environmental Protection Agency, respectfully moves this Court

for entry of the proposed Consent Decree that was lodged with the Court in this action. All
parties, including Defendant Home Depot, assent to this motion.

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T.

BACKGROUND

A.

The Effects of Storm Water Runoff

The erosion and runoff that occur from construction sites can have significant impacts on the quality of our nation's waters. Sediment-laden runoff results in increased turbidity and
decreased oxygen in a stream, which in turn results in loss of in-stream habitat for fish and other

aquatic species. Such runoff can also

kill fish directly, destroy spawning beds,

and suffocate fish

eggs and bottom dwelling organisms. Moreover, this runoff can increase

difficulty in filtering

drinking water, resulting in higher treatment costs, and can result in the loss of drinking water
reservoir storage capacity and decrease the navigational capacity of waterways. See, e.g.,

National Water Quality Inventory: 2000 Report,page 13 (2002) (Exhibit A).

B.

Brief Statutory Background and Alleged Violations

Under the Clean'Water Act, discharges of storm water "associated with industrial

activily," including construction activity that disturbs at least one acre of land, require

a

permit

under the National Pollutant Discharge Elimination System ("NPDES"). See 33 U.S.C. $ 1342; 40 C.F.R. $122.26(c), (b)(la)(x), (bX15). Under general NPDES permits issued by EPA or authorized states, an owner or operator of a construction site ('þermittee") must obtain coverage

by submitting

a

notice to the appropriate agency and design a plan (known as the Storm Water

Pollution Prevention Plan, or "SWPPP") to control storm water runoff from the construction site.
40 C.F.R. ç 122.28. SWPPPs set forth a description of the site and the construction activity to occnr there, as well as provide a plan for minimizing and eliminating to the extent feasible
discharges of pollutants in storm water associated with those activities. See, e.g., Federal

Construction General Permit (as modified, effective Jan.21,2005) ("Federal CGP,"), Parts

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3.L3.2 and3.4.A.t The SV/PPP must meet specific requirements

and include certain

information. In addition, the permittee must install, maintain, and inspect erosion and sediment
controls known as Best Management Practices ("BMPs"), which comprise practices, equipment,
and measures to prevent the discharge of pollutants. BMPs

tlpically

are

low cost physical

measures such as silt fences around the perimeter of disturbed areas and straw bales over storm

drains and practices such as phasing of construction schedules to minimize the amount of time that the soil at the site will be unstable. The permittee must implement the SWPPP, properly
operate and maintain the BMPs, and improve the BMPs

if they

are not adequate. Federal CGP,

Parts 3.1.D and 3.6.4, 3.11.B. The permits irnpose additional requirements, including,inter alia: inspection of the site during construction, Federal CGP, Part 3.10; maintenance of the SWPPP
and sometimès other records at the site, Federal CGP,

Part3.I2; and final stabilization of the site

followed by termination of permit coverage, Federal CGP, Part 5.1.4.
As part of a national initiative to address construction storm water violations at major

construction sites, in2000-2003, EPA (or its contractor or the relevant state) performed 15
inspections at various Home Depot stores in 7 states around the country. EPA followed up with

information requests under Section 308 of the Act, 33 U.S.C. $ 1318, and obtained information
on additional Home Depot construction sites.

As alleged in the complaint, at four sites, Home Depot never applied for permit coverage
at all during the six month or more construction process.

At eight other sites, Home Depot

applied for permit coverage late

-

after construction had already begun. Through inspections

I Cited portions of the CGP are attached as Exhibit B. The entire CGP is available on EPA's
webs

ite at http

:

I

I

cþub. epa. gov/npdes / stormwater/cgp . cfrn.

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and/or responses to Section 308 information requests, EPA found apattem of failure to comply

with permit requirements, including, among others, failure to install and maintain storm water
controls (such as a vehicle track out pad, inlet protection, silt fencing to minimize off-site
sediment and erosion runoff); failure to properly design or implement BMPs; failure to prepare
an adequate SWPPP; failure to conduct inspections; and failure to conduct inspections accordance with the permit requirements.

in

Based on the gathered evidence, on February 26,2008, the United States filed a

complaint against Home Depot alleging violations of the construction storm water requirements of the Clean'Water Act, its regulations, and applicable permits at numerous Home Depot construction sites in numerous states across the country.2 Specifically, the complaint sought

injunctive relief and civil penalties pursuant to the Clean'Water Act, 33 U.S.C. $ 1319(b) and (d),
for the discharge of pollutants in storm water without
a

permit in violation of 33 U.S.C. $ 1311;

for failing to provide information to EPA

as needed

to carry out the objectives of the Clean

Water Act, including the NPDES permit program, in violation of 33 U.S.C. $ 1318; and for

violations of the conditions of permits issued pursuant to 33 U.S.C . ç 1342 for discharge of pollutants in storm water from construction sites in violation of 33 U.S.C. $ 1311. The State of
'Water Colorado joined the complaint and alleged similar violations of the Colorado Quality

Control Act, $$ 25-8-607 and -608, C.R.S.

C.

Summary of Terms of Consent Decree

The Consent Decree, lodged simultaneously with the Complaint, represents the

2 Home Depot neither admits nor
Decree,

denies the allegations in the

complaint.

Ss¿ Consent

p. 1, f

C.

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culmination of months of negotiations to resolve the allegations in the Complaint and resolves all
the matters pending in this case. The Consent Decree requires Home Depot to implement a comprehensive, corporate-wide program to prevent storm water pollution at each new store

it

builds nationwide for

a

period of five years.

1.

Compliance Program

As an initial matter, the Decree requires Home Depot to complywith the Clean'Water

Act and the general permits,

see, e.g., Consent Decree tlll 2, 8, 23.|f , but many of the injunctive

relief provisions of the Decree go well beyond the requirements of the applicable permits. There
are several components to the compliance program,

including:

a) management structure,

oversight of contractors, qualifications, and training; b) improved SWPPPs; c) site inspection, remediation, and internal oversight; and d) reporting and consequences for non-compliance.

a.

ManagementStructure.ContractorOversieht.Oualifications. and Trainine

The Decree ensures that Home Depot has general contractor personnel who have been

properly trained at each site and qualified personnel within Home Depot's management structure to oversee storm water compliance at all sites. First, Home Depot must appoint a Storm.Water Coordinator who, among other qualifications, must have at least five years of construction-related experience and be a trained "Storm'Water Professional."

tl4.

Home Depot's Storm'Water Coordinator is a Home Depot

employee of at least the Director level, oversees the work of Home Depot's other Storm'Water Managers, and is responsible for coordinating oversight of construction storm water compliance

3 Except as otherwise noted, all paragraph references (f) in this brief are to the Consent
Decree.

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by Home Depot and its general contractors at all sites. Home Depot's mid-level "Storm'Water

Managers" (Regional Directors of Construction and Construction Managers) and Project
Managers (who are assigned to oversee particular sites and are primarily responsible for storm

water compliance, including inspections, at their sites), must also be experienced Storm'Water Professionals. fl 5. Home Depot may use a qualified Storm W'ater Consultant to perform certain functions under the Decree, including inspections, and, generall¡ the Project Manager is
responsible for overseeing performance of these activities.

I 6.

The Decree also contains provisions to improve Home Depot's oversight of its general contractor and to improve contractor performance relative to storm water. To make sure that contractors bidding on construction projects are aware of the requirements they must meet, Home

Depot is required to ensure that all bidding parties have a copy of the Decree before the
submission of bids. T 7. In addition, as part of the construction contract for any site, Home Depot must obtain a written acknowledgment from the general contractor that it is aware of and

will comply with certain enumerated storm water requirements (including putting all BMPs in
place correctlyprior to commencement of construction, and inspecting the site to confirm this),

TI 15, 79, andmust certiff to Home Depot that these and certain other requirements

have been

met prior to commencement of construction. tf 20. Home Depot must also hold a conference

with the general contractor to review storm water requirements prior to the initiation of
construction. fl 21. App.

B. Further,

Home Depot must ensure that its Storm'Water Coordinator

contact information, the permit, the SWPPP, and appropriate guidance materials are aIl readily available on site. nn 2-14.

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Home Depot must also ensure that its contractors have qualified individuals at its Sites. Home Depot must require its general contractor to have a Compliance Officer assigned to each site, and both the Compliance Officer and Project Superintendent for the site must, among other things, be an experienced Storm Water Professional. fltf16-17. Further, the Project Superintendent must provide a pre-construction site-specific briefing to all of its employees and subcontractors involved in ground disturbing activities and their employees concerning the
SWPPP, the storm water compliance requirements for the site, and the consequences of non-

compliance. T 18. Subcontractors and their employees who are not involved in grounddisturbing activities (e.g., paint and stucco contractors) must still receive
a

briefing on certain

compliance issues, such as the basics of erosion control, and specific practices to which they should adhere to minimize pollutants leaving the site.

Id. In addition, the Project

Superintendent

must meet with its employees and subcontractors weekly to review the storm water requirements

of the permit, the SWPPP, and the Decree, and to address any problems that have arisen in implementing the SWPPP or maintaining BMPs. fl 22.

Finally, Home Depot developed
Storm Water Professionals. fl 28, App.

a storm water

haining program to certiff personnel

as

E. The required syllabus was developed with EPA

and is

attached to the Decree, and the training program conforms to the syllabus. Certification requires

passing a written test to determine proficiency with the principles, practices, and regulatory requirements of erosion and sediment control and other storm water requirements. To remain

certified, personnel must repeat the training and testing annually.

b.

Improved SWPPPs

The Decree contains requirements relating to SW?PPs, including that they be prepared by

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qualified personnel, that there be a site visit prior to developing the SWPPP, and a descriptive list

of elements that the S\ /PPP must include. fl 9. The Decree also has specific requirements and
time frames for updating SWPPPs. 'ï 11. Both of these elements are more descriptive than and
go beyond many permits.

c.

Site Inspection. Remediation and Oversieht

The Decree includes inspection, remediation, and reporting requirements that also go beyond many applicable permit requirements in an attempt to ensure that storm water problems
are promptly identifred and corrected, and that the Home Depot Storm'Water Coordinator and

other managers are kept apprised of compliance status to enable their prompt response to any problems. Home Depot must require its General Contractor's Project Superintendent to inspect the
site weekly and within 24 hours of

rain. 123.a. The Decree specifies inspection requirements

and includes a detailed inspection form, which must be filled out and certified. n23.b, App. C.

Home Depot must require its General Contractor to ensure that all "Action Items" (any action required to be taken to achieve or maintain compliance with storm water requirements) be remediated as soon as possible, and for BMP problems, before the next rain. Action Items and

their remediation must be noted on an Action Item Log. \23.c. Both the General Contractor Compliance Officer and the Home Depot Project Manager
or consultant ("Home Depot Inspector") must perform monthly oversight inspections so that, together, the oversight inspections happen approximately bi-weekly. 123.d,.e. These inspectors must perform their own inspections and also review the results of the prior inspections and

Action Item Log to ensure that inspections were performed and documented correctly and that all

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Action Items were timely and appropriately fixed. Id. If not, Home Depot must require the
General Contractor to fix any outstanding problems and document the actions taken. fl 23.d. The Compliance Officer and the Home Depot Inspector must also generally discuss any inadequacies

in

performance with the Project Superintendent. fl 23.d, .e. The Home Depot Inspector must

also document other "qualitative" findings on his or her inspection report, such as any changes

in

procedures that are deemed necessary to ensure compliance, any recurring deficiencies, etc., must
discuss these with the General Contractor, andrecord them for

followup. fl 23.e(I).

The Home Depot Inspector's first inspection must occur within one week

of

coÍrmencement of construction. During this inspection, the inspector must not only perform a

routine inspection, but must also confirm that all of the items that the General Contractor certified as having been performed prior to beginning instruction have in fact been appropriately
performed, including the proper installation of all necessary BMPs. fl 23.e(ii). Home Depot must also perform a final inspection of the site at the conclusion

of

construction to ensure that the site has been stabilizedin accordance with permit requirements,
and that all other requirements have been met for termination of permit coverage. n27.

The Decree requires Home Depot to collate the results of all the weekly and oversight inspections and Action Item Logs into a weekly compliance report for all Home Depot sites. This report is sent to the Storm Water Coordinator and all the Storm'Water Managers before

Friday of the week following the inspections. fl 23.g. This ensures that Home Depot
management, up to the Storm'Water Coordinator, who is at the Director level,

will be aware of

any site deficiencies and can work to achieve prompt compliance.

9

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d.

Reoorting and Consequences for Non-Cor4pliance

In order to allow EPA to oversee Home Depot's compliance with the Decree, Home
Depot must submit quarterly compliance reports, which must be reviewed and certified by the Storm Water Coordinator.

125. Among other things,

the report must

identit

any apparent

violations by Home Depot or its General Contractor, include a copy of any government
inspection reports or enforcement documents, and discuss any compliance problems and steps Home Depot plans to take to address them. Annually, the report must evaluate and report on the

training program.

In addition to the quarterly report, Home Depot must send EPA a monthly report of Sites
that are currently in existence.
11

3. This allows EPA to spot-check Home Depot's compliance

with the Decree and the permits.
The final group of requirements under the Decree consists of the consequences for failure to meet the requirements of the Decree. The Decree imposes stipulated penalties for the

violation of its requirements and imposes increased contractor oversight provisions for certain
non-compliance. Paragraph24provides that if a notice of violation or other state or federal
enforcement action is initiated for inspection or BMP-related violations at a site, or if Home Depot itself determines that a contractor has had three or more BMP or inspection-related

violations at a site, Home Depot has to perform an unannounced inspection at the site and submit aplan to EPA for increased inspection and oversight to bring the site into compliance.

2.

The Civil Penaltv

The Decree requires Home Depot to pay a civil penalty of $1.3 million, approximately $30,500 of which is to be paid to Colorado.

10

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3.

Covenant Not to Sue

In consideration of the civil penalty payment and the compliance program, the Plaintiffs
covenant not to sue for the violations alleged in the complaint through the date of lodging.

Finally, the Decree provides that stipulated penalties are not the Plaintiffs' exclusive remedies for
violations of the Decree, and that Plaintiffs reserve all rights to pursue Home Depot for any other violations except those specifically resolved by the Decree. nn 57,67.

II.

ARGUMENT

A.

Standard of Review

The approval of a consent decree is within the discretion of the district court. United
States

v. Cannons Ene's Com.,720 F. Supp. 1027,1035 (D. Mass. 1989), affd 899 F.2d 79 (lst
States v. Hooker Chem. and Plastics

Cir. 1990); United

Corp.,776F.2d4I0,4ll (2d Cir.

1985).

In this Circuit, as in others, a court must review the proposed consent judgment to determine
whether it represents a resolution that is "fair, reasonable, and consistent with . . . fthe statute's]

goals." In re Tutu Water V/ells CERCLA Litisation,326F.3d201,207 (3'd Cir. 20ß).4 The
last of these three requirements is sometimes phrased as a finding that the settlement is

"consistent with the public interest.

"

See

United States v. Countv of Muskeeon,298

F

.3d 569,

580-81 (6th Cir. 2002) (quoting United States v. Jones & Lauehlin Steel Corþ.,804F.2d348,

See also, e.g., United States v. Southeastern Penns)¡lvania Transo. Authority,235 F.3d 8I7 , 824 (3'd Cir. 2000) (court should approve proposed consent decree if it is fair, reasonable, and consistent with CERCLA's goals.); United States v. Montrose Chemical Com., 50 F.3d 741,74647 (gth Cir. 1995); United States v. Cannons Eng'e Com., 899 F.2d79,85 (lst Cir.1990) ("Reasonableness, fairness, and fidelity to the statute are, therefore, the horses which district judges must ride."); United States v. Oreeon,9I3F.2d 576, 580 (9th Cir. 1990) (district court approval of consent decree requires that decree be fundamentally fair, reasonable, and consistent

o

with applicable laws).
11

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351 (6th Cir.l986)) (district court must review proposed Clean Water Act consent decree to determine whether it represents a resolution that is fair, reasonable and consistent with the public interest).

Voluntary settlement of legal disputes is favored by the courts and is generally perceived
to be in the public interest.
,See

Citizens for a Better Env't v. Gorsuch,718F.2d

lll7,lL26

(D.C.

Cir. 1983). There is a strong presumption that the agencies are acting in the public's interest
when the Department of Justice negotiates a settlement on behalf of the EPA in the

environmental field, which requires special expertise. United States v. Akzo Coatines

of

America.Inc.,949F.2d1409,l426(6'hCir. 1991). Indeterminingwhetheraconsentjudgment
is fair, reasonable, and adequate to protect the public interest, the court must not rubberstamp the
agreement, but also must not substitute its own judgment for that of the parties to the decree. Id.

at 1435 (citations omitted); accord In re Tutu Water Wells CERCLA Litie ., 326 (3d Cir. 2003). B. of the Clean'Water Act.

F

.3d 201 , 207

1. The Consent

Decree is Fair.

First, the Consent Decree is the result of a fair negotiation process between Home Depot,
the United States, and Colorado. All parties were represented by experienced counsel at all
stages in the proceedings and discussed settlement proposals amongst each other voluntarily.

The Consent Decree was not built in a day, but rather was the result of significant good faith,

"arms length" negotiations, with concessions made on both sides of the table.5

'

at746 (deference given to "affected parties . . . represented by experienced lawyers [who] have hammered out an agreement at arm's length and advocate its
See, e.g., Montrose. 50 F.3d

t2

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2.

The Decree is Reasonable and in the Public Interest.

In this case, the analysis of whether the Decree is "reasonable" and whether it is
consistent with the Clean'Water Act's goals and in the public interest is very similar. The most

important criterion for the Court to consider in determining whether the Decree is "reasonable" is its "likely effectiveness as a vehicle for cleansing the fenvironment] . . .

." M,949F.2dat

1437. The express objective of the Clean Water Act is to restore and maintain the chemical,
physical, and biological integrity of the waters of the United States. 33 U.S.C. $ 1251(a). One of
the specific requirements implementing this objective is the control of pollutants in storm water.
33 U.S.C. $ 13a2(p).

As demonstrated above, the proposed Consent Decree is reasonable, comports with the
objectives of the Act and furthers the public interest by providing for a compliance program that

will improve the control of discharges of sediment from all of Home Depot's future construction
sites, thereby addressing an important factor in the degradation of the nation's waters. As discussed at length above, the Decree includes numerous specific requirements to achieve this

compliance at eachHome Depot site and company-wide, with significant consequences for noncompliance. Further, the Decree's site requirements apply to all sites for which a construction
contract is let after entry !l 1 (definition of "Site"), and some of the Decree's requirements, such
as designation of the Storm'Water Coordinator and training of Home Depot's managers run from

embodiment in a judicial decree"); Cannons, 899 F.2d aI87 (fac| decree negotiated at arm's length among experienced counsel, and that the agency operated in good faith supports finding of procedural fairness); Comerica Bank-Detroit v. Allen Industries. Inc.,769 F. Supp. 1408, l4I2 (E.D. Mich. l99l) (arms length bargaining among parties provides presumptive favor for a settlement); City of New York v. Exxon Corp. ,697 F. Supp. 677,692 (S.D.N.Y. 1988). See also Akzo,949 F.2d at 1435 (good faith efforts of the parties indicated by arms-length negotiation process).
13

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lodging of the Decree. fltf 4, 5(c). Moreover, the Consent Decree recognizes that Home Depot operates in all fifty states and
that rnany of those states have their own general permits. For example, the Consent Decree

provides an inspection and remediation program that applies nation-wide, but Home Depot
retains the obligation to ensure that in each state it is complying with the requirements of the State's particular program (id.flf|2,23(h)). Thus, for example, the Decree requires its general contractor to inspect at least weekly and within 24hours of rain, id. \23.a, with bi-weekly

oversight inspections by Home Depot or the General Contractor's Compliance Officer. If an
applicable permit is less stringent than this, the Decree's inspection regime would apply. In a

few states that have certain more stringent inspection requirements (".g., arequirement to inspect daily during rain events), these would apply. In other words, the Consent Decree establishes a

minimum storm water program for a nationwide company that will greatly facilitate compliance with the various requirements of the permits applicable to Home Depot construction sites in all

fifty

states.

Further, the Consent Decree comports with the Clean Water Act because it requires a

civil penalty appropriate to the violations, thereby deterring both this Defendant and other
individuals in the regulated community from future violations of storm water requirements.

Finally, the settlement is in the public interest because it represents

a

voluntary settlement of a

potentially complex legal action, thereby reducing the burden on the Courts and the litigants. C.

of the Decree.
The United States received no comments on the Decree during the public comment

T4

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period. On April 25,2008, the Troostwood Neighborhood Association ("TNA"), sent a letter
directly to the Court that did not challenge the entry of the Decree but asked the Court to give
$300,000 of the $1.3 million penalty6 that Home Depot is required to pay to the TNA for use on storm water reduction and other environmentally beneficial projects in the Kansas City, Missouri

neighborhood. See Exhibit C. First, this request is untimely and could be ignored on that ground

alone. More importantly though,

as discussed

below, this Court cannot modiff the parties'

agreement. It can only approve or reject the settlement negotiated by the parties, and the request by TNA for
a

portion of the civil penaltyprovides no basis to reject the settlement. As shown

above, the consent decree includes a comprehensive program to bring all Home Depot sites across the country into compliance

with storm water requirements and includes

a significant

civil

penalty, consistent with the goals of the Clean'Water Act's penaltyprovisions. The Consent Decree, as written, is fair, reasonable, in the public interest, and should be approved.

"Supplemental environmental projects" ("SEPs") can be a component of an appropriate
Clean Water Act settlement. A SEP is an environmentallybeneficial project that a defendant
agrees to undertake

in settlement of an enforcement action, but that the defendant is not

otherwise legally required to perform. See EPA Supplemental Environmental Projects Policy

(May 1, 1 998) ("SEP Policy''), 63 Fed. Reg. 24796, 24797 -98 (1998). In settlement, the United
States can,in determining the appropriate amount for which to settle a penalty claim, take into

consideration the fact that a defendant has agreed to perform or fund certain restoration or other environmental projects. However, the United States' decision to include a SEP in a settlement is

6 The Decree requires Home Depot to pay $I,269,531to $30,469 of the civil penalty to Colorado. f 31.
15

the United States and the remaining

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within the discretion of the United States, see, e.g., SEP Policy, 63 Fed. Reg. at 24797 (decision
to accept SEP is 'þurely within EPA's discretion"), subject of course, to the parties' ability to
negotiate an acceptable agreement. Here, the settlement entered into by the United States,

Colorado, and Home Depot does not include a SEP.
Even if this Court believes that the residents of the Troostwood Neighborhood would

benefit from monies for environmental projects (or that some other project might be environmentally beneficial), this Court does not have the power to modify this settlement. It may only accept or reject the terms to which the parties have agreed. Jones & Lauehlin Steel Corp.,
804 F.2d at 357; Akzo Coatines of America , 949
F

.2d at 1435; Officers for Justice v.

Civil

Service Comm'n, 688 F.2d 615,630 (9th Cir. 1982). Further the role of this Court is not to determine "whether the settlement is one which the Court itself might have fashioned, or considers ideal, but whether the proposed decree is fair, reasonable, and faithful to the objectives

of the governing statute"); see also Officers for Justice, 688 F.2d at 625,630. In United States v. Atofina Chemicals. Inc., No. 01-7087,2002 WL 1832825 (E.D. Pa.

Aug. 5, 2}}2)(attached hereto

as

Exhibit D), the district court was asked to enter

a consent decree

that did include SEPs, over citizen group objections that communitymembers had not been

included in the selection of the SEPs and that different SEPs would have been better. However,
the court acknowledged that:

it lacks the power to modify the consent decree by striking the SEP and leaving the rest of the agreement intact. Given the choice of rejecting or accepting the agreement as written, the public interest is served by entering the consent decree. Id. at*6. Here, similarly, the Court does not
have the power to change the settlement to require

Home Depot to perform a SEP in the Troostwood neighborhood or to require Home Depot to

I6

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fund TNA's activities, and the public interest would not be served by the Court's rejection of the
Decree and the concomitant delay in compliance and expenditure of resources for renegotiation

of the settlement or litisation.T

IIr.

CONCLUSION
In conclusion, the proposed Consent Decree,
as negotiated

by the parties and lodged with

this Court, ably meets the standards for its entry, and the United States respectfully moves this Court to enter it. Respectfully submitted,

RONALD J. TENPAS Assistant Attomey General Environment & Natural Resources Division

Nor does the Court have the authority to approve the Decree and subsequently divert civil penalty money from the Treasury to the TNA. First, of course, this would be impermissibly changing the terms of the settlement. Secondly, once civil penalties have been assessed by the court through judgment or entry of settlement, they must go to the Treasury because of the Miscellaneous Receipts Act, which requires that a "person having custody or possession of public money . . . shall deposit the money without delay in the Treasury . . . ." 31 U.S.C. $ 3302(cX1). See, e.g., Gwaltne)¡ of Smithfield. Ltd. v. Chesapeake Bav Foundation, 484 U.S. 49, 53 (1987) (in citizen suit, court may "impose civil penalties payable to the United States Treasury. "); Public Interest Research Group of New Jersey v. Powell Duffryn Terminals. Inc ., 913 F.2d 64, 81-82 (3d Cir. 1990) (Congress intended that any penalties assessed in a citizen suit be treated as "miscellaneous receipts;" appropriate to pay the penalties into the Treasury because the citizens were acting as private attorneys general, standing in the stead of the United States . ) ; United States v. Smithfield Foods. Inc . , 982 F . Supp. 373,376 (E.D. Ya. 1997) ("[I]t is not the court's role to legislate, but rather to enforce the law Congress has passed. . . . [O]nce a penalty has been assessed by the court, the penalty must be paid into the Treasury."); United States v. Roll Coater. Inc., No. IP 89-828 C,2I Envtl. L. Rep. 21073,21077-78 (S.D. Ind. Mar. 22, 1991)("lo]nce labeled as a civil penalty, the money must be paid to the Treasury. ") (attached hereto as Exhibit E). But see United States v. Ke)¡ West Towers. Inc.,720 F. Supp. 963 (S.D. Fla. 1989); United States v. Larkins, 657 F. Supp. 76, 87 (W.D. Ky. 1987) (entering decrees over the objection of the United States and without addressing the Miscellaneous Receipts Act).
17

t

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s/Leslie Allen Leslie Allen Senior Attorney Environmental Enforcement Section Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044-7 (202) sr4-41r4 leslie.allen@usdoj. eov

6ll

COLM F. CONNOLLY United States Attomev

By:

/s/Patricia C. Hanniean Patricia C. Hannigan Assistant United States Attorney Delaware Bar I.D. No. 2145 The Nemours Building 1007 Orange Street, Suite 700 P.O. Box 2046 Wilmington, DE 19899-2046 (302) s73-6277 patricia.hanni ean@usdoj qov
.

OF COUNSEL:

KELLY BRANTNER Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.'W

MC 2243[Room 31204 V/ashington, DC 20460
202-s64-9933

18

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National Water Quality lnventory
2000 Report

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Rivers

ChapterTwo

and Streams 13

310lo of the impaired river and stream miles). Siltation alters aquatic habitat, suffocates fish eggs and bottom-dwelling organisms, and can interfere with drinking water treatment processes and recreational use of a river (see Figure 2-6). Sources of siltation include agriculture, urban runof{, construction, and forestry.

miles and

Alteration to river and stream habitats was reported by the states and tribes to cause impairment to 58,807 miles (80/o of the assessed river and stream miles and 22o/o of the impaired river and stream miles). In this case, only habitat alterations that do not affect water flow are considered because states and tribes reoort stream flow alterations (such ,. ãurn,

and irrigation) under a different category. Habitat alterations that do not direcdy affect sffeam flow, such as the removal of woody debris or stream bottom cobblestones, can adversely affect aquatic organisms whose health and abundance depend on specific physical and environmental conditions. (For example, small organisms such as young fish use submerged logs to gain protection from predators.) Habitat modifications result from human activities such as flow regulation, logging, and land-clearing
practices.

Figure 2-4

Leading POLLUTANTS in lmpaired Rivers and Streams
Total Rivers and Streams
3,692,830 miles
ASSESSED Rivers and Streams

699,946 miles*

39o/o

IMPAIRED

269,258
miles

In addition to siltation, bacteria, and nonflow habitat alterations, the states and tribes also reported oxygen-depleting substances, nutrients, thermal modifications, metals, and flow alterations as leading stressors. Often, several pollutants and stressors adversely affect a single river segment. For this reason, the river and stream miles impaired by each pollutant or stressor do not add up to 10070 in Figure 2-4.

Pol

lutants/Stressors
Percent of IMPAIRED River Miles

Miles

Sources

10
Pathogens (Bacteria)
Silt¿t¡on

20

30

40

50 93,431 84,503 58,807 55,398 52,870 44,962 41,400

of Pollutants lmpacting Rivers

and Streams
A total of55 tribes and states reported sources of pollution related to human activities that impact some of their rivers and streams (see Appendix A, Table A-5, for individual state and tribal information). The most commonly reported sources include agriculture, hydrologic modifications, and habitat modifications. Agriculture is listed as a source of pollution for 728,859 river and stream miles (180/o of assessed river and stream miles, 48%o of impaired river and stream miles) (Figure 2-5). For the 30 states and tribes that reoorted the number of river and stieam miles affected by specific types of agricultural activities, the most common types are: nonirrigated crop production (degrades 26,830 miles), animal feeding operations (degrades

Habitat Alterations oxygen-Deplet¡ng Substances Nutrients Thermal ModificatÌons Metals Flow Alterations

I -

25,355

States assessed 79o/o of the total miles of rivers and streams for the 2000 report. The larger pie cha¡t on the left illustrates this proportion. The smaller pie chart on the right shows that, for the subset of assessed waters, 670/o are rated as good aod 39o/o as impaired. When states identify waters that are impaired, they describe the pollutants or processes causing or contributing to the impairment. The bar chart presents the leading causes and the number of river and stream miles impacted. The percent scales on the upper. and lower x-axes of the bar chart provide different perspectives on the magnitude of the impact of these pollutants. The lower axis compares the miles impacted by the pollutant to the total ASSESSED miles. The upper axis compares the miles impacted by the pollutant to the total IMPAIRED miles.
Based on data contained in Appendix A, Table A-4.

*Includes miles assessed as not attainable.

Note:

Percentages do not add up to 100% because more than one pollutant or source may impair a river segment.

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NPDES Genera! Permit for Storm Water Discharges From Gonstruction Activities
Table of Gontents

As modified effective January 21,2005
1

PART 1: COVERAGE UNDER THIS PERMIT................
1.1

1.2 1.3 1.4

Waivers for Certain Small Construction

Activities...,.......,.,..

........................... 5

PART 2: AUTHORIZATION FOR DISCHARGES OF STORM WATER FROM CONSTRUCTION ACTIVITY......5
2.1

Authorization to Discharge

2.2 2.3 2.4

Date............ Notice of lntent Contents.,.... Submission Deadlines....

..........,...... 5 .......,...... 5

.......,............6

PART 3: sToRM WATER POLLUTION PREVENTTON PLANS
3,1

3,2
3.3 3.4 3.5 3.6 3.7 3.8

3.9
3.'10

(SWPPPS).. Storm Water Pollution Prevention Plan Framework.................. Requirements for Ditferent Types of Operators Pollution Prevention Plan Contents: Site and Activity Description., Pollution Prevention Plan Contents: Controls to Reduce Pollutants..... Non-Storm Water Discharge Mana9ement............... Maintenance of Controls Documentation of Permit Eligibility Related to Endangered Species Copy of Permit Requirements,...............,. Applicable State, Tribal, or LocalPrograms...,
Maintaining an Updated Signature, Plan Review and Making Plans

................7 ...................... 7

...........,....,........7
................

I ...... ... I I

...,........,..., 9 .................... ........... 10 ............ 10 ....,..................... 10 .................. 11 .................,.. 12
12

3.11

3.12 3.13 3.14

P1an............. Availab|e.......,....... Loads

Management Practices Documentation of Permit Eligibility Related to Total Maximum Daily

............. .,..... 13

PART 4: SPECIAL CONDITIONS, MANAGEMENT PRACTICES AND OTHER NON-NUMERIC
13
4.1

4.2 4.3 4.4 4.5

Continuation of the Expired General Requiring an lndividual Permit or an Alternative General Releases in Excess of Reportable

Permit

........ 13

Permit

.................. 14

Quantities.

.....14

AttainmentofWaterQualityStandardsAfterAuthorization'.....'.'.

PART 5: TERMINATION OF
5.1

COVEHAGE

.........15 ........................ 15 ...... 16

5.2 5.3

Termination..,............,.. Where to Submit.....
Submitting a Notice of

PABT

6:

RETENTION OF RECORDS..................

Small and Larye Conslruction Aclivities

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PARTT: REOPENER GLAUSE

16
16

7.1 7.2 7.3
PART PART

Procedures for Modifìcation or Revocation............ Water Quality Protection Timing of Permit Modification.

16
16

8:

STANDARD PERMIT CONDITIONS
CONDITIONS APPLICABLE TO SPECIFIC STATES, INDIAN COUNTRY, OR

16

9: PEHMIT

16

APPENDICES
Appendix B - Permit Areas Eligible for Covera9e.........,,...., Appendix C - Endangered Species Act Review Procedures.. Appendix D - SmallConstruction Waivers and lnstructions................. Appendix E - Notice of lntent Form and lnstructions.. Appendix F - Notice of Termination Form and lnstructions.,............ Appendix G - Standard Permit Conditions
.....,................ B-1

...................C-1
.....D-1 ......... E-1 ......... F-1 ..... G-1

Smsll and Large

ConslructíonActivilies

¡¡

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General Pe¡mit

D.

Late Notificafions; Operators are not prohibited from submitting NOls after initiating clearing, grading, excavation activities, or other construction activities. When a late NOI is submitted, authorization for discharges occurs consistent with Subpart 2.1.The Agency reserves the right to take enforcement action for any unpermitted discharges that occur between the commencement of construction and discharge authorization.

2.4
A,

Where to Submit

Except as noted in Subpart 2.3.8, you must send your complete and accurate NOI to EPA at one of the

following addresses:
For Reqular U,S. Mail EPA Storm Water Notice Processing

Delivery:

MailCode

U.S, 1200 PennsylvaniaAvenue, Washington, DC

4203M EPA NW 20460

Center

For OvernighUExpress Mail Deliverv: EPA Storm Water Notice Processing Center

Room 7420 U,S. EPA 1201 Constitution Avenue, NW Washington, DC 20004

B.

ln lieu of Subpart 2.4.4, when available, you may submit your NOI using EPA's electronic NOI system (i.e.,
eN O
I

) as detailed at www. epa. oov/n pdes/stormwater/cop.

PART 3: STORM WATER POLLUTION PREVENTION PLANS (SWPPPS)

3.1
A.
B.

Storm Water Pollution Prevention Plan Framework

A SWPPP must be prepared prior to submission of an NOI as required in Part 2. At least one SWPPP must be developed for each construction project covered by this permit and such SWPPP must be prepared in
accordance with good engineering practices.

The SWPPP must:

1.

ldentify all potential sources of pollution which may reasonably be expected to affect the quality of storm water discharges from the construction site; Describe practices to be used to reduce pollutants in storm water discharges from the construction site; and

2.
3.
C.

Assure compliance with the terms and conditions of this permit.

Once a definable area has been finally stabilized, you may mark this on your SWPPP and no further SWPPP or inspection requirements apply to that portion of the site (e,9., earth-disturbing activities around one of three buildings in a complex are done and the area is finally stabilized, one mile of a roadway or pipeline project is done and finally stabilized, etc).

D.

You must implement the SWPPP as written from commencement of constructíon activity until final
stabilization is complete.

3.2
A.

Requirements for Different Types of Operators

You may meet one or both of the operational control components in the definition of operator found in Appendix A. Subpart 3.2.C applies to all permittees having control over only a portion of a construction síte.
lf you have operational control over construction plans and specifications, you must ensure that:

1.

The project specifications meet the minimum requirements of this Subpart and all other applicable permit
conditions; The S\tVPPP indicates the areas of the project where the operator has operational control over project specifications, including the ability to make modifications in specifications;

2.
3.

All other permittees implementing portions of the SWPPP (or their own SWPPP) who may be impacted by a change to the construction plan are notified of such changes in a timely manner; and
The SWPPP indicates the name of the party(ies) with day-to-day operational control of those activitíes necessary to ensure compliance with the SWPPP or other permit conditions.

4.

SmøIl and Large Constuction Activities

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Generøl Permit

B.

lf you have operational control over dayto-day activities, you must ensure that;

'1.

The SWPPP meets the minimum requirements of this Subpart and identÍfies the parties responsible for implementation of control measures identified in the plan; The SWPPP indic¿tes areas of the project where you have operational control over day{o-day activities; The SWPPP indicates the name of the party(ies) with operational control over project specifications (including the ability to make modifications in specifications).

2. 3.

C. lf you have operational

control over only a portion of a larger project (e.9., one of four homebuilders in a subdivision), you are responsible for compliance with all applicable terms and conditions of this permit as it relates to your activities on your portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation of best management practices (BMPs) and other controls required by the SWPPP, You must ensure either directly or through coordination with other permittees, that your activities do not render another party's pollution control ineffective. You must either implement your poriion of a common SWPPP or develop and implement your own SWPPP. For more effective coordination of BMPs and opportunities for cost sharing, a cooperative effort by the

different operators at a site to prepare and participate in a comprehensive SWPPP is encouraged. lndividual operators at a site may, but are not required to, develop separate SWPPPS that cover only their portion of the project provided reference is made to other operators at the site. ln instances where there is more than one
SWPPP for a site, cooperation between the permittees is encouraged to ensure the storm water discharge

controls and other measures are consistent with one another (e.9., provisions to protect listed species and critical habitat).

3.3
B.

Pollution Prevention Plan Gontents: Site and Activity Description
each operator

A. The SWPPP must identif,T all operators for the project site, and the areas of the site over which
has control. The SWPPP must describe the nature of the construction activiþ, including:

1.

The function of the project (e.9., low density residential, shopping mall, highway, etc.);

2. 3, 4.
C.

The intended sequence and timing of activities that disturb soils at the site;
Estimates of the total area expected to be disturbed by excavation, grading, or other construction activíties, including dedicated off-site borrow and fill areas; and A general location map (e.9., USGS quadrangle map, a portion of a city or county map, or other map) with enough detail to identify the location of the construction site and waters of the Uníted States within one mile of the site.

The SWPPP must contain a legible site map, showing the entire site, identifying:

1. Direction(s) of storm water flow and approximate slopes anticipated after major grading activities; 2. Areas of soil disturbance and areas that will not be disturbed; 3. Locations of major structural and nonstructural BMPs identified in the SWPPP; 4. Locations where stabilization practices are expected to occur; 5. Locations of otf-site material, waste, borrow or equipment storage areas; 6. Locations of all waters of the United States (including wetlands); 7. Locations where storm water discharges to a surface water; and 8. Areas where final stabilization has been accomplished and no further construction-phase permit
requirements apply.

D.

The SWPPP must describe and identify the location and description of any storm water discharge associated with industrial activig other than construction at the site. This includes storm water discharges from dedicated asphalt plants and dedicated concrete plants, that are covered by this permit.

Small snd Large Construction Activities

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Gene¡sl Permit

3.4
A.

Pollution Prevention Plan Gontents: Gontrols to Reduce Pollutants

The SWPPP must include a description of all pollution control measures (i.e., BMPs) that will be implemented as part of the construction activity to control pollutants in storm water discharges. For each major activity identified in the project description the SWPPP must clearly describe appropriate control measures, the general sequence during the construction process in which the measures will be implemented, and which operator is responsible for the control measure's implementation. The SWPPP must include a description of interim and permanent stabilization practices for the site, including a schedule of when the practices will be implemented. Site plans should ensure that existing vegetation is preserved where possible and that disturbed portions of the site are stabilized. Use of impervious surfaces for stabilizati'on should be avoided. The following records must be maintained as part of the SWPPP:

B.

C,

1. 2. 3.
D.

Dates when major grading activities occur; Dates when construction activities temporarily or permanently cease on a portion of the site; and Dates when stabilization measures are initiated.

The SWPPP must include a description of structural practices to divert flows from exposed soils, retain/detain flows or otherwise limit runoff and the discharge of pollutants from exposed areas of the site. Placement of structural practices in floodplains must be avoided to the degree practicable of all post-construction storm water management measures that will be installed during the construction process to control pollutants in storm water discharges after construction operations have been completed. Structural measures should be placed on upland soils to the degree practicable. Such measures must be designed and installed in compliance with applicable federal, local, state or tribal requirements.

E. The SWPPP must include a description

F.
G. H.

The S\ /PPP must describe measures to prevent the discharge of solid materials, including building materials, to waters of the United States, except as authorized by a permit issued under section 404 ol the CWA. The SWPPP must describe measures to minimize, to the extent practicable, off-site vehicle tracking of sediments onto paved surfaces and the generation of dust. The S\trPPP must include a description of construction and waste materials expected to be stored on-site with updates as appropriate. The SWPPP must also incJude a description of controls, including storage practices, to minimize exposure of the materials to storm water, and spill prevention and response practices. The SWPPP must include a description of pollutant sources from areas other than construction (including storm water discharges from dedicated asphalt plants and dedicated concrete plants), and a description of controls and measures that will be implemented at those sites to minimize pollutant discharges.

l.

3.5

Non-Storm Water Discharge

Management

:

The SWPPP must identify all allowable sources of non-storm water discharges listed in Subpart 1.3.8 of this permit, except for flows from fire fighting activities, that are combined with storm water discharges associated with construction activity at the site. Non-storm water discharges should be eliminated or reduced to the extent
feasible. The SWPPP must identiflr and ensure the implementation of appropriate pollution prevention measures for the non-storm water component(s) of the discharge.

3.6
A.

Maintenance of Gontrols

All erosion and sediment control measures and other protective measures identified in the SWPPP must be maintained in effective operating condition. lf site inspections required by Subpart 3.10 identify BMPs that not operating effectively, maintenance must be performed as soon as possible and before the next storm event whenever practicable to maintain the continued effectiveness of storm water controls.

are

i

B.

lf existing BMPs need to be modified or if additional BMPs are necessary for any reason, implementation must be completed before the next storm event whenever practicable. lf implementation before the next storm event is impracticable, the situation must be documented in the SWPPP and alternative BMPs must be implemented as soon as possible.

C.

Sediment from sediment traps or sedimentation ponds must be removed when design capacity has been reduced by 50 percent.

Small und Large Construction

Activilies

I

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Genersl Permil

3.7

Documentation of Permit Eligibility Related to Endangered Species

The SWPPP must include documentation supporting a determination of permit eligibility with regard to
Endangered Species, including:

A. lnformation
B. \Mether
C. D.

on whether federallyJisted endangered or threatened species, or federally-designated critical habitat may be in the project area;

such species or critical habitat may be adversely affected by storm water díscharges or storm water discharge-related activities from the project; Results of the Appendix C listed species and critical habitat screening determinations; Confirmation of delivery of NOI to EPA or to EPA's electronic NOI system. This may include an overnight, express or registered mail receipt acknowledgment; or electronic acknowledgment from EPA's electronic NOI system, for any stage of project planning between the U.S, Fish and Wildlife Service (FWS), EPA, the U.S. National Marine Fisheries Service (NMFS), or others and you regarding listed species and critical habitat, including any notification that delays your authorization to discharge under this permit;

E. Any correspondence F.

A description of measures necessary to protect federally-listed endangered or threatened species, or federally4esignated critical habitat. The permittee must describe and implement such measures to maintain eligibility for coverage under this permit.

3.8

Gopy of Permit Requirements

Copies of this permit and of the signed and certified NOI form that was submitted to EPA must be included in the SWPPP. Also, upon receipt, a copy of the letter from the EPA Storm Water Notice Processing Genter notifying you of their receipt of your administratively complete NOI must also be included as a component of the SWPPP.

3.9

Applicable State, Tribal, or Local Programs

The SWPPP must be consistent with all applicable federal, state, tribal, or local requirements for soil and erosion control and storm water management, including updates to the SWPPP as necessary to reflect any revisions to
applicable federal, state, tribal, or local requirements for soil and erosion control.

3.10 lnspections A, lnspections must be conducted
1. 2.

ín accordance with one of the two schedules listed below. You must specify in your SWPPP which schedule you will be following.

At least once every 7 calendar days, OR At least once every 14 calendar days and within 24 hours of the end of a storm event of 0.5 inches or
greater.

B

lnspection frequency may be reduced to at least once every month if:

1.

The entire site is temporarily stabilized,

2. Runoff is unlikely due to winter conditions (e.9., site is covered with snow, ice, or the ground is frozen), or 3. Construction is occurring during seasonalarid periods in arid areas and semi-arid areas.
C.
A waiver of the inspection requirements is available until one month before thawing conditions are expected to result in a discharge if all of the following requirements are met:

1.

The project is located in an area where frozen conditions are anticipated to continue for extended periods of time (i.e., more than one month);

2. Land disturbance activities have been suspended; and 3. The beginning and ending dates of the waiver period are documented
D. lnspections

in the SWPPP.

must'be conducted by qualified personnel (provided by the operator or cooperatively by multiple "Qualified personnel" means a person knowledgeable in the principles and practice of erosion and operators). sediment controls who possesses the skills to assess conditions at the construction site that could impact

Case 1:08-cv-00115-SLR

Document 9-3

Filed 05/09/2008

Page 8 of 10
Generøl Permit

storm water quallty and to assess the effectiveness of any sed¡ment and erosion control measures selected to control the quality of storm water discharges from the construction activity,

E.

lnspections must include all areas of the site disturbed by construction activity and areas used for storage of
materials that are exposed to precipitation. lnspectors must look for evidence of, or the potential for, pollutants entering the storm water conveyance system. Sedimentation and erosion control measures identifed in the SWPPP must be observed to ensure proper operation. Discharge locations must be inspected to ascertain whether erosion control measures are effective in preventing significant impacts to waters of the United States, where accessible, Where discharge locations are inaccessible, nearby downstream locations must be inspected to the extent that such inspections are practicable. Locations where vehicles enter or exit the site must be inspected for evidence of off-site sediment tracking.

F.

Utility line installation, pipeline construction, and other examples of long, narrow, linear construction activities may limit the access of inspection personnel to the areas described in Subpart 3.10.E above. lnspection of these areas could require that vehicles compromise temporarily or even permanently stabilized areas, cause additíonal disturbance of soils, and increase the potential for erosion. ln these circumstances, controls must be inspected on the same frequencies as other construction projects, but representative inspections may be performed, For representative inspections, personnel must inspect controls along the construction site for 0,25 mile above and below each access point where a roadway, undisturbed right-of-way, or other similar feature intersects the construction site and allows access to the areas described above. The conditions of the controfs along each inspected 0.25 mile segment may be considered as representative of the condition of controls along that reach extending from the end of the 0.25 mile segment to either the end of the next 0.25 mile inspected segment, or to the end of the project, whichever occurs first.
For each inspection required above, you must complete an inspection report. At a minimum, the inspection report must include:

G.

1. The inspection date; 2. Names, titles, and qualifications of personnel making the inspection; 3. Weather information for the period since the last inspection (or since commencement of construction

activity if the first inspection) including a best estimate of the beginning of each storm event, duration of each storm event, ap