Determining what each entity involved in a construction project is responsible for, is key to successfully maintaining compliance with the Texas Commission on Environmental Quality (TCEQ) Construction General Permit. The TCEQ defines 2 types of operators with responsibility for ensuring compliance with the Construction General Permit – primary operators and secondary operators. Primary operators are defined as the entity with day to day operational control of the construction site, typically the general contractor. Secondary operators are defined as the entity whose operational control is limited to the employment of other operators or the ability to approve or disapprove changes to plans and specifications, typically the property owner/developer. When there are no other operators at the construction site, the secondary operator becomes the primary operator and must comply with the permit requirements for primary operators. It is possible to have multiple primary and secondary operators for one site.
Both primary and secondary operators are responsible for ensuring the project specifications allow for or provide that adequate Best Management Practices (BMPs) are developed to meet the requirements of the Texas Construction General Permit, including development of a Storm Water Pollution Prevention Plan (SWPPP) when required. In addition, both operators are responsible for ensuring that the SWPPP indicates the areas of the project where they have control over project specifications in the event the project has multiple operators, and that any other operators that may be affected by modifications in project specifications are notified, in a timely manner, of such modifications so that they may modify their BMPs as necessary to maintain compliance. It is also the responsibility of both operators to ensure that the SWPPP clearly indicates the type of operator, name of each operator entity and the site-specific TPDES authorization numbers for each primary operator. In the instance where there are more than one primary operators, it is important to provide a clear indication of what areas or portions of the site each operator has operational control over.
For large construction sites (greater than 5 acres of disturbed area), or small construction sites that are considered part of a larger common plan of development that is larger than 5 acres, primary operators are required to submit a notice of intent electronically to the TCEQ along with the associated permit fee using the TCEQ’s STEERs database, and to post a large construction site notice at the site. Secondary operators are not required to submit a notice of intent or pay the permit fee, but they are required to post a secondary operator construction site notice. Both operators are required to make notification to the Municipal Separate Storm Sewer System (MS4) for the site. Copies of all above documents need to be provided in the on-site SWPPP binder as well.
For small construction sites (less than 5 acres of disturbed area), that are not considered part of a larger common plan of development that is larger than 5 acres, both primary and secondary operators need to sign and post a small construction site notice. All site notices need to be signed by a company officer as defined in the TCEQ General Permit. MS4 notification is required of small sites as well, and be retained in the on-site SWPPP binder.
Postings are required to be posted at the construction site in a location that is readily available for viewing by the general public, local, state, and federal authorities. Postings are required to be in place prior to commencing construction and remain in place until completion of the construction activity.
Both operators are prohibited from submitting NOIs or posting notices late. The TCEQ reserves the right to take appropriate enforcement action for any unpermitted activities that may have occurred between construction commencement and when authorization was obtained.
It is important for both operators to remember that the SWPPP is a living document and needs to be regularly updated as site conditions change and with changes in BMPs. Revisions need to be made within 7 days of these events occurring. In addition, inspections of BMPs need to be conducted to be sure they are installed correctly and functioning properly. It is the responsibility of the permittee to maintain BMPs effectively to prevent the migration of sediment and other pollutants off site. It is the responsibility of both operators to ensure SWPPP compliance is achieved on any construction site.
For assistance with any of the above, or for questions regarding which definition best fits your situation, please feel free to contact us.