Gregg DeLong, Southwest Area Manager for PolyJohn, took note of the fact that one of his PRO customers recently purchased a few thousand containment trays. The end users were construction companies. They insisted that every portable toilet on their construction sites have the trays as secondary containment for possible spills or leaks. Other portable sanitation companies were stocking up on containment trays as well.
What happened – did the Environmental Protection Agency (EPA) suddenly make a new rule? Does every portable toilet now require a containment tray? Or, is this a situation that only applies to certain states?
Don’t worry. The answers are no, no and no. (We’ll explain a little further in this article.)
Portable sanitation operators are on the front line of environmental stewardship. While portable toilets have made outdoor sanitation a healthier, more comfortable personal experience, they also play a role in preventing pollution – specifically, water pollution – by keeping pollutants from getting into the ground where they can find their way into our water.
Officially, the main federal law in the United States to control water pollution is the Clean Water Act (CWA).
Let’s review where and how portable sanitation fits into the enactment of this important legislation.
According to the Environmental Protection Agency, the Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for waters.
The Clean Water Act had its beginning in 1948 with the enactment of the Federal Water Pollution Control Act. In 1972, the act was expanded, and it became known as the “Clean Water Act.”
The CWA made it unlawful to discharge any pollutant from a “point source” into navigable waters unless a permit was obtained. Point source pollution is defined as “any single identifiable source of pollution from which pollutants are discharged.”
The National Pollutant Discharge Elimination System (NPDES) is a provision of the Clean Water Act that prohibits the discharge of pollutants into waters of the U.S. The NPDES permit program controls discharges.
There are many NPDES program areas, such as animal feeding operations and pesticide permitting, but the one program that involves portable sanitation most closely is stormwater discharges from construction activities. The NPDES Stormwater program requires permits for discharges from construction activities that disturb one or more acres and from smaller sites that are part of a larger common plan. Either the state or EPA administers the permit (mostly states).
Stormwater discharges from construction activities are important to monitor because they can be a major source of pollution in waterways. When it rains, stormwater washes over the loose soil on a construction site, as well as materials and products stored outside. The stormwater can pick up pollutants like sediment, debris and chemicals, and carry them to storm sewer systems or directly into rivers, lakes or coastal waters.
The EPA works with construction site operators to make sure they have the proper stormwater controls in place so that construction can proceed while protecting the clean water and environment of the community.
The NPDES permit is given when the operators of construction sites show that they will implement stormwater controls that will minimize the amount of sediment and other pollutants from being discharged in stormwater runoff. The operators demonstrate how they will do so by submitting a Stormwater Pollution Prevention Plan (SWPPP or SWP3).
According to the EPA, an SWPPP “describes all the construction site operator’s activities to prevent stormwater contamination, control sedimentation and erosion, and comply with the requirements of the Clean Water Act. Failure to implement an SWPPP could result in significant fines from the EPA or a state environmental agency.”
The Stormwater Pollution Prevention Plan is where portable sanitation becomes involved.
The EPA provides a guide to SWPPPs titled “Developing Your Stormwater Pollution Prevention Plan: A Guide for Construction Sites by the EPA.” The guide directly addresses portable sanitation in chapter five: “SWPPP Development—Selecting Good Housekeeping BMPs.”
Portable sanitation on construction sites is a Best Management Practice, or BMP. The EPA refers to these BMPs as “good housekeeping.” The EPA notes, “many state construction general permits require that the SWPPP describe good housekeeping measures for other pollutants [not just sediment] that might be found on construction sites.”
The guide goes on to describe six key pollution prevention principles for good housekeeping. The very first one is, “Provide for waste management.” Here’s what the section says about portable restrooms:
“Provide convenient, well-maintained, and properly located toilet facilities. Provide for regular inspections, service, and disposal. Locate toilet facilities away from storm drain inlets and waterways to prevent accidental spills and contamination of stormwater. Treat or dispose of sanitary and septic waste in accordance with state or local regulations.”
Following these instructions is a Waste Management checklist for sanitary and septic waste:
✓ Provide restroom facilities on-site
✓ Maintain clean restroom facilities and empty porta-johns regularly
✓ Provide secondary containment pans under porta-johns, where possible
✓ Provide tie-downs or stake downs for porta-johns in areas of high winds
✓ Educate employees, subcontractors, and suppliers on locations of facilities
✓ Do not discharge or bury wastewater at the construction site
✓ Inspect facilities for leaks, repair or replace immediately
You’ll notice that there are mentions of secondary containment pans, tie-downs and stake downs in the checklist. Does this mean that you will now have to start providing these services at every construction site? No, it does not. The important point to remember is that these instructions are recommendations, not hard and fast rules that must be followed to the letter.
The guidebook explains, “[This document] does not impose legally-binding requirements on EPA, States, or the regulated community, and may not apply to a particular situation based upon the circumstances. EPA and State decisionmakers retain the discretion to adopt approaches on a case-by-case basis that differ from this guidance where appropriate.”
In actual practice, when contractors are creating their SWPPP and considering how to factor in portable sanitation, they must follow the guidelines of their state’s NPDES permitting process.
You may be able to serve your construction customers better by becoming familiar with your state’s NPDES permitting process as it applies to portable sanitation. This is where all the information and requirements are!
Construction Industry Compliance Assistance provides a Construction Stormwater Resource Locator at http://www.envcap.org/srl/resourcelocator.php?id=15 that gives information on the SWPPP requirements for each individual state. Just click on the state or states, then click on “Construction Stormwater Information.”
You will find that, for the most part, portable sanitation is treated briefly and in general terms.
In one example, the Delaware Erosion & Sediment Control Handbook is an enormous 738 pages long, but portable sanitation is barely mentioned. Under “Miscellaneous Wastes” is the following reference:
“Miscellaneous wastes include wash from concrete mixers; solid wastes resulting from the clearing and grubbing of vegetation; wood and paper materials derived from packaging of building products; food containers such as paper, aluminum, and steel beverage cans; and sanitary wastes. In addition to erosion and sediment controls, the plan must address the other potential pollutant sources that may exist on a construction site. These controls include proper disposal of construction site waste; compliance with applicable state or local waste disposal, sanitary sewer, or septic system regulations; control of offsite vehicle tracking; and control of allowable nonstorm water discharges.”
Under the section “Standard And Specifications For Construction Site Waste Management & Spill Control,” the following practice is recommended: “Provide proper sanitary facilities for construction workers.”
That’s really about all there is to guide contractors in Delaware on portable sanitation in order to get their NPDES permit.
Here is how a few other random states deal with portable sanitation in the permitting process:
184.108.40.206 Provide containment of sanitation facilities (e.g., use of portable toilets) to prevent discharges of pollutants to the storm water drainage system or receiving water. Clean or replace sanitation facilities and inspect them regularly for leaks and spills.
220.127.116.11.2f. For sanitary waste: Position portable toilets outside of areas of stormwater flow and
ensure that they are secure and will not be tipped over.
Stormwater Management Plan
C. 3. Stormwater Management Controls
At a minimum, each of the following sources and activities shall be evaluated for the potential to contribute pollutants to stormwater discharges, and identified in the SWMP if found to have such potential…
12) non-industrial waste sources such as worker trash and portable toilets
Construction General Permit
Attachment E Risk Level 3 Requirements
Risk Level 3 dischargers shall implement good housekeeping measures for waste management, which, at a minimum, shall consist of the following:
b. Ensure the containment of sanitation facilities (e.g., portable toilets) to prevent discharges of pollutants to the storm water drainage system or receiving water.
c. Clean or replace sanitation facilities and inspecting them regularly for leaks and spills.
D. Pollution Prevention Measures. Design, install, implement and maintain effective pollution prevention measures to minimize the discharge of pollutants. At a minimum, such measures must be designed, installed, implemented and maintained to…
2. Minimize the exposure of construction materials, products, and wastes; landscape materials, fertilizers, pesticides, and herbicides; detergents, sanitary waste and other materials present on the site to precipitation and to storm water
NPDES Water Pollution Control Permit
II.H.4. Preventative Maintenance
Good housekeeping protocols to ensure a clean and orderly project. This includes minimizing the exposure of building materials, building projects, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and other materials present on the site to stormwater.
Large Construction General Permit and Small Construction General Permit
7.19 Sanitary facilities. Sanitary sewage facilities (typically portable) will be operated in compliance with all applicable state and local waste disposal, sanitary sewer, or septic system regulations. Portable toilets must be properly secured to prevent tipping by vandals or blowing over in wind events.
In these examples, you will notice two things:
It’s our opinion that by giving this leeway to provide sanitation, states recognize the reliability of the portable sanitation industry and its independent companies to maintain their own high standards of performance. To meet permitting requirements, portable sanitation on construction sites should be based on a relationship of trust between PROs and contractors, established by using well-manufactured products and delivering service that maintains clean, sanitary conditions throughout the construction process.
In addition to the state regulations to fulfill the EPA mandate, the contractor may have to consider additional rules and regulations of a municipality, county, conservation district or state agency. It’s possible that one or more cities in your service area could have their own requirements for construction sites.
Even after studying the state permitting process, you may have a lot of questions. Since the permitting process can be complex, your best source of information is the state itself. Contact the state office responsible for permitting for more information.
Your local Chamber of Commerce can be a good source of information on county or municipal requirements.
If a contractor has a question about permitting with regards to portable sanitation or makes a claim that seems to contradict what you understand to be correct (such as “EPA rules require tie downs”), your knowledge can be a resource. However, don’t make actual recommendations about what to do or not do. A practical suggestion is to have the contractor contact the state, county or municipal office in charge of permitting.
So, why were DeLong’s customers purchasing so many containment trays?
Because ultimately, it’s up to the contractor to determine his or her best approach to each SWPPP. In these recent cases, a number of large construction contractors decided on their own initiative, out of an abundance of caution, to up their portable sanitation safeguards by renting trays for all their portable toilets.
The portable sanitation operators that are DeLong’s customers saw that their competitors were investing in containment trays. So, it made good business sense to invest in them as well. The demand was there.
Had any of the portable sanitation companies told their customers they had to use containment trays “because the EPA rules demand it” or a similar reason, that would be incorrect. But since the decision was the end users’ own choice, it’s up to the PRO to follow through and meet their needs. In fact, we applaud any contractor who goes beyond the minimum requirements when it comes to environmental protection.
In studying the Clean Water Act, EPA, state NPDES permitting and SWPPPs, we’ve come away with a few suggestions:
Have you had any situations in which a customer asked you about EPA requirements? Or, did a contractor tell you that he needed a service (such as containment trays or tie-downs) “because it’s an EPA rule?” How did you respond? Let us know in the comments section.
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