New Requirements Emphasized Concerning Indiana Rule 5 Construction Plans

Construction plans which once met the requirements of Rule 5 may now be deficient in light of increased attention by state regulators to requirements that construction plans identify possible pollutants and their sources. In 1992, the Indiana Water Pollution Control Board passed the original version of Rule 5, which imposed requirements for storm water discharges from construction activities. See 327 Indiana Administrative Code 15-5-1. At that time, the Rule’s primary focus was on sediment and erosion control. The Indiana Department of Environmental Management and Indiana Department of Natural Resources now emphasize additional requirements that the preparers of construction plans identify possible pollutants and their sources, in addition to continuing to require vigilant efforts to minimize erosion, sediment loss and discharge of possible pollutants.

Who is Required to Prepare a Construction Plan?

To meet Rule 5’s requirements, the project site owner must complete a construction plan. The Rule defines “project site owner” as the person who is required to submit the Notice of Intent letter. This person may be the developer or a person, such as a contractor, who has financial and operational control of construction activities and project plans and specifications. Note that this also includes any person with the ability to make modifications to those construction plans and specifications. See 327 IAC 15-5-4(30). While a contractor may prepare a construction plan, even if it does not, at the very least the contractor likely will be required to follow the construction plan during all stages of a project. The penalties for violations of Rule 5 are significant and may include heavy fines, civil penalties and injunctions mandating work stoppage.

When Is a Construction Plan Necessary?

Rule 5, in general, applies to all construction projects involving land disturbing activities, such as clearing, grading, excavating, filling, transporting, and removing vegetative cover at a construction site. The Rule applies to any disturbance of one acre or more of land area. In addition, land disturbing activities that result in the disturbance of less than one acre of total land area are subject to Rule 5 requirements if such activities are part of a larger common plan of development or sale.

What Are the Requirements For a Construction Plan?

A construction plan is highly site specific and must consider all of the unique features of a particular construction site. The plan must fairly describe the site and all activities associated with the project, including attention to the location of buildings and other infrastructure, grading activities, schedules for implementation and any other unique information related to the project site. See 327 IAC 15-5-4(5). In addition, the plan must include a detailed project narrative (with supporting documentation) describing the nature and purpose of the project; a vicinity map showing the project site and identifying all wetlands, lakes and water courses on or adjacent to the site; a final project layout; a grading plan; a drainage plan; and a storm water pollution prevention plan.

The amended version of Rule 5 requires that the Storm Water Pollution Prevention Plan, a critical component of the construction plan, include measures to reduce discharge of pollutants associated with construction activities and land use after completion of the construction. See 327 IAC 15-5-6.5(7). Because of this increased focus on construction site pollutants, the construction plan must now include a description of any pollutants that are 1) present at the site; 2) related to the construction activity; and 3) could reasonably be expected to add pollutants to any storm water discharges from the site during construction. While the Rule specifically requires that the construction plan needs to discuss only those pollutants that would leave the site in “significant quantities,” the Rule is silent as to the meaning of “significant quantities.” Additionally, handling and storage of these types of materials must meet both spill prevention and response requirements. See 327 IAC 15-5-6.5(7). Other possible pollutants on the construction site can include hazardous wastes, universal wastes, oil, grease, fuel, pesticides, herbicides and other toxins. Rule 5 requires that any potentially toxic construction materials, fuels and other pollutants on the site be stored in compliance with state law.

Note that the very presence of construction equipment on-site could mean a new source of pollutants to be identified in the construction plan. If there is a reasonable expectation that a “significant quantity” of oil, grease, antifreeze, gasoline or other substances could be released during a storm water discharge on the site, the construction plan must address the issue. A spill or release of these substances during construction activities must be reported in compliance with state laws.

Conclusion

The key to creating a construction plan which will likely pass muster with state and local regulators is to be certain the plan details potential pollutants that may be generated from the specific project and includes pollutants associated with proposed land use changes.

Posted by: Dean R. Brackenridge

Categories: Current Developments / Legislation, Risk Management / Insurance