This Web Exclusive is contributed by Donald Sobelman and David Metres, both attorneys with Barg Coffin Lewis & Trapp, a San Francisco law firm focused on environmental compliance and litigation.
California water regulators recently proposed a new set of permitting requirements for stormwater discharges that would reset 16 years of established practice for many businesses, including some businesses never before subject to such regulation. The State Board expects final adoption of the Industrial General Permit to occur in early 2014, with implementation occurring on January 1, 2015.
The New Stormwater Discharge Permit
On July 19, 2013, the California State Water Resources Control Board (State Board) issued a draft general National Pollutant Discharge Elimination System (NPDES) permit that regulates stormwater discharges associated with industrial activity. The federal Clean Water Act requires facilities to obtain a NPDES permit in order to discharge pollutants via point sources into waters of the United States. This “Industrial General Permit” would require industrial facilities to comply with a host of new requirements not present in the current version of the permit, which was originally issued in 1997.
Facilities Covered by the New Requirements
Industrial facilities covered by these requirements include manufacturing plants (including light manufacturing); oil and gas/mining facilities; hazardous waste treatment, storage, or disposal (TSD) facilities; landfills and open dumps; recycling facilities; steam electric power generating facilities; transportation facilities; and sewage or wastewater treatment works.
Additionally, any such industrial facilities that previously were exempt from stormwater regulation would now need to apply for coverage under the Industrial General Permit. The proposed permit would require those facilities to file an annual No Exposure Certification (NEC) in the State Board’s web-based database, thus rendering such reports publicly available. Such facilities would also be subject to annual permit fees and inspections by water regulators.
New Permit Requires Certain Best Management Practices
The draft Industrial General Permit requires covered facilities that do not qualify for an NEC to implement 37 minimum Best Management Practices (BMPs), and, if those BMPs are not effective, implement advanced BMPs developed by a Qualified Industrial Storm Water Practitioner (QISP). The current version of the permit has no such BMP requirement, instead allowing dischargers to themselves determine which BMPs should be implemented. Minimum BMPs include good housekeeping requirements, preventive maintenance, material handling and waste management, erosion and sediment controls, and employee training programs. Advanced BMPs include practices such as exposure minimization, stormwater containment, discharge reduction, and treatment control.
Staying Ahead of the Curve: Preparing for the New Permit
Facilities currently regulated by the Industrial General Permit can proactively take certain steps to prepare for these new regulatory burdens.
Achieve no exposure of all industrial materials and activities. Regulated facilities should determine whether they may be able to qualify for an NEC exclusion by eliminating exposure of industrial materials and activities to rain and snow.
Evaluate and update existing compliance documents. The current Industrial General Permit already requires facilities to have in place a Storm Water Pollution Prevention Plan (SWPPP) that addresses site specific BMPs. Industrial facilities will need to update their SWPPPs and training protocols to incorporate the required BMPs and other new elements of the Industrial General Permit.
Consider participation in a compliance group. Facility managers should consider whether participating in a compliance group will reduce their regulatory costs. The “group monitoring” allowed under the current version of the permit would be replaced by this process. Any group of dischargers of the same industry type, and any QISP representing dischargers of the same industry type, may form a compliance group. A compliance group consists of dischargers who operate facilities with similar types of industrial activities, pollutant sources, and pollutant characteristics (e.g., scrap metals recyclers would join a different group than paper recyclers, truck vehicle maintenance facilities would join a different group than airplane vehicle maintenance facilities, etc.). Joining a compliance group could provide facility managers with a method for sharing the costs of preparing technical reports and developing effective stormwater BMPs.
National Implications of the California Permit
The primary reason that this revision to the Industrial General Permit was delayed for several years was a heated battle over whether to replace the existing approach—under which permittees compare their effluent pollutant levels to non-binding EPA “benchmark” levels, to evaluate BMP effectiveness—with hard numeric effluent limitations, exceedances of which would constitute permit violations that could trigger an enforcement action. Environmental groups pushed hard for numeric limits, but the regulated industries strongly pushed back, and the current draft does not include such limits.
In deciding not to include enforceable numeric effluent limitations in the current draft of the Permit, California water regulators cited many of the reasons asserted by industry. These reasons were primarily based on the lack of adequate information, specifically data gaps related to monitoring data, industry specific discharge information, BMP performance analyses, water quality information, monitoring guidelines, and information on costs and overall effectiveness of control technologies. As California environmental regulators often set the trend for water quality regulation nationwide, their accommodation of industrial dischargers’ needs is likely to set back efforts to impose numeric limits in stormwater permits in other jurisdictions throughout the United States.