By Donald E. Sobelman and David M. Metres
By July 1, 2015, industrial facilities throughout California must come into compliance with a new version of the Clean Water Act general permit governing storm water discharges. The new Industrial General Permit is the first revision of that permit in 18 years. In contrast to the old permit’s comparatively permissive standards, the new permit imposes mandatory best management practices, increased sampling requirements, and significantly increased reporting obligations—all of which must be posted to the state’s online database and therefore be made available to the public.
Additionally, for the first time, “light industrial” facilities—including, for example, food and wine production facilities, textile and apparel facilities, and plastics facilities—will be required to comply with the permit. State regulators believe that the new requirements for light industrial facilities will double the number of facilities regulated by the permit statewide to over 20,000. Many of these facilities will qualify for a “no exposure certification,” but failure to obtain this certification and take appropriate action could subject these facilities to enforcement.
Failure to comply with the new Industrial General Permit’s requirements may result in enforcement by State regulators or by citizen enforcers suing under the Clean Water Act’s citizen suit provisions. Such enforcement can result in costly penalties: up to $37,500 per day per violation.
Unfortunately, under the current version of the permit, even businesses making good faith efforts to comply with the law often receive threats of litigation from citizen enforcers, who use the hammer of potential penalties to force facilities to settle the claims for significant sums. We expect that this trend will continue with the new permit. The potential for large monetary penalties, combined with the uncertainty generated by the new permit, will increase the already significant pressure to settle threatened citizen suits—even where meritorious defenses may exist.
Given the magnitude of changes in the new permit, industrial facilities will need to promptly develop and execute a strategy to ensure compliance.
Key Changes in the New Industrial General Permit
Submissions to the State: More Often, More Public. While the old permit only required annual submissions of data and reports to the State Water Resources Control Board, the new Industrial General Permit requires much more frequent submissions, including after every sampling event and any time a significant change occurs at the facility. Additionally, all submissions must be made through the State Board’s online database, known as “SMARTS,” where they will instantly be made available for viewing by the public—including citizen enforcers.
Sampling and Testing of Storm Water. The new permit increases sampling requirements. Instead of taking two samples, facilities now must take samples of storm water discharges from four Qualifying Storm Events (QSEs). Additionally, the definition of QSE has been broadened to encompass more storm events. For example, QSEs now must only be preceded by 48 consecutive hours without a storm water discharge (previously it was 72 hours). As a result, many more storm water discharges will qualify as QSEs, and permittees will need to sample and test their storm water discharges more frequently. And all of those test results must be uploaded to SMARTS, where State regulators and citizen enforcers can easily review them.
New Mandatory Best Management Practices. Under the old permit, industrial facilities had the luxury of choosing storm water best management practices (BMPs) they deemed to be sufficient. No longer. The new permit prescribes certain mandatory “Minimum BMPs.” If these Minimum BMPs are not effective, then facilities must implement “Advanced BMPs.” Advanced BMPs include structural changes, such as installation of filtration units or settling ponds. Further, Advanced BMPs must be designed by a person licensed under the State Board’s new Qualified Industrial Stormwater Practitioner (“QISP”) program. These requirements will significantly increase the cost and complexity of many facilities’ storm water management programs.
Numeric Action Levels Replace Benchmarks. Under the old permit, the State and citizen enforcers looked to whether EPA “benchmark” levels were exceeded in storm water samples to determine whether BMPs were effective. The new permit replaces the EPA benchmarks with “Numeric Action Levels” or “NALs,” exceedance of which may trigger the need to implement costly Advanced BMPs. However, in most instances the new permit allows averaging of samples to determine whether an exceedance has occurred, which should reduce the number of exceedances at most facilities. If exceedances of the NALs occur, facilities should take these events very seriously and respond proactively to ensure continued compliance.
July 1 Compliance Deadline
The new Industrial General Permit goes into effect on July 1. By that date, industrial facilities must integrate the new permit requirements into a site-specific Storm Water Pollution Prevention Plan, prepare an updated site map, train staff members on implementing the new permit, and submit all the proper documentation to the State Board website. Businesses subject to the new permit should therefore focus on this challenging set of new and time sensitive permitting requirements as soon as possible.
Sobelman is a partner and Metres is an associate at Barg Coffin Lewis & Trapp LLP, a San Francisco-based law firm providing nationally recognized expertise in environmental law and litigation.