It's Official: State Water Board Adopts The New Industrial Storm Water Permit

by Wendel, Rosen, Black & Dean LLP
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Tweaking it right up to the very end, the State Water Resources Control Board finally adopted the new Industrial General Storm Water Permit on April 1, 2014.  It has been a long road since the current permit was to have expired in 2003, with at least seven drafts, numerous public workshops, and a time-out to explore the feasibility of numeric effluent limits. 

For the first time in 17 years, industrial facility operators will be learning the terms of a new permit and revamping their storm water management program to meet the new requirements.  This overview will give a quick rundown of the new permit, with particular attention to the more notable changes from existing requirements.  Facility operators will find a familiar framework, but also a number of entirely new components and substantially more detail everywhere.

PERMIT OVERVIEW

BMPs.  Starting with something familiar, Best Management Practices or “BMPs” continue to be the focal point of the permit, as they have from the beginning.  Seasoned facility operators, accustomed to implementing BMPs of their choosing, must now implement a suite of prescribed BMPs.  The new permit provides a menu of options in two categories: “Minimum BMPs” and “Advanced BMPs.”  Minimum BMPs are generally housekeeping details, like covering pollutant sources, cleaning up spills, keeping the facility tidy, maintaining equipment in good repair, training employees, etc. 

Advanced BMPs, typically involving a structural approach, will be required when minimum BMPs do not do the job.  They include building shelters to minimize exposure, installing systems to treat storm water, or constructing diversion and containment facilities to retain or reduce the volume of runoff.

Monitoring. Permittees will also continue monitoring under the proposed permit but at different frequencies. First, dry weather observations must be conducted more frequently -- monthly now instead of quarterly.  Wet weather observations are required four times annually (when sampling), rather than monthly as required by the current permit.  Discharges to ocean waters are subject to special Ocean Plan monitoring requirements.

Sampling and Analysis.  The basic sampling requirements are not complicated.  The new permit requires samples be collected twice as often: two sampling events in each six-month time frame (July-December and January-June).  To improve the chances that four events are sampled, the “qualifying storm event” has been redefined as an event that produces runoff and follows at least 48 hours of no runoff.  In addition, samples can be collected up to four hours after runoff begins, or if a storm hits overnight, within four hours of the start of facility operations the next morning.  Currently, sample collection must be completed within one hour of the beginning of discharge following three days of no discharge.  Failure to collect four samples from each drainage basin will be a violation of the permit (assuming four qualifying storm events occur over the monitoring year.)

The basic list of analytical parameters remains much the same -- total suspended solids, oil & grease, pH, and any other potential pollutants or industry-specific parameters, except specific conductance has been dropped.  Facility operators will want to understand the criteria for reducing the number of storm events and locations sampled, and be alert to circumstances that revoke those more streamlined requirements.

At the next level of detail, sampling provisions are more complicated.  If a facility discharges to a water body subject to a TMDL or listed as impaired, samples must also be tested for the impairing pollutant if there is a potential that the pollutant is in the facility’s runoff.  Determining whether a facility discharges to an impaired water body will not necessarily be a simple task, particularly for those facilities some distance from listed waters.  Also, new monitoring requirements under the Ocean Plan are applicable to facilities discharging directly to the ocean.  And at some facilities, identifying appropriate sampling locations based on drainage areas may be challenging.

Numeric Action Levels and Exceedance Response Actions.  Now come the bigger changes.  While the current permit provides little direction in the assessment of analytical results, the new permit establishes a whole new set of requirements to evaluate, report and act on monitoring data.  First, the analytical results for each parameter must be assessed relative to Numeric Action Levels, or NALs, which are the “Benchmarks” in the EPA’s Multisector Industrial Permit.  Analytical results for each parameter must be averaged over the monitoring year and compared against the Annual NAL.  Each result for total suspended solids, oil & grease, and pH must be compared to the instantaneous maximum NAL.

The first time a test result exceeds an NAL, the facility’s status changes from “Baseline” to “Level 1,” and it must perform a Level 1 Exceedance Response Action (ERA) Evaluation and submit a Level 1 ERA Report that identifies additional BMPs to prevent future exceedances.  Once those BMPs are implemented and four consecutive samples are below the NAL, the facility may return to Baseline.

If the same NAL is exceeded while the facility’s status is Level 1, the facility advances to Level 2, triggering a Level 2 ERA Action Plan and Technical Report.  If the investigation demonstrates the exceedances resulted from non-industrial or natural background sources, the facility is ineligible to return to Baseline status.

QISP Certification.  Certain permit requirements must be performed by a Qualified Industrial Storm Water Practitioner (QISP).  However, a QISP is generally not needed until an NAL exceedance triggers a facility status change to Level 1.  At that time, a QISP is needed for preparing ERA plans and reports, and for training the facility’s storm water team. 

No particular credentials are necessary to be eligible for QISP training and certification.  However, a licensed professional engineer may need to be involved with certain aspects of ERA reports if the QISP does not have the background.  QISPs must register with the State Board following training and certification under a State Board sponsored or approved training course.  Some facilities may never need a QISP while many Level 2 and perhaps Level 1 facilities will be considering whether to hire an in-house QISP.

Compliance Groups.  Facilities of the same industry type that have similar types of activities, pollutant sources and pollutant characteristics may form a Compliance Group.  Like Group Monitoring programs under the existing permit, a Compliance Group can provide a benefit to participants, such as more cost effective and streamlined program administration through pooled resources, consolidated ERA reports, reduced sampling and ready access to compliance assistance. 

Reporting.  The proposed permit requires substantially more information to be submitted to the SWRCB, including the SWPPP, SWPPP modifications, and ERA plans and reports, in addition to the Annual Reports.  Sampling results must be reported to the State within 30 days rather than with the Annual Report.  And, notably, everything must be submitted electronically to the Storm Water Multiple Application Reporting and Tracking System (SMARTS) where it will be available for public review.

No Exposure Certification.  Regulated facilities that meet certain conditions and can certify that storm water is not exposed to industrial pollutants at their facility need not implement the permit if they annually submit a No Exposure Certification (“NEC”) and pay a fee (currently $242).  This will be an attractive option for perhaps 20,000 facilities statewide.

Notices of Non-Applicability.  The permit requirement stems from the Clean Water Act prohibition on discharging industrial storm water to Waters of the U.S. without a permit.  In other words, no permit is required if no storm water is discharged.  Facilities that retain onsite or infiltrate their storm water are therefore technically not required to obtain the permit, though it can be a difficult task to convince a skeptical agency staff person or citizen enforcer that storm water never runs off site.  For the first time, a process is provided for demonstrating no discharge: the Notice of Non-Applicability, or “NONA.”  While it is a little awkward for a permit to establish standards for exemption from that permit, facility operators who engage a licensed professional engineer and prepare a technical report to accompany their NONA filing minimize the possibility of a later dispute over discharging without a permit.  The federal penalty for violating the permit, by the way, is steep: $37,500 per violation per day. 

Other Details.  Those contemplating opening new facilities should consider this permit during the initial planning stages.  New dischargers to waters listed as impaired (on the section 303(d) list) are not eligible for this permit unless they can demonstrate the discharge will not contain the impairing pollutant, or will not cause or contribute to an exceedance of the water quality standard of the impairing pollutant.  A QISP must assist in determining coverage eligibility in this situation.


SUMMARY AND LOOKING AHEAD

Overall, the long period of wrangling over new and more detailed provisions seems to have produced a permit that many find much improved over the existing permit, former drafts, or both.  Although industrial operators and environmental groups would have certain aspects of the permit revised in opposite directions, there is widespread agreement with the Water Board’s objective of clarity in permit requirements.  Clarity, however, can be illusive when specific requirements are designed for general application across a wide range of facilities and activities.  While much experience was brought to bear on the development of the new permit, a number of points of confusion remain and questions will continue to arise as permittees attempt to implement permit requirements in the context of the unique features of their particular facilities.

Without doubt, the proposed IGP spells significant change for storm water programs at regulated industrial facilities.  While some may not be inclined to review the permit until the July 1, 2015 effective date draws near, those who review it soon have a valuable opportunity to prepare and avoid surprises.  For example, reviewing historic sampling results could help identify potential problem areas in time to make some adjustments before the 2015-2016 monitoring season.  Those who may be considering facility renovation or construction should review the new permit before finalizing plans.  Certain site design features and other facility considerations could significantly reduce the cost and effort required to implement this and subsequent industrial storm water permits, as well as improve compliance and reduce the risk of enforcement for years to come.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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