California State Water Board Issues New Draft Industrial Storm Water Permit

by Allen Matkins

On July 19, 2013, the California State Water Resources Control Board released its long-awaited 2013 Draft NPDES Permit for the Discharge of Storm Water Associated With Industrial Activities (the "Draft Industrial General Permit"), proposing significant changes in the regulation of storm water discharges from industrial facilities. After 10 years of analysis and public input on numerous prior drafts, the State Water Board now proposes an Industrial General Permit to replace the current permit issued in 1997 which, if adopted, will vastly increase the number of industries affected and impose new and increased compliance requirements. On the other hand, in certain respects the Draft Industrial General Permit does not go as far as environmental groups have pushed both administratively and in citizen's suits.

State Water Board staff expects to submit the final draft industrial general permit to the State Water Board for consideration in January 2014 and will conduct two informal web conference workshops on August 9 and August 14, 2013. In addition, a public hearing will be held on August 21, 2013, at 9:00 a.m. at Cal/EPA Headquarters, at 1001 I Street, Second Floor, in Sacramento, which is the only opportunity for oral comments on the draft permit to be submitted. All written comments and evidence must be received by the State Water Board by 12:00 noon on Thursday, August 29, 2013, to be considered.

Proposed Key Changes to the Industrial General Permit

The 2013 Draft Industrial General Permit includes the following significant new provisions:

Regulation of Light Industries: Under the 1997 permit, certain so-called "light industry" facilities were exempt from the permit's requirements upon self-certification that non-storm water discharges at their facilities had been eliminated and that their industrial activities were not exposed to storm water. Under the proposed Draft Industrial General Permit, light industries must enroll for permit coverage but, consistent with the U.S. EPA's Phase II regulations (40 C.F.R. § 122.26(g)), they may claim a conditional exclusion by filing a "No Exposure Certification" (NEC), certifying that there is no exposure of industrial activities and materials to storm water. The NEC must be filed annually, and the facility must allow inspections by water board staff. The enrollment and NEC, like all documents required to be submitted to the State Water Board by any dischargers, must now be submitted to the State Water Board's Storm Water Multi Application and Report Tracking System (SMARTS), making those reports readily available to the public.

Mandatory BMPs: The 1997 permit allowed dischargers to "consider" which non-structural and structural best management practices (BMPs) should be implemented to reduce or prevent pollutants in storm water discharges. The Draft Industrial General Permit requires the implementation of numerous "minimum BMPs," including detailed good housekeeping requirements, preventative maintenance, material handling and waste management, erosion and sediment controls, and employee training programs. Additional "advanced BMPs," including exposure minimization, storm water containment, discharge reduction, and treatment control BMPs, must also be implemented as necessary to reduce or prevent pollutant discharge.

Increased Sampling and Monitoring Requirements: The definition of a "Qualifying Storm Event" (QSE) has been modified to increase the number of QSEs eligible for sample collection. Sampling protocols under the Draft Industrial General Permit have been modified to require that samples be collected from each drainage location within four hours of certain triggering events. Sampling frequency is increased. Visual inspections must be performed once per month for any non-storm water discharges and potential sources of industrial pollutants. Instead of collecting two samples during the wet season, the Draft Permit requires sampling from each discharge location from two QSEs between July 1 and December 31, and two QSEs between January 1 and June 30.

Numeric Action Levels and Exceedance Response Actions (ERA): The Draft Industrial General Permit includes both annual and instantaneous maximum Numeric Action Levels (NALs), exceedances of which will trigger increasing levels of required actions. The first time an NAL exceedance occurs for any one parameter (such as total suspended solids or oil and grease), the discharger's status changes to Level 1, requiring evaluation of BMPs and preparation of a report by a Qualified Industrial Storm Water Practitioner (QISP). If an NAL is exceeded again for that same parameter, the discharger's status changes to Level 2, requiring submittal of an ERA Action Plan and a Level 2 ERA Technical Report with mandated BMPs. The discharger may be excused from performing additional ERA requirements for the subject parameter(s) if it can demonstrate in the certified Level 2 ERA Technical Report that NAL exceedances are caused by non-industrial pollutant sources, any additional BMPs required to eliminate NAL exceedances are not technologically available or economically achievable, or NAL exceedances are solely attributable to background levels of pollutants.

Clean Water Act Section 303(d) Impairment: In addition to the parameters required to be sampled pursuant to the SIC code-related specifications, dischargers must monitor additional parameters if the discharge from their facilities contributes pollutants to receiving waters that are listed as impaired for those pollutants. So, for example, if a receiving water is listed under section 303(d) as impaired for mercury, and the discharger's facility has potential sources of mercury, then the discharger must monitor mercury in its storm water discharges.

Compliance Groups: Group monitoring is no longer permitted under the Draft Industrial General Permit. Instead, there is a "Compliance Group" option. Any group of dischargers of the same industry type with similar activities, pollutant sources and pollutant characteristics may form a Compliance Group, whose leader must be a QISP. The Compliance Group leader must inspect each participant's facility each year. Compliance Group participants are individually responsible for permit compliance for their respective facilities, but each participant is only required to collect and analyze storm water samples from its facility twice each year. A consolidated Level 1 report may be prepared for all group participants with a Level 1 status, but Level 2 Action Plans and Level 2 Technical Reports must be specific to each group participant with Level 2 status.

Permit Coverage and Enforcement

The Draft Industrial General Permit would impose significant new requirements on dischargers, and require many more facilities to file a Notice of Intent to enroll for coverage under the Industrial General Permit. Noncompliance with permitting requirements constitutes a violation of the Clean Water Act and California's Porter-Cologne Water Quality Control Act, and may subject the discharger to civil penalties of up to $37,500 per day per violation. Enforcement may be pursued by governmental regulators as well as in private citizen suits (which also carry potential exposure for attorney's fees).

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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