Ten Things To Know About California's New Industrial Storm Water Permit

by Stoel Rives LLP
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On April 1, 2014, the State Water Resources Control Board unanimously adopted a new Industrial Storm Water permit (2014 Permit).  You can find the new Industrial Storm Water permit and supporting documents here, along with a change sheet also adopted by the State Board.

The federal Clean Water Act prohibits certain discharges of storm water containing pollutants except in compliance with a permit.  The 2014 Permit is a state-wide permit (called a “general” permit) for all covered industrial facilities in California.  Covered industrial facilities must comply with the 2014 Permit when it comes into force in order to be in compliance with the Clean Water Act. 

The 2014 Permit completely revises the prior 1997 Industrial Storm Water permit (1997 Permit), and includes many new twists for the regulated community to navigate. 

A simple blog post cannot tell you everything you need to know about how to comply with the 2014 Permit.  To get you started, however, here are “Ten Things to Know” about the 2014 Permit:

 1.     Many More Facilities Covered by the 2014 Permit

The 2014 Permit eliminates conditional exemptions found in the 1997 Permit.  Now, all facilities listed in Attachment A must apply for coverage under the 2014 Permit, even if they do not expose storm water to industrial activity.  (See # 10, below, “Guilty Until Proven Innocent”.)  A large number of California facilities that did not have to register under the 1997 Permit now must register under the 2014 Permit.  (Are you one of them?  See SIC Code look up tool available here)  How many new facilities will be covered?  No one really knows, but the number is expected to be large. 

 2.     Revisions to Existing Storm Water Plans and/or Best Management Practices Almost Certainly Required

The 2014 Permit will almost certainly require revisions to your existing Storm Water Pollution Prevention Plan (SWPPP) and supporting documents.  It is also possible that implementation of new Best Management Practices (BMPs) will also be necessary. 

3.     Key Dates

(a)   July 1, 2015.  The 2014 Permit takes effect on July 1, 2015.  Facilities already operating under the 1997 Permit must submit any updates to their compliance documents by this date.  Facilities newly covered by the 2014 Permit must also register and submit their compliance documents by July 1, 2015, unless they are going to seek “no exposure certification.”

(b)  October 1, 2015:  Any covered facility seeking “no exposure certification” (see # 10, below) must apply and submit other registration material by October 1, 2015. 

4.     More Monitoring

The 2014 Permit requires more visual monitoring of drainage areas (monthly instead of quarterly) and monitoring during qualifying rain events (four times per year instead of twice). 

 5.     More Sampling

The 2014 Permit requires more sampling for additional pollutants based on a number of factors, including but not limited to your facility’s SIC Code, and whether the facility is near a water body listed under Clean Water Act  § 303(d). 

 6.     Special Circumstance May Apply Depending on Discharge Location

The 2014 Permit includes special requirements for facilities based on where they discharge.  For example, a facility that discharges to the Pacific Ocean, or a water body listed as  impaired under Clean Water Act § 303(d), must comply with additional requirements.  Of special note, a brand new facility seeking coverage under the 2014 Permit is prohibited from discharging storm water to an impaired, § 303(d) listed water body without showing no discharge of the pollutant that impairs the water body, or that the discharge will not cause or contribute to an exceedance of a water quality standard.

 7.     Computer Savvy Required

The 2014 Permit requires that all compliance filings be made electronically through the State Board’s “Storm Water Multiple Application Reporting and Tracking System” (SMARTS). 

 8.     Numeric Limits for Pollutant Discharges

The 2014 Permit includes “numeric action limits” (NALs) for certain pollutants.  The limits include “instantaneous” limits, which can be exceeded in any one sample, and “annual” limits, which are based on the covered facility’s average pollutant concentration over the year.  While exceedance of a NAL is not a per se violation of the 2014 Permit, it triggers requirements for the facility to prohibit or reduce the discharge of the relevant pollutant.  (See # 9, “Exceedance Response Action Levels 1 and 2,” below.) 

 9.     Exceedance Response Action Levels 1 and 2

What happens if a NAL is exceeded?  The 2014 Permit includes two “exceedance response action” (ERA) levels—Level 1 and Level 2.  Responding to a NAL exceedance will require expert guidance, new and/or improved BMPs, and additional reporting to the State Board.  It is possible to return to “baseline” status from an “exceedance response action” Level 1 or Level 2, but doing so takes at least one year of clean sampling results.  Some covered facilities may immediately find themselves moving to Level 1 or Level 2 when the 2014 Permit takes effect.

10.  “Guilty Until Proven Innocent”

A covered facility that does not expose storm water to industrial activity can seek conditional exclusion from the 2014 Permit, but it has to prove that fact.  Doing so requires registration as a Discharger, payment of an annual fee, preparation of a Site Map, and submission of a No Exposure Certificate (NEC) demonstrating no exposure.  And the facility must annually verify no exposure in order to maintain its conditional exclusion.

 

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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