Water Quality Law Alert: CA State Water Control Board Opens Public Comment on "Final Draft" of Long-Anticipated Industrial Storm Water General Permit

by Stoel Rives LLP

As previously reported by my colleague Melissa Foster, on July 19, 2013, the State Water Board published the "Final Draft" of the NPDES Industrial Storm Water General Permit, which is intended to replace the previous version of the Industrial General Permit, which has been in place since 1997. The highly anticipated Final Draft is intended to regulate storm water discharges from a wide range of businesses under the federal Clean Water Act and the state's Porter-Cologne Water Quality Control Act. (Click here for the 548 Standard Industrial Codes ("SIC") that will now be subject to regulation under the Final Draft.)

The Final Draft significantly expands the range of businesses that will be subject to the permit while significantly increasing the cost of compliance and potential exposure to liability. As with previous versions of the Industrial General Permit, the provisions of the Final Draft will be enforceable by local, state and federal agencies as well as by citizen suit. Affected businesses should carefully review the Final Draft and consider making comments. The comment period closes on August 29, 2013.

This alert outlines the historical development of the Industrial General Permit, identifies ways to obtain additional information about the Final Draft and how to submit comments, and outlines key changes between the Final Draft and the existing Industrial General Permit.

Summary of Key Changes

  • Vastly increases the number of regulated Dischargers by removing the "conditional exclusion" for light industry and replacing it with a "No Exposure Certification"
  • Requires all Dischargers who cannot meet the requirements of the No Exposure Certification to implement a specific set of Minimum Best Management Practices ("BMPs")
  • Creates strict liability for unauthorized non-storm water discharges and storm water discharges that exceed receiving water standards
  • Specifies instantaneous and annual Numeric Action Levels, which, if exceeded, require the Discharger to prepare Corrective Action Reports and implement a host of additional requirements
  • Requires that Dischargers who exceed Numeric Action Levels engage a Qualified Industrial Storm Water Professional ("QISP") to prepare Storm Water Pollution Prevention Plans and reports
  • Significantly increases the frequency and scope of sampling requirements

Industrial General Permit: Then and Now

As described by the State Water Board, the Industrial General Permit regulates discharges associated with 10 categories of industrial activities. Operators of an industrial facility must apply for coverage under the Industrial General Permit, implement management measures to achieve specific performance standards, and monitor performance.

The existing Industrial General Permit was issued in April 1997. This is the fourth iteration that the State Water Board has released to replace the 1997 permit, following previous efforts in 2005, 2011, and 2012.

Public Comment and Additional Information

The State Water Board will accept written public comments until noon on Thursday, August 29, 2013. For written comment directions, click here. In addition, the Board will hold a public hearing on August 21, 2013 to accept oral comments. This hearing will be held in Sacramento at 9:00 a.m. at the CalEPA Building 1001 I Street.

Failure to submit comments may not only deprive the State Water Board of valuable perspective, but will also constitute a failure to exhaust administrative remedies sufficient to prohibit legal challenge. In addition to the formal public hearing, Water Board staff will hold two informal WebEx workshops on August 9, 2013 and August 14, 2013 to provide information about the Final Draft. According to the public notice of availability, staff expects to submit the Final Draft to the State Water Board for consideration in January 2014.

Unlike with the recently adopted General Municipal Storm Water Permits, members of the public have the right to engage in ex parte communications with Board Members regarding the Final Draft, pursuant to Water Code section 13287. It is expected that Board Members will be the focus of heavy lobbying efforts by various groups interested in the Industrial General Permit.

Significant Changes to the Industrial General Permit

1. Scope of Coverage

The Final Draft applies U.S. EPA's Phase II regulations regarding a conditional exclusion for facilities where there is no exposure of industrial activities and materials to storm water. (40 C.F.R. § 122.26(g).) The existing Permit requires light industries to obtain coverage only if their activities were exposed to storm water. The Final Draft implements current EPA rules allowing any type of industry to claim the conditional exclusion. In the proposed General Permit, the No Exposure Certification ("NEC") requires enrollment for coverage of all Dischargers by SIC code but conditionally excludes dischargers that meet the NEC requirements from a majority of the requirements. Most Dischargers will probably not be able to meet the stringent requirements of the NEC, which includes a strict prohibition against any industrial activity that is exposed to storm water including the loading and unloading of raw materials, finished products and wastes.

Estimates of the number of facilities that will be required to seek coverage under the Final Draft vary. However, the best estimate for San Diego County alone is that the number of facilities Dischargers who will be required to obtain coverage will jump from approximately 750 to approximately 14,000.

2. Minimum Best Management Practices

This Final Draft requires all Dischargers that cannot meet the NEC requirements to implement 37 minimum BMPs. These minimum BMPs, in combination with any advanced BMPs (collectively, BMPs) necessary to reduce or prevent pollutants in industrial storm water discharges, serve as the basis for compliance with this General Permit's technology-based effluent limitations. However, implementation of BMPs does not provide a defense against exceedances of receiving water limitations.

The current General Permit does not require minimum BMPs, but rather allows Dischargers to "consider" which non-structural BMPs should be implemented and which structural BMPs should be "considered" for implementation when non-structural BMPs are ineffective.

3. Strict Liability for Exceedances of Water Quality Objectives

While not an explicit change, the Final Draft (in conjunction with the Ninth Circuit's opinion in NRDC v. Los Angeles Flood Control District, 673 F.3d 880 (9th Cir. 2011), reversed on other grounds, 133 S. Ct. 710 (2013)), would create strict liability for Dischargers whose storm water causes or contributes to an exceedance of a water quality objective; causes or threatens to cause pollution, contamination, or nuisance as defined by Water Code section 13050; or violates any discharge prohibitions contained in any applicable Regional Water Quality Control Plans or statewide water quality control plans and policies.

4. Numeric Action Levels ("NALs") and NAL Exceedances

The Final Draft subjects all Dischargers to NALs for Total Suspended Solids and Oil and Grease. Additional NALs are applicable to Dischargers by SIC code. These include pH, chemical oxygen demand, cyanide, copper, aluminum, nitrates, phosphorous , ammonia, magnesium, arsenic, cadmium, nickel, mercury, selenium, silver, and biochemical oxygen demand.

5. Training Expectations and Roles

The Final Draft requires that Dischargers arrange to have appropriately trained personnel implementing the requirements at each facility. In addition, if a Discharger's facility enters Level 1 status due to the exceedence of a NAL, a Level 1 Exceedance Response Action Report must be prepared by a QISP. All Action Plans and Technical Reports required in Level 2 status must also be prepared by a QISP.

The Final Draft allows Dischargers to appoint a staff person to take the QISP training or hire an outside contractor. QISP training is tailored to persons with a high degree of technical knowledge and environmental experience, which for many Dischargers will be beyond the skills of their current employees. Although QISPs do not need to be California licensed professional engineers, it may be necessary to involve a California licensed professional engineer to perform certain aspects of the Technical Reports.

6. Sampling Protocols

This Final Draft requires Dischargers to collect samples, during scheduled facility operating hours, from each drainage location within four hours of: (1) the start of the discharge from a Qualified Storm Event ("QSE") occurring during scheduled facility operating hours, or (2) the start of scheduled facility operating hours if the QSE occurred in the previous 12 hours.

The Final Draft increases the sampling frequency by requiring the Discharger to collect and analyze storm water samples from each discharge location from two QSEs within the first half of each reporting year (July 1 to December 31), and two QSEs within the second half of each reporting year (January 1 to June 30). Eliminating the wet season should increase the number of possible QSEs eligible for sample collection.

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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