California Adopts New General Industrial Storm Water Permit

4/4/2014 Articles

On April 1, 2014, after 12 years of drafts, public comments and deliberations, the California State Water Resources Control Board (“State Board”) adopted a new General Industrial Storm Water Permit (“General Permit”), which will become effective next year on July 1, 2015.  The new General Permit will replace the current version, previously adopted in 1997, regulating storm water discharges from numerous types of facilities, industrial operations and properties within the State of California.

The General Permit is more complicated than the current version, contains new requirements and standards, and emphasizes increased data collection and technical analysis.  Landowners, facility operators and businesses should determine whether they are subject to the General Permit, review the new requirements, compare them against current practices, and consider the measures required to position themselves for compliance when the new General Permit takes effect.

Landowners, Facility Operators and Businesses Subject to General Permit
A wide variety of facilities and activities are required to comply with the General Permit.  Examples include manufacturing facilities, steam electric power plants, wineries, oil and gas and mining facilities, recycling facilities, vehicle maintenance and cleaning facilities, waste management facilities, and wastewater treatment works.  Overall, the categories of facilities that must obtain coverage under the General Permit are consistent with the current permit. 

Storm Water Pollution Prevention Plans
The General Permit retains the existing obligation that a facility seeking coverage must submit a notice of intent to comply (“NOI”) with applicable requirements, and must prepare and implement a Storm Water Pollution Prevention Plan (“SWPPP”) that includes Best Management Practices (“BMPs”) for preventing or minimizing the discharge of industrial pollutants in storm water.  However, unlike the 1997 version, the new General Permit specifies several “minimum BMPs” that all industrial dischargers must implement.  These are primarily operational BMPs, such as good housekeeping, preventative maintenance and personnel training.  Some facilities may also need to implement “advanced BMPs,” such as containment and treatment of storm water, if the minimum BMPs are not sufficiently effective in reducing pollutants in storm water impacted by industrial operations. 

Storm Water Sampling and Monitoring
The new General Permit substantially modifies and increases storm water training, monitoring and sampling requirements as compared to the current permit.  Under the new General Permit, dischargers will be required to collect samples from all discharge locations during four “qualifying sampling events” (“QSEs”) each year.  A QSE is defined as a precipitation event that produces a discharge from any regulated drainage area that is preceded by 48 consecutive hours without a discharge.  Two QSEs should be sampled during the period July 1 to December 31, and another two QSEs should be sampled during the period January 1 to June 30.  By comparison, under the current permit dischargers must collect samples from two rain events that occur during a defined “wet season” (October 1 to May 30), each of which must be preceded by 72 hours without a discharge. 

Although the new General Permit requires dischargers to collect more samples, it also provides dischargers with greater flexibility.  For example, the new General Permit allows samples to be collected at any time during the first four hours of discharge, whereas the current permit requires samples to be taken during the first hour.  In addition, the new General Permit allows a discharger to combine up to four samples with substantially similar discharges for analysis, which is not allowed under the current permit.

Like the current permit, the new General Permit requires that all covered facilities sample and analyze for oil and grease (“O&G”), total suspended solids (“TSS”) and pH, but it eliminates the requirement to analyze for specific conductance.  In addition, the General Permit lists parameters, such as metals, that specific categories of facilities must sample for.  It also requires facilities to identify additional parameters that serve as indicators of all industrial pollutants that may be discharged.  Facilities must also monitor for parameters that are representative of pollutants that may cause or contribute to an exceedance of a water quality standard in the receiving waters.

Numeric Action Levels and Exceedance Response Actions
The new General Permit requires that dischargers must compare their monitoring results for the year (July 1 to June 30) to specified Numeric Action Levels (“NALs”) to determine if BMP modifications are required.  An exceedance of an NAL is not a violation of the General Permit, but it does trigger response requirements. 

There are two types of NAL exceedances.  First, an “instantaneous maximum NAL exceedance” occurs if two or more sampling results for either O&G, TSS or pH in a reporting year exceeds the NAL.  Second, an “annual NAL exceedance” occurs if the average annual concentration of all sampling data for any pollutant exceeds the NAL.

If an annual or instantaneous NAL is exceeded, the discharger is required to undertake an Exceedance Response Action (“ERA”).  An ERA generally entails modification of existing BMPs and/or implementation of new BMPs, and submission of ERA technical reports to the Regional Board that assess the efficacy of the modified/new BMPs.  The ERA technical reports must be prepared by a Qualified Industrial Storm Water Practitioner (“QISP”).  The QISP is a new type of technical professional that the State Board has created, which it hopes will infuse greater technical rigor into industrial storm water management.  QISP certification requirements are currently being developed.

There are two levels of ERAs.  Upon the first NAL exceedance for a particular parameter, the discharger will be designated as “Level 1 Status” when the next annual monitoring cycle commences on July 1 and required to undertake a Level 1 ERA.  The State Board expects that a Level 1 ERA will typically entail modification of existing BMPs.  The discharger should implement the BMP modifications by October 1, and submit the Level 1 ERA technical report to the appropriate Regional Board by January 1 of the year following the NAL exceedance.

If a Level 1 Status discharger has a second NAL exceedance for the same parameter, the discharger will be designated as “Level 2 Status” on the following July 1st.  The General Permit imposes greater obligations on a Level 2 Status discharger with respect to modifying and implementing structural BMPs or demonstrating that additional pollutant reductions are not feasible.  The discharger will have more time to carry out these activities and to prepare a Level 2 ERA action plan and technical report.  The Level 2 ERA technical report should evaluate the effectiveness of new BMPs, if any are implemented.  If no new BMPs are implemented, the technical report should contain a demonstration that additional pollutant reductions cannot be achieved because the source of some or all of the pollutants are from non-industrial or background sources.

Receiving Water Standards
The new General Permit provides that storm water discharges that cause or contribute to an exceedance of a water quality standard are subject to “water quality based corrective actions.”  This entails evaluating the implementation of the existing SWPPP with respect to the pollutant at issue and determining whether additional BMPs or other measures could be implemented to reduce the discharge sufficiently to meet water quality standards.  It is possible that these corrective actions could be in addition to BMPs that the facility implemented as part of a Level 1 or 2 ERA process. 

Impaired Water Bodies and TMDLs
The new General Permit also contains provisions for water bodies that are listed as impaired for one or more pollutants under Section 303(d) of the Clean Water Act.  In many instances, the local Regional Board has established a “Total Maximum Daily Load” (“TMDL”) of the particular pollutant that the impaired water body can receive and still achieve water quality standards.  If a facility discharges the same pollutants to the receiving water for which it is listed as impaired, the General Permit requires the discharger to monitor for additional parameters.  In addition, the Regional Boards are tasked with proposing TMDL-specific requirements by July 1, 2016 that should be incorporated into the General Permit.  Their proposals will be subject to public notice and comment and will have no force or effect until adopted by the State Board.

What Must Be Done By July 1, 2015?
Before the compliance deadline of July 1, 2015, all existing and new dischargers within industrial categories specified in the General Permit must submit an NOI, SWPPP and other specified documents to the State Board (via the online database system, SMARTS).  New dischargers are required to have these documents prepared by a QISP.  There are also document submission requirements for facilities that are required to obtain coverage, but which claim that storm water is not exposed to industrial pollutants or that no storm water is discharged from the facility. 

Between now and July 1, 2015, facilities that may require coverage should evaluate their operations against the new General Permit’s requirements.  Such facilities should also consider comparing the new requirements and NALs against current practices and monitoring results to determine the likelihood of future NAL exceedances and whether it would be prudent to modify existing BMPs and/or implement new BMPs before the new General Permit takes effect.  Facilities should also compare their current monitoring plans against the monitoring requirements in the new General Permit.

The Environmental Law Department of Farella Braun + Martel LLP is among the largest and most experienced in the nation, with attorneys specializing in all aspects of environmental compliance counseling, regulatory representation and litigation, including Clean Water Act compliance and defense of enforcement actions.

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