State Water Board Seeks Public Comment on 2012 Draft General Permit
The State Water Resources Control Board (State Water Board) is seeking comments on its latest draft of the proposed General Permit for Storm Water Discharges Associated with Industrial Activities (General Permit). The current General Permit was issued in 1997 and is long past the original five-year term, but it remains in effect until a new General Permit is adopted.
The 2012 draft General Permit is being issued for public comment. Written comments are due to the State Water Board by noon on Friday, September 21, 2012; oral comments may be presented at the State Water Board’s public hearing on Wednesday, October 17, 2012 at 9 am, in Sacramento. In addition, the State Water Board has scheduled two workshops to answer questions and receive informal feedback on the General Permit. Further information, including the draft General Permit and commenting instructions, is available on the State Water Board’s website at http://www.waterboards.ca.gov/water_issues/programs/stormwater/industrial.shtml. Companies that are subject to the current General Permit should review the new proposed General Permit carefully to determine if it contains issues of concern and consider submitting written comments, as appropriate. The State Water Board anticipates final adoption in early 2013.
The State Water Board has been working on the development of a new General Permit since 2003, but prior efforts were stymied over disputes regarding the appropriate use of numeric effluent limits for storm water discharges. As we previously reported, in 2011 the State Water Board issued a draft General Permit that proposed a “soft” approach to numeric effluent limits (NELs). Under that approach, NELs would be imposed if a discharger subject to the General Permit repeatedly exceeded Numerical Action Limits (NALs), after taking corrective actions required when the discharger exceeded the NALs for the first and second time.
That 2011 draft General Permit elicited substantial feedback from various stakeholders, and the State Water Board made considerable changes to this latest draft General Permit in response. Perhaps most significant is the elimination of NELs altogether. The State Water Board concluded it does not currently have the information and resources necessary to promulgate NELs. Also notable in the 2012 draft, the State Water Board has made an effort to address concerns raised about the cost of implementation by reducing the number of inspections required as compared to the prior draft, as well as simplifying and streamlining training requirements (such as by exempting California-certified professional civil engineers, professional geologists, and certified engineering geologists from the training requirements). In addition, a “compliance group” program is proposed to provide some of the benefits of the group monitoring program that the 2012 draft proposes to eliminate.
Although the 2012 draft General Permit removes NELs, it retains the concept proposed in the 2011 draft regarding compliance with NALs. The General Permit contains two types of NALs: annual NALs are based on the values provided in the 2008 EPA Multisector General Permit; instantaneous maximum NALs are based on California industrial storm water discharge monitoring data, and target episodic discharges of pollutants. Accordingly, an exceedance of an annual NAL occurs when the average of all analytical results for a parameter from samples taken within a reporting year exceeds an annual NAL value for that parameter (or is outside the NAL pH range). An exceedance of the instantaneous maximum NAL occurs when two or more analytical results for TSS, Oil & Gas, or pH from samples taken within a reporting year exceed the instantaneous maximum NAL value (or are outside the NAL pH range).
A discharger must perform an Exceedance Response Action (ERA) when it exceeds either type of NAL. In the 2012 draft General Permit, ERAs are divided into two levels. The first time a discharger exceeds a NAL for any one constituent, its status changes to Level 1 ERA status, and it must review its Storm Water Pollution Prevention Plan (SWPPP), implement operational source control Best Management Practices (BMPs), and submit a Level 1 ERA Report. If a discharger exceeds a NAL in a subsequent reporting year, the discharger’s status changes to Level 2 ERA status. That status means the discharger is required to design and implement treatment and/or structural controls in compliance with BAT/BCT, unless they can demonstrate the application of one of three situations (one of which is that the exceedances are caused by background sources).
Although the changes generally result in an improvement over the prior draft for monitored facilities, the draft General Permit includes many requirements that merit close review by those who will be subject to it once approved. Most of these are in the nature of tightening existing requirements in the current General Permit, so dischargers subject to the current General Permit will be familiar with the concepts, but will likely need to make changes to implement the 2012 draft General Permit, if adopted in its current form. The degree to which any individual discharger will be impacted will vary with the nature of their industrial activity and the particular facts of their operations and discharges. For example, the current General Permit already requires dischargers to implement BMPs to limit or eliminate introduction of pollutants into storm water. The 2012 draft General Permit ratchets up this requirement by requiring a number of specific minimum BMPs to be implemented unless they are clearly inapplicable. Some dischargers may find that they already satisfy the specific minimum BMPs in their Storm Water Pollution Prevention Plans (SWPPPs) so no changes would be necessary, while others may face extensive revisions to their programs to comply. The 2012 draft General Permit would tighten requirements in a variety of other areas, including inspections, training, qualifications, SWPPP preparation and content, monitoring and reporting.
If you have questions about the draft General Permit or its implications for your operations or would like assistance in submitting comments, please contact John Epperson or any of the other environmental attorneys at Farella Braun + Martel LLP.