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Environmental & Natural Resources Legal Alert
April 11, 2014              

It's Final—State Water Board Adopts New Industrial General Permit for Storm Water Discharges

On April 1, 2014, the California State Water Resources Control Board (State Water Board) unanimously adopted a new National Pollutant Discharge Elimination System (NPDES) Permit for the Discharge of Storm Water Associated with Industrial Activities (Industrial General Permit) to update the Industrial General Permit it had adopted in 1997. Since our August 2013 Alert  on the draft Industrial Permit, the State Water Board solicited and received comments from the State Regional Water Quality Control Boards, and industry and environmental stakeholders, in an effort to further develop and refine the scope of the new Industrial General Permit. The new Industrial General Permit will become effective on July 1, 2015, and includes significant and complicated changes to the permitting, monitoring and reporting processes for storm water-related discharges from industrial facilities, which now include "light" industrial facilities previously exempt from the permit requirements.

All facilities regulated under the new Industrial General Permit will now need to evaluate their current practices with respect to the permit requirements to assure that they are properly and completely updated and modified to address the requirements of the new permit. Some of these new requirements will require that certain documentation, monitoring, reporting, and response action plans are prepared by a Qualified Industrial Storm Water Practitioner (QISP), either an employee or outside consultant, who has taken a State Water Board-sponsored or approved training course, registered as a QISP, and that specified corporate personnel certify and submit certain permit-related documentation. Covered facilities should therefore be taking steps now to assure they understand and will meet the new Industrial General Permit compliance obligations on or before July 1, 2015.


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 new 2014 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.

Enrolling for Coverage

By July 1, 2015, all covered facilities will need to submit to the SMARTS website either a Notice of Intent (NOI) for coverage under the Industrial General Permit or, by October 1, 2015, a No Exposure Certificate (NEC) for those facilities that can demonstrate and certify that their facilities have no exposure of industrial activities and materials to storm water discharges. Facilities seeking the conditional exclusion from specific permit requirements (i.e., an exemption from the Industrial General Permit requirements for preparation of a Storm Water Pollution Prevention Plan (SWPPP), sampling, and monitoring) remain obligated to annually conduct inspections, re-certifications, and make payment of fees. Dischargers that anticipate changes in the facility operations that would lead to exposure to storm water discharges should register for permit coverage before the anticipated changes occur. Only a "Legally Authorized Representative," as defined in the permit, may certify the Permit Registration Documents (PRDs) for NOI or NEC coverage. 

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 2014 Industrial General Permit requires the implementation of numerous "minimum BMPs," including detailed good housekeeping requirements, preventative maintenance, spill and leak prevention and response, material handling and waste management, erosion and sediment controls, employee training programs, and quality assurance and record keeping. Additional "advanced BMPs," including exposure minimization, storm water containment and discharge reduction, and treatment control BMPs, must also be implemented "to the extent feasible" as necessary to reduce or prevent discharges of pollutants in storm water in a manner that reflects "best industry practice considering technological availability and economic practicability and achievability." 

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. A QSE is now defined as a precipitation event that produces a discharge from any drainage area that is preceded by 48 (not the prior 72) consecutive hours without a discharge.

Sampling protocols under the 2014 Industrial General Permit have been modified to require that samples be collected from each drainage location within four hours (not the first hour) of a QSE. Now, instead of collecting two samples during the wet season, the 2014 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. In addition, the 2014 Permit allows a Discharger to authorize the lab to combine samples of equal volume from up to four discharge locations if those areas are substantially similar to one another.

The new Permit still requires analysis for oil and grease (O&G), total suspended solids (TSS) and pH, but eliminates the specific conductance parameter. Facilities subject to federal storm water effluent limitation guidelines must also analyze for additional specific pollutants. Dischargers also are required to identify pollutants that may cause or contribute to an existing exceedance of any applicable water quality standards for the receiving water and to select additional monitoring parameters that are representative of industrial materials handled at the facility that may be related to pollutants causing a water body to be impaired. 

Numeric Action Levels (NAL) and Exceedance Response Actions (ERA)

The 2014 Industrial General Permit includes both annual and instantaneous maximum NALs, exceedances of which will trigger increasing levels of required actions. The first time an NAL exceedance occurs for any one parameter (such as TSS), the Discharger's status changes from Baseline to Level 1 for the next reporting year, requiring that a QISP help to evaluate BMPs, revise the SWPPP, and certify and submit a Level 1 ERA report. If, while in Level 1, the NAL is exceeded again for that same parameter, the Discharger's status changes to Level 2 as of July 1 of the following year, requiring submittal of a Level 2 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.

Discharges to Section 303(d) Impaired Water Bodies

The 2014 Industrial General Permit requires that if a receiving water is listed under section 303(d) as impaired for a certain parameter and a Total Maximum Daily Load (TMDL) has been adopted, a facility discharging the same pollutant for which a TMDL has been adopted must also analyze its samples for that pollutant in addition to the parameters required to be sampled pursuant to the SIC code-related specifications. "New Dischargers" applying for coverage under the permit who will be discharging to a 303(d) water body must demonstrate that the facility will not cause or contribute to the impairment. Data and/or information submitted to substantiate this requirement must be prepared by a QISP. 

SWPPP Requirements

Significant revisions to a SWPPP must be certified and submitted to the State Water Board via SMARTS within 30 days of the revision. Revisions determined not to be significant must be submitted via SMARTS every three months in the reporting year. Unfortunately, without providing any real guidance, the State Water Board left it up to the Discharger to determine what is "significant," noting only that it is not easy to draw a line between the two. If in doubt, a conservative approach—although not necessarily required—would better protect against claims of permit violation and reduce exposure for civil penalties.

The SWPPP now must include an expanded list of "Industrial Materials" handled at the facility, with typical quantities, handling frequency and location of the material within the facility. The 2014 Permit includes a revised definition of the materials that must be listed, which is fairly ambiguous and potentially extremely broad. It appears to be immaterial that these Industrial Materials may have no potential exposure to storm water. 

Compliance Groups

Group monitoring is no longer permitted under the 2014 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. 

Discharges to Groundwater

Facilities that may otherwise be subject to the permit, but who have submitted a valid certified Notice of Non-Applicability (NONA) prepared and signed by a California licensed professional engineer, are not subject to permit requirements. A facility is entitled to claim "no discharge" through the NONA if (1) the facility is engineered and constructed to contain the maximum historic precipitation event so that there is no discharge of industrial storm water to waters of the United States, and no discharge to groundwater that has a direct hydrologic connection to waters of the United States; or (2) the facility is in a location not hydrologically connected to waters of the United States. Determining whether a discharge to groundwater has a direct hydrological connection to waters of the United States could be a highly complicated and expensive task.

Action Required

In light of these significant and complicated changes, it would be prudent for facilities operating under an existing Industrial General Permit, and those which now need to file an NOI or a NEC, to take steps now to assure that their SWPPP, BMPs, employee training, and storm water management practices will comply with the new Industrial General Permit requirements by July 1, 2015. Failure to comply with any of the requirements subjects Dischargers to potential enforcement actions by state regulators and to citizen suits seeking corrective actions and civil penalties up to $37,500 per day per violation and, in the case of citizen suits, potential liability for the citizen-enforcer's attorney's fees too.

If you have any questions or need assistance in evaluating your legal obligations under the 2014 Industrial General Permit, please contact either of us. We would welcome the opportunity to assist you in navigating the new rules.

Allen Matkins' nationally recognized Environmental and Natural Resources Group assist clients with air, surface water, groundwater, soil and sediment quality, hazardous waste, and other regulatory compliance and permitting matters; environmental due diligence, risk management and related environmental issues in real property transactions; Brownfield redevelopment projects; private litigation involving contaminated sites; regulatory enforcement matters; citizen suits; Superfund sites; Proposition 65; and a host of other matters involving the wide range of federal and state environmental laws.

Nichols Sandi L Sandi L. Nichols
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Allen Matkins, founded in 1977, is a California-based law firm with more than 200 attorneys in four major metropolitan areas of California: Los Angeles, Orange County, San Francisco and San Diego. The firm's core specialties include real estate, real estate and commercial finance, bankruptcy and creditors' rights, construction, land use, natural resources, environmental, corporate and securities, intellectual property, joint ventures, taxation, employment and labor law, and dispute resolution and litigation in all these matters. More...