Industrial Stormwater Compliance:

Lessons, Questions, and Anecdotes from a Public Interest

Attorney

Marcel Gesmundo, Esq.Gesmundo Law Office

Outline

I. Approaches to the environment and advocacyvs.

Approaches to environmental law / regulation

II. Clean Water Act (CWA)

III. Stormwater and the CWA

IV. Stormwater Enforcement under the CWA

I. Approaches to the environment and advocacy

(industry, environmentalists, consultants)

vs.

Approaches to environmental law / regulation

(industry, environmentalists, consultants)

II. THE CLEAN WATER ACT (CWA)

BACKGROUND• Passed by Congress in 1972

• Purpose: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter –

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;

(33 USC § 1251) (partial list)

• Created the NPDES permitting scheme

THE CLEAN WATER ACT (CWA)

BACKGROUNDMethod of Protecting Waterways: General prohibition except as allowed by the CWA (usually in compliance with a NPDES permit).

General prohibition: 1. Discharge of a pollutant2. From a point source3. To a water of the United States4. Except as allowed by the Clean Water Act

THE CLEAN WATER ACT (CWA) BACKGROUND

The Permitting Scheme

Permits authorize discharge of pollutants from point sources to US waters, but provides a two-fold protection of US waters:

1. The Equalizer: Technology-Based Effluent Limitations (TBELs) a. Numericalb. Narrative

2. The Baseline: Water Quality-Based Effluent Limitations (WQBELs)a. Numericalb. Narrative

THE CLEAN WATER ACT (CWA)

BACKGROUNDThe Permitting Scheme

Technology Based Effluent Limitations (TBELs):

TBELs are performance standards only and the permitting authority generally cannot require the use of a particular technology to achieve the limit. Instead, it is left to the discharger to decide what approach it will take—the use of a particular technology or the implementation of pollution abatement—to comply with the permit requirements.

Numeric TBEL – limits discharge of particular pollutant to a measurable limit.

Narrative TBEL – requires dischargers to implement certain measures to reduce pollutants.

THE CLEAN WATER ACT (CWA)

BACKGROUNDThe Permitting Scheme Water Quality Based Effluent Limitations (WQBELs)

• Apply when technology Apply when technology--based limits are insufficient to meet WQS.

WQBELs ensure that water quality standards in specific water bodies maintained to ensure that designated uses for that water can be maintained by ensuring that the aggregate of pollution entering such water bodies does not exceed levels that jeopardize those uses:

Examples of uses: public water supply, protection and propagation of fish, shellfish, and wildlife, recreation, agriculture and industry, navigation, other uses.

Numeric TBEL – limits discharge of particular pollutant to a measurable limit.

Narrative TBEL – requires dischargers to implement certain measures to reduce pollutants.

III. STORMWATER AND THE CWA

STORMWATER

• NPDES program includes an industrial stormwater stormwater permitting component.• 11 categories of stormwater discharges associated with

discharges associated with industrial activity.

• If facility discharges or has the potential to discharge stormwater to a municipal separate storm sewer system (MS4) or directly to waters of the United States, then that facility requires authorization under a NPDES industrial stormwater permit.

•Oregon Industrial Stormwater General Permits• 1200-Z• 1200-COLS

III. CWA CITIZEN ENFORCEMENT

In a nutshell: citizens may enforce the CWA by filing suit in the absence of meaningful state or federal enforcement.

Prerequisite to filing: providing the facility and regulators written notice of the violations and the intent to file suit in no less than 60-days.

• The 60-day waiting period has been interpreted as a means to allow the alleged violator time to fix violations or for regulators to seek enforcement.

CWA CITIZEN ENFORCEMENT

Citizens are intended as a supplementary mechanism for enforcement in the absence of regulatory enforcement.

Concerns over regulatory enforcement:• lack of resources necessary• susceptible to political pressure• are problem solvers rather than enforcers (client vs.. crook

approach)• often proceed under statutes with lesser penalties and less

power.• OVERALL: more willing to settle for too little.

CWA CITIZEN ENFORCEMENT

CITIZEN ENFORCEMENT – BIG IMPACT?

• Approach differs?• Interprets the permits more rigorously;• Seek court ordered injunctive relief (either stop operating or

discharging);• See maximum penalties ($37,500 per day per violation);• Attorney fees (may exceed penalty)

• Standard Settlement Terms:• Compliance;• Deferred penalties;• Supplemental Environmental Project;• Attorney fees

CWA CITIZEN ENFORCEMENTSTORMWATER

1. Clear Rules (Easy Violations to Prove)2. Vague Rules (Require Interpretation)

CWA STORMWATER CITIZEN ENFORCEMENT

(Lessons and Questions)Clear Rules (Easy Violations to Prove)

• Relatively boring issue.• Examples• Failure to monitor• Failure to report• Failure to create action plans• Adequately describe the site

CWA STORMWATER CITIZEN ENFORCEMENT

(Lessons and Questions)Vague Rules (Require Interpretation)• Much more difficult questions for regulators,

industry

Example 1

Rule: “The SWPCP must be prepared by a person knowledgeable in stormwater management and familiar with the facility.” 1200-Z Sch. A.6.a.

Question: What does it take to be knowledgeable in stormwater management?

PE?Registered environmental health specialist?Chemistry degree?

Example 2

Rule: Before a new discharge begins discharging to impair waters, it must “Provide data and other technical information that demonstrates that the discharge is not expected to cause or contribute to an exceedance of the water quality standard for which the waterbody is impaired at the point of discharge to the waterbody if the pollutant(s) for which the waterbody is impaired are likely to be present at the site and DEQ has not issued a TMDL for the pollutant(s)..” 1200-Z Sch. A.1.a.iii.

Question: what is adequate to “demonstrates that the discharge is not expected to cause or contribute to an exceedance of the water quality standard”?

Example 3

Narrative Technology-Based Effluent Limits. 1200-Z Sch. A.1.

Questions:

Is a narrative TBEL truly a limit?

How you know whether a TBEL is sufficient?

Example 3.a

Rule: The permittee must “Minimize exposure of manufacturing, processing, material storage areas, including loading and unloading, disposal, cleaning, maintenance and fixed fueling areas, to rain, snow, snowmelt and runoff.” . 1200-Z Sch. A.1.a.

Question: What does minimize mean? To what extent?

Example 3.b

Rule: “To the extent technologically available and economically practicable and achievable in light of best industry practice, the permit registrant must :

i. Locate materials and activities indoors or protect them with storm resistant covers if stormwater from affected areas discharges to surface waters. Acceptable covers include, but are not limited to, permanent structures such as roofs or buildings and temporary covers such as tarps;

ii. Use grading, berming, or curbing to divert stormwater away from these areas and prevent stormwater contamination;

iii. Store all hazardous substances (see Schedule D.3, Definitions) within berms or other secondary containment devices to prevent leaks and spills from contaminating stormwater. If the use of berms or secondary containment devices is not possible, then store hazardous substances in areas that do not drain to the storm sewer system;

iv. Locate materials, equipment and activities in containment and diversion systems, including the storage of leaking or leak-prone vehicles and/or equipment awaiting maintenance, to prevent leaks and spills from contaminating stormwater;

v. Use drip pans or absorbents under or around leaking or leak-prone vehicles/equipment or store indoors. Drain fluids from equipment and vehicles prior to on-site storage or disposal;

vi. Perform all cleaning operations indoors, under cover or in bermed areas that prevent runoff and run-on and also captures overspray;

vii. Clean up spills or leaks promptly using absorbents or other effective methods to prevent discharge of pollutants and use spill/overflow protection equipment, and

viii. Ensure that all washwater drains to a proper collection system such as a closed-loop system or sanitary sewer and not discharged to the stormwater drainage system unless the washwater is an authorized non-stormwater discharge listed in condition 7 of the Permit Coverage and Exclusion from Coverage section of the permit.

Questions:

What does “to extent technologically available and economically practicable and achievable in light of best industry practice” even mean?

On a industry wide scale?

BPJ?

Do you think it is sufficient for a SWPCP to simply reiterate the permit language?

Does the permit actually require that permittee explain how it will comply with TBELs and WQBELs?

Questions:

What does “to extent technologically available and economically practicable and achievable in light of best industry practice” even mean?

On a industry wide scale?

BPJ?

Do you think it is sufficient for a SWPCP to simply reiterate the permit language?

Does the permit actually require that permittee explain how it will comply with TBELs and WQBELs?

Example 4

Rule: “The permit registrant must not cause or contribute to a violation of instream water quality standards as established in OAR 340-041.” 1200-z sch. A.4.

Questions: 1. How does anyone know whether whether a WQS has been

violated?2. How difficult is it to link a facility to that WQS violation?

BONUS DISCUSSIONCOPPER AND 1200-z Permit

Benchmarks set based on 10% risk of violating WQS.

Questions:

1. Does the permit allow for violations of WQS for copper?

2. Does the permit shield facilities from a citizen suit for violating WQS?

3. With respect to copper, does the 1200-z permit run afoul of the CWA’s permitting scheme