January 27, 2015
By Mathew Swain
Existing compliance may not be sufficient
After 13 years of deliberation and drafting, the new Industrial General Stormwater Permit takes effect July 1. The new permit requires major changes in the way that businesses engaged in industrial activities plan for, monitor and control pollution in rainwater runoff. Companies should prepare for these changes to put themselves on the best footing when the new permit takes effect. As they say, “the devil is in the details,” but here is a quick overview of the major changes in the new permit and the key issues companies should start thinking about.
New minimum BMPs
Companies must update their Stormwater Pollution Prevention Plans (SWPPPs, pronounced “swips”) by July 1. The new permit specifies “minimum” best management practices (BMPs) that must be discussed in the SWPPP and implemented at the facility.
Minimum BMPs are commonly known as “nonstructural controls,” and include good housekeeping, training and equipment maintenance. To the extent that minimum BMPs do not adequately control stormwater pollution, the SWPPP must also include appropriate “advanced” BMPs. These are generally “structural controls,” such as berms, engineered covers for material and equipment, and treatment technologies.
Changes to monitoring
The new permit does away with the old permit’s requirement for sampling stormwater during the “wet season.” Going forward, facilities must collect four stormwater samples a year — two each July 1 to Dec. 31 and Jan. 1 to June 30.
The permit also describes the pollutants that a facility must monitor for based on its industrial classification.
However, the permit also specifies additional monitoring requirements based on whether the receiving water that the facility discharges to is designated as “impaired” under the Clean Water Act for one or more pollutants. If the facility discharges a pollutant that the receiving water is impaired for, the facility must monitor for that pollutant too.
New numerical limits
The biggest change to the new permit is the incorporation of numeric action limits (NALs) to gauge the effectiveness of a facility’s BMPs to control stormwater pollution. These are not binding permit limits that will result in a violation if the facility exceeds them. However, exceeding an NAL does require a facility to take an “exceedance response action” as specified in the permit to improve existing BMPs or implement new ones.
For certain pollutants — pH, oil and grease, and total suspended solids — the permit specifies an “instantaneous” NAL that triggers action if exceeded in any one of the four required annual samples. The permit also specifies “average” NALs for all pollutants — other than pH — that trigger action if exceeded based on the samples collected during the year.
All facilities will start at “baseline” when the new permit takes effect on July 1. If an instantaneous or average NAL for a pollutant is exceeded in a year, the facility will be designated as “Level 1” for that pollutant and take prescribed steps to prepare a report and modify their BMPs and SWPPP. If the facility has no further exceedances for that pollutant, it will drop back down to baseline status.
However, if a Level 1 facility has a subsequent exceedance of an NAL for the same pollutant, then it moves up to a permanent “Level 2” designation for that pollutant, triggering more onerous assessment and implementation requirements.
Businesses should also be aware that all permit-related documents, including the SWPPP, monitoring results and action plans, must be posted on a publicly accessible and searchable online database known as SMARTS, which is run by the State Water Resources Control Board.
Facilities that have been able to fly below the radar and avoid public scrutiny will no longer be able to do so.
Revise or exempt
For companies that already comply with the current stormwater permit, the general requirements of the new permit should be familiar. However, given the substantial changes in the new permit, facilities operators should consider preparing for compliance sooner than later.
In particular, a facility’s SWPPP must be revised to meet the new permit’s requirements as of July 1. There is no grace period.
While updating the SWPPP, the facility should also consider reviewing prior monitoring results to determine if it is at risk of exceeding of an NAL for one or more pollutants if similar results are obtained under the new permit. This will provide an opportunity to identify activities or areas that are problematic for stormwater management and to take steps improve existing BMPs or devise new ones to reduce pollutant levels before the new permit takes effect. That can improve the chance of not moving up from baseline status to Level 1 after the first year.
Facilities may also consider taking a step back to evaluate whether measures can be taken to become exempt from the permit. A “no exposure” exemption is available if it can be demonstrated that all industrial activities at the facility take place under cover, so no stormwater comes into contact with raw materials, industrial activities or finished products.
Another option is to demonstrate that the permit does not apply because the facility is engineered to contain all stormwater — i.e., not discharge — or that stormwater discharged from the site does not discharge to a “water of the United States.” Both exemptions require a facility to submit documentation to the state water board in support of the claim.
It is often heard said that “what is old becomes new again.” In the case of the new Industrial General Stormwater Permit , the changes are extensive and significant, such that existing compliance practices may no longer be sufficient. Take heed and plan ahead.
Mathew Swain is a senior associate in the environmental law department at Farella Braun + Martel, a law firm with offices in San Francisco and St. Helena.