California's Revised Industrial Storm Water Permit: A Practical Review of the Regulations and Their Enforcement
by William W. Funderburk, Jr.

© Copyright 1998 by Matthew Bender & Co., Inc. Reprinted with permission from the June 1998 issue of the CALIFORNIA ENVIRONMENTAL LAW REPORTER (Matthew Bender).



I. Introduction

Ten years after the U.S. Congress mandated controls in storm water runoff, the California State Water Resources Control Board ("State Board") adopted a revised California General Industrial Stormwater Permit ("General Permit") on April 17, 1997. The General Permit rescinded and replaced a previously issued permit [see Water Quality Order No. 91-13-DWQ (November 19, 1991), as amended by Order No. 92-12-DWQ (September 17, 1992)].1

In 1972, the Clean Water Act ("CWA") mandated that the United States Environmental Protection Agency ("EPA") regulate industrial storm water discharges to waters of the United States through point sources [33 U.S.C. § 1311]. Regulations could be implemented through the National Pollution Discharge Elimination System ("NPDES") Permit Program established by § 402 of the CWA [33 U.S.C. § 1342]. Throughout the 1970s, the EPA did not concentrate on discharges in storm water but instead concentrated its efforts in controlling pollution found in process waters from industrial facilities and discharges from publicly owned treatment works ("POTWs"). In the last 15 years, pollutant discharges attributable to process waters and POTWs have been greatly reduced, bringing discharges from storm water runoff into the forefront. California has implemented its own regulations to control these discharges. This article provides an overview of the General Permit for industrial dischargers. 2 The article will first briefly discuss which facilities must comply with the revised General Permit. Next, the article will briefly review changes made to the revised General Permit. Finally, the article will discuss the present pattern of enforcement and future trends in enforcement of the General Permit.

II. Background

From 1978 through 1983, the EPA provided funding and guidance for a comprehensive study of urban runoff from commercial and residential sources. This program was known as the Nationwide Urban Runoff Program ("NURP"). The NURP study demonstrated that storm water runoff into US bodies of water contains a large number of conventional and toxic pollutants [55 Fed. Reg. 47991 (Nov. 16, 1990)]. The high level of pollutants in storm water discharges was attributable to storm water runoff and illicit connections to storm sewer systems [55 Fed. Reg. 47991 (Nov. 16, 1990)].

While the 1972 amendments to the Federal Water Pollution Control Act ("Clean Water Act" or "CWA") prohibit the discharge of any pollutant to navigable waters from a point source unless authorized by a permit issued under the NPDES program, the EPA initially exempted most storm water discharges from NPDES permit requirements. This exemption, promulgated in 1973, was overruled in a court decision that held that EPA could not exempt point source discharges [NRDC v. Train (D.D.C. 1975) 396 F. Supp. 1393, aff'd sub nom. NRDC v. Costle (D.C.Cir. 1977) 568 F.2d 1369]. Numerous rulemakings followed this case until 1985, when EPA initiated a proposal to require industrial storm water discharge permits [50 Fed. Reg. 32548 (1985)]. On February 4, 1987, Congress passed the Water Quality Act of 1987 ("WQA"). Section 405 of the WQA added section 402(p) to the CWA, requiring industrial and municipal dischargers of storm water to obtain a permit before October 1, 1992 [33 U.S.C. § 1342(p)]. EPA was required to promulgate final regulations for permitting storm water discharges "associated with industrial activity" and discharges from large municipal separate storm sewer systems no later than February 4, 1989. The WQA amendments also required industrial and large municipal dischargers to submit, by February 4, 1990, permit applications that would implement the technology and water quality based standards of sections 301 and 402 of the CWA.

On December 4, 1987, the court granted EPA's request that, in response to these amendments, its 1985 storm water regulations be remanded for further rulemaking [NRDC v. EPA, No. 80-1607 (D.C. Cir. Dec. 4, 1987)]. On December 7, 1988, EPA proposed regulations to require industrial facilities and municipalities to obtain permits for storm water discharges. On November 16, 1990, the EPA published final regulations that establish application requirements for storm water permits [40 C.F.R. § 122.26 et seq.]. These discharges are known as Phase I discharges. Phase II would dramatically increase the scope of the storm water program. It includes all institutional (e.g., hospitals, schools) sources (under 5 acres), all commercial sources, small construction activities, gas stations, and municipalities with populations under 100,000.

The regulations originally exempted "light" industrial facilities with no storm water exposure, but the Ninth Circuit Court of Appeals disallowed this exemption in NRDC v. EPA [(9th Cir. 1992) 966 F.2d 1292, 1992 CELR 303]. 3 The Ninth Circuit did not reject the exemption, but found that the EPA had not sufficiently justified exempting such facilities, and remanded that portion of the regulations for further rulemaking. The EPA responded to this decision by reserving these exemptions (Phase II sources) pending further rulemaking [57 Fed. Reg. 60444 (Dec. 18, 1992)].

In response, EPA issued a final rule amending the NPDES permitting requirements to include Phase II sources [60 Fed. Reg. 40230 (Aug. 7, 1995)]. All Phase II sources must be permitted by August 7, 2001. More recently, EPA proposed a revamped rulemaking for Phase II sources -- those discharges that under the CWA require permits after October 1, 1992 [63 Fed. Reg. 1536 (Jan. 9, 1998)]. EPA's proposed rule exempts many sources and allows for a broad no-exposure exemption.

This article is aimed at the regulation of storm water from Phase I industrial facilities that resulted from the original rulemaking process. Extensive regulations also exist for the regulation of storm water discharge by municipalities and construction projects.

The federal regulations allow authorized states to issue general permits or individual permits to regulate industrial storm water discharges. The State Board has elected to issue a state wide general permit that will apply to all industrial storm water discharges requiring a permit ("General Permit") [Water Quality Order No. 97-02-DWQ]. To obtain authorization for continued and future industrial storm water discharge, owners, or operators when the owners do not operate the facility, must comply with the requirements of the General Permit.

III. Industrial Facilities That Must Comply

The California General Permit is intended to cover all new or existing discharges of industrial storm water from facilities as required by federal regulations to obtain a permit [40 C.F.R. § 122.26(b)(14)].

To determine whether a facility must comply with California's storm water regulations, the following three-factor test must be applied:

(1) Is the facility an industrial facility as defined in the regulations?
(2) Does the facility discharge storm water through a "point source" as defined under Federal and State regulations? and
(3) Does the water discharge into a water of the United States?

Facilities that must comply with the regulations are either identified by Standard Industrial Classification ("SIC") Code or by narrative description within the language of the General Permit itself. There are 10 basic groups of industrial facilities that require permitting under the General Permit:

  • Facilities subject to storm water effluent limitations guidelines, new source performance standards or toxic pollutant effluent standards under 40 C.F.R. subchapter N;
  • Specific manufacturing facilities;
  • Oil and gas/mining facilities; 4
  • Hazardous waste treatment, storage, or disposal facilities.
  • Landfills, land application sites, and open dumps;
  • Recycling facilities;
  • Steam electric power generating facilities;
  • Transportation facilities;
  • Sewage or waste water treatment works; and
  • Manufacturing facilities where materials are exposed to storm water.

Specific narrative or SIC codes are contained in the General Permit to determine whether a facility fits any of the above descriptions.

It is important for a practitioner to establish which SIC code a client's facility falls under. This is not always an easy process, since SIC codes were developed for use in the classification of establishments by type of activity in which they are engaged for economic data collection. Because SIC codes were developed for economic purposes and not environmental purposes, applying the correct code for environmental law purposes is difficult, and often illogical. It is also important to note that the State Board tends to interpret what a facility's SIC code is liberally to bring the facility under the General Permit. California regulators have determined that the General Permit extends to all facilities described above, whether the activity is primary or auxiliary to the owners or operator of the facility [Fact sheet for California General Permit, p. II]. 5 It is therefore important for a practitioner to look at a facility through the eyes of a state regulator, and not through the eyes of an advocate. For instance, some school districts and other municipally-owned facilities where the "service area" population exceeds 100,000, must obtain industrial permits and coverage. 6 Although it may be possible to win a classification battle in the long run, compliance with the storm water regulations will often be much less expensive for the client.

After it has been determined that a facility is the type that falls under storm water regulations, the next factor is whether storm water discharges from the facility via a "point source." The federal rules define "point source" as follows [40 C.F.R. § 122.2]:

Any discernable, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fisher, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.

The definition of "point source" has been interpreted broadly to include any conveyance (road or otherwise) of storm water [Sierra Club v. Abston Construction Co., Inc. (5th Cir. 1980) 620 F.2d 41].

The final factor to determine whether a facility must comply with the regulations is whether the water discharges to waters of the United States. Such a discharge must either be direct, or through a municipal separate storm sewer system. If a facility does not discharge into the waters of the United States, or discharges through a combined storm and sanitary sewer system, it is not subject to regulation. The definition of "waters of the United States" includes almost all waters that can be lined to interstate commerce, including wetlands [see 40 C.F.R. § 122.2]. 7

Thus, most facilities will have discharge of water to waters of the United States. If storm water discharge from a facility is to a combined storm/sanitary sewer, the regulations do not apply to that facility. 8 If discharge always evaporates on-site or percolates into ground water, the facility is not subject to the regulations. This includes the use of retention ponds to collect storm water discharges. It is important to note, however, that such a facility may be subject to Federal or California hazardous waste treatment storage and disposal requirements.

As can be seen by the descriptions above, the regulations apply to a large number of industrial and municipality-owned facilities. If any question exists as to whether a facility must comply with the storm water regulations, a practitioner should request clarification from the appropriate Regional Water Board.

IV. Overview of Revised General Permit

If a facility must comply with the storm water regulations, there are five basic requirements of the General Permit.

A. Filing Notice of Intent ("NOI") with State Board

Facilities subject to the regulations should have submitted NOIs by March 30, 1992. To comply with the General Permit, existing discharges must submit a NOI for existing discharges to continue coverage under the General Permit. New facility operators must submit a NOI at least 14 days prior to the beginning of operations. Facilities that have not filed their NOI are currently out of compliance with the storm water regulations, and are potentially liable for civil and criminal fines. The State Board has not been penalizing late NOI filers up until the present time, but this may soon change. Given that either a $250 or $500 annual fee must be paid to the State as part of the General Permit, late NOI filers now realize a windfall in not having complied with the regulations in a timely manner by not having to pay previous years' permit fees. The State Board will eventually have to address this inequity and, at a minimum, begin to back charge new filers for annual permit fees not paid.

B. Preparation of Storm Water Pollution Prevention Plan

Each facility subject to the regulations must keep a Storm Water Pollution Prevention Plan ("SWPPP") on site for review by facility employees, state regulators, and interested third parties [see General Permit, Section A]. Many facilities will hire an outside environmental consultant to complete a SWPPP, and some "fill-in-the-blank" SWPPPs are available. It is important to note that SWPPPs are public documents that may be viewed by anyone making a request to the appropriate Regional Board.

The revised General Permit SWPPP requirements are different than the previous General Permit. Practitioners must be aware of these distinctions and seek technical assistance, if necessary. For instance, the site map in the SWPPP must be more detailed [General Permit, Section A(4)]. Further, the SWPPP now requires a more rigid assessment of potential pollutant sources and best management practices [General Permit, Sections 7 and 8].

Finally, the revised General Permit incorporates the annual comprehensive site compliance evaluation [General Permit, Section 9]. The evaluation must be followed within 90 days by appropriate revisions to the SWPPP.

After facilities are able to identify pollutants present in their storm water discharges, facilities must implement Best Management Practices (BMPs) to reduce pollutant discharges. Although many BMPs -- such as employee training, spill prevention, and clean up procedures -- are inexpensive and should be utilized at all facilities, facilities that experience significant problems may be required to implement more expensive BMPs by their Regional Board. Examples of these more expensive BMPs include oil/water separators, levees and berms, and retention ponds.

C. Development of a Monitoring Program

The Monitoring Program consists of three separate sections. The deadline for completing the Monitoring Program is October 1, 1992 [General Permit, Section B.1.a]. First, a facility must visually inspect all storm water outfalls quarterly to observe and/or test for the presence of non-storm water discharges [see General Permit, Section B(3)]. Quarterly observation periods are January-March, April-June, July-September, and October-December [General Permit, Section B(3)(c)]. The facilities must revise the SWPPP to reflect these observations.

Second, facilities must conduct wet season visual observations once per month during the wet season (October through May) [see General Permit, Section B(4)]. All facilities must conduct visual observations of storm water discharge locations during the first hour of one storm event per month in order to observe the presence of floating and suspended materials, oil and grease, discoloration, turbidity, odor, and source of any pollutants. Visual observations are only required of storm water discharges that occur during daylight hours that are preceded by at least three working days within storm water discharge and that occur during scheduled facility hours. Third, each regulated facility must collect and analyze samples of storm water discharge from (1) the first storm event of the wet season, and (2) at least one other storm event of the wet season [see General Permit Section B(5)(a)]. 9 Storm water must always be analyzed for: (1) pH; (2) total suspended solids; (3) specific conductance; and (4) total organic carbon. Oil and grease may be substituted for total organic carbon ("Base Parameters").

Additionally, storm water must be analyzed for toxic chemicals or other pollutants ("Additional Parameters"), if a toxic chemical or other pollutant is likely to be present in storm water discharge in significant quantities. 10 The General Permit allows dischargers to eliminate these additional pollutants if the pollutants are not detected in significant quantities after two consecutive sampling events [General Permit, Section B(5)(c)(ii)].

Finally, more sampling parameter requirements apply that are dependent on a facility's SIC code [General Permit, Table D ("Table D Parameters")]. A limited exemption applies to Table D Parameters [see General Permit, Section B(5)(c)(iii)].

Facilities may receive an exemption from sampling by several methods. First, facilities may reduce the number of storm water discharge locations if the storm water discharge is substantially identical and is properly documented. Facility operators may either (1) collect samples from a reduced number of substantially identical drainage areas, or (2) collect and combine samples from each substantially identical area [General Permit, Section B(7)(a)]. Second, a facility may submit a no exposure certification ("NEC") application to the appropriate Regional Board if there is no exposure of industrial areas to storm water [General Permit, Section B(12)(a)(i)]. The NEC must be submitted each year with the Annual Report and only exempts the operator from sampling and analysis.

Third, a facility may receive certification by a local agency that determines that the facility operator has demonstrated compliance with the terms and conditions of the General Permit. Fourth, a facility may receive an exemption directly from the appropriate Regional Board. The Regional Board may exempt facility operators whose facilities infrequently discharge storm water to waters of the United States or that demonstrate compliance with the terms of the General Permit [General Permit, Section B(12)(a)(ii)].

In addition, facility operators that have collected at least six samples at any time (including compliance with the old permit), may unilaterally reduce to two the total number of samples to be taken during the remainder of the General Permit term (through April 17, 2002) assuming an appropriate demonstration is made to the Regional Water Board. This exemption does not require Regional Water Board approval, but does require documentation. Facilities must recertify annually for this exemption [see General Permit, Section B(12)(6)].

D. Submission of Annual Report to Appropriate Regional Board

The General Permit requires that an Annual Report be certified and filed with the appropriate Regional Board each July 1. The Annual Report must contain a number of documents, including the annual site inspection certification from the SWPPP, a synopsis of visual monitoring results, and the results of the storm water sampling. 11 See General Permit, Section B (14).

E. Elimination of All Non-Storm Water Discharges to Storm Water System

All non-storm water discharges associated with industrial activity into the storm water system must be eliminated [See Water Quality Order No. 91-13-DWQ, as amended by Water Quality Order No. 92-12-DWQ, Part A]. This does not include air conditioning condensate, fire control water line testing, landscape irrigation, and other non-industrial discharges. In most cases, this does include water used to wash vehicles, pavements, or buildings. In specific circumstances, a Regional Board may grant an extension at times to eliminate non-storm water discharges if a facility must make significant structural changes to eliminate non-storm water discharge, or the facility has applied for, but not yet received , a NPDES permit for the non-storm water discharges [General Permit, Section A.6]. Such an extension can be for up to three years with adequate justification. 12

V. Standard for Compliance

The General Permit presents many pitfalls for practitioners when determining the standard for compliance after meeting all of the paperwork and procedural requirements. Some industrial facilities must meet specific numeri- cal criteria for their storm water discharges. These numeric standards apply to industrial activities that are customarily performed outdoors (such as cement manufacturers, petroleum refineries, mining, and other activities) [see Attachment 1 to the General Permit, Section 1].

The State Board Order establishing the General Permit specifically includes the effluent limitations, and toxic and effluent standards established in Section 208(b) (areawide waste treatment management plan), 301 (effluent limitations), 302 (water quality related effluent limitations), 303(d) (water quality standards), 304 (information and guidelines), 306 (national standards of performance), and 403 (ocean discharge criteria) of the CWA [General Permit, p. 2]. Thus, read very narrowly, the General Permit may require numeric limitations.

One could argue persuasively, however, that this section of the General Permit is superseded by other State Board Orders [see, e.g., In the matter of Citizens for a Better Environment, et al. (Water Quality Order No. WQ 91-03) (May 16, 1991) and In the Matter of Natural Resources Defense Council, Inc. (Water Quality Order No. WQ 91-04) (May 16, 1991) (finding that BMPs are suitable because numeric limitations are infeasible); see also 40 C.F.R. 122.44(k)]. The State Board also reasons that the BMP approach is consistent with EPA's "Interim Permitting Approach for Water Quality Based Effluent Limitations in Storm Water Permits" (Aug. 1, 1996).

The complexity of determining what standard applies to storm water discharges is exacerbated by other dependent General Permit requirements. CWA Sections 301 and 402 require that control of discharge of pollutants utilize the best available technology economically achievable (BAT) for toxic and non-conventional pollutants and the best conventional pollutant control technology (BCT) for conventional pollutants.

The question is, what is best? No cases in the Ninth Circuit have addressed this issue in the context of storm water discharges. At least one court, however, has interpreted the meaning of economically achievable [See Chemical Manufacturers Ass'n v. E.P.A. (5th Cir. 1989) 870 F.2d 177, 205, decision clarified on reh'g 885 F.2d 253, cert. den., 495 US 910, 110 S.Ct. 1936]. Under the General Permit, BMPs are deemed adequate substitutes for numeric limitations and are deemed BAT/BCT for storm water discharges.

Once the practitioner has determined, in consultation with a technical expert, whether the client has met all of these standards, two additional requirements must be met. First, the General Permit requires that discharges "shall not adversely impact human health or the environment" [General Permit at p. 4]. If the discharger is not located immediately adjacent to a water body, it may be necessary to conduct a risk assessment to determine whether storm water discharges "adversely impact human health or the environment." Although costly, such a risk assessment may prove significant in battling lawsuits from private plaintiffs or government agencies.

Second, the General Permit requires that discharges from facilities not have ``caused or contributed'' to an adverse impact on human health and environment or to a violation of recovery water quality standards [General Permit, Section C (2)]. Again, if issuing an opinion on whether a facility is in compliance with the General Permit, the practitioner is faced with a difficult decision. How is "cause or contribute" defined? This section should be reviewed if issuing such an opinion.

The General Permit provides dischargers with an innovative enforcement shield, requiring the discharger to submit a report within 60 days of determining that discharges have caused or contributed to exceeding the applicable water quality standard. To qualify, the discharger must implement BMPs at the facility that achieve BAT/BCT [See General Permit, Sections (C)]. If the Regional Board approves the report, the exceedance of water quality standards will be allowed to continue.

This enforcement shield, unique to the new General Permit and not present in the old General Permit, has sparked controversy. An environmental group recently challenged a permit issued by a Regional Water Board with provisions identical to the General Permit [In the Matter of the Petition of Environmental Health Coalition, Water Quality Order No. WQ 98-01 (Jan. 22, 1998) (available from author)]. The State Board rejected the environmental group's petition, but interestingly interpreted several areas of the General Permit. The State Water Board not only upheld the permit enforcement shield but also ordered that the permit at issue should be interpreted to require the control of discharges that "contribute" to violations of water quality standards, so long as the contributions are "substantial" (more than de minimis) contributions. In other words, based on the State Board order, only discharges which substantially contribute to violations of water quality standards must be controlled.

The General Permit expires April 17, 2002. It is likely that new industry specific regulations will be implemented at that time.

VI. Enforcement of the Storm Water Regulations

A. Political and Regulatory Landscape

Compliance with the California storm water regulations has improved. The improvement in the compliance program has been the result largely of the State Water Board's vigorous efforts to search out companies that have failed to meet the minimum requirement, such as not filing a NOI. For some industries, the compliance rate is as low as 10 percent; for others, it is close to 95 percent. 13 The State Water Board received a $300,000 grant from EPA to fund a non-filers study. The State Water Board intends to release the results of the non-filers study on the Internet in the very near future.

Enforcement by the nine Regional Water Boards has been aggressive in some cases but absent in others. The economic downturn and business failures of the early 1990s prompted many agencies, particularly those in southern California, to adopt a hands-off, no enforcement approach. While welcome by many industrial facilities as sign of government common sense, environmentalists have been critical. One environmental activist group, Heal-the-Bay, conducted a storm water enforcement study over the past year. The study culminated in a published document, the amended version of which is entitled "Omission Accomplished: The Lack of a Los Angeles Regional Water Board Enforcement Program 1992-1997" (February, 1998). The Heal-the-Bay study presents an environmentalist's view of the lack of regulatory enforcement for one Regional Water Board. Nevertheless, it has resulted in political pressure to increase regulatory storm water enforcement. Not surprisingly, the Administration's Clean Water Action Plan announced on February 19, 1998, by President Clinton echoed his State of the Union speech to focus attention on "polluted runoff." Accordingly, attempts to scale back EPA's enforcement authority or funding for Clean Water Act programs, such as H.R. 961 put forth by the Republican Congress in 1995, have been met with strong public opposition.

Indeed, the environmental pendulum seems to be swinging toward the environmentalist side in California. On February 18, 1998, Assembly member Sheila Kuehl (D-Encino) introduced Assembly Bill 2019, the Storm Water Enforcement Act of 1998. This legislation is important because it represents the first major legislative attempt in California to stiffen enforcement for violators, specifically for the General Permit. It proposes to amend the Porter-Cologne Water Quality Control Act to grant the State Board new enforcement powers specifically for storm water permit violations and mandates minimum fines for failure to comply with the storm water permit. It also requires regulators to make available to the public the names of storm water permit violators within a short period of time. The Act is scheduled to be voted on by the full assembly within the next month, and passed out of the Environmental Health and Safety Committee by unanimous vote.

Because of the failure of many facilities subject to these regulations to file NOIs, enforcement of these regulations has begun by the seeking out of companies that have failed to file a NOI. Enforcement for violations of other aspects of the regulations, such as discharge of non-storm water storm drains, has been taken up largely by citizen groups, known pejoratively as "bounty hunters."

B. Sources of Enforcement Actions

There are three enforcement mechanisms that have been utilized against facilities out of compliance with storm water regulations. These three mechanisms are: (1) enforcement by government agencies through criminal and civil actions; (2) enforcement by the private citizen enforcement section of the CWA; and (3) enforcement and further regulation by local municipalities.

There are three options for enforcement of the regulations by the EPA and other government agencies; administrative orders, civil actions, and criminal prosecutions [CWA Section 309, 33 U.S.C. § 1319]. States authorized to implement storm water regulations have access to all the enforcement options under CWA. Thus, the State Board or Regional Boards may enforce storm water regulation through an administrative order, civil action, or criminal prosecution. Fines can be imposed for up to $25,000 per day, and persons found guilty in a criminal prosecution are subject to imprisonment [CWA Section 309, 33 U.S.C. § 1319].

After 60 days notice, any citizen or citizens group may file an action under the CWA [33 U.S.C. § 1365]. Citizen suits may only be brought for either continuous or intermittent violations with a reasonable likelihood that the past polluter will continue to pollute in the future; violations wholly in the past prior to filing the complaint are not subject to citizen suits [Gwaltney v. Chesapeake Bay Foundation (1987) 484 US 49, 108 S.Ct. 376].

However, in dismissing a citizen suit brought under another environmental statute, a March 1998 US Supreme Court decision casts doubt on whether the Gwaltney analysis may apply [Steel Co. v. Citizens for a Better Environment (1998) 118 S.Ct. 1003, 1998 CELR 79 (under Federal Emergency Housing and Community Right-to-Know Act citizen group could not maintain lawsuit for past violation only because US Const., Art. III, Sec. 2, standing requirements for redressability not met)]. Under Steel, citizen groups may have two threshold burdens to overcome -- standing and jurisdiction. Regardless, unless a practitioner has taken care to ensure that the discharger meets all standards (procedural, as well as narrative BAT/BCT standards), it will be difficult to assert that any violations are "wholly past" or that the relief requested does not produce ``redress'' for the group's injuries.

Relief sought in citizen suits takes the form of civil penalties and injunctions to force compliance with the regulations. Although damages are not available, the CWA specifically authorizes attorneys fees. However, awarding attorneys fees is in the discretion of the district court [33 U.S.C. § 1365(d)].

Citizen suits for violations of storm water regulations have taken on importance in the enforcement of these regulations. Over 100 lawsuits have been filed against industrial facilities over the past six years. Given that there are approximately 40,000 facilities that have failed to file NOIs, environmental groups will be able to name a large number of facilities in a citizen suit for failure to meet these regulations. Because it is common for violators to negotiate with environmental groups to reach an acceptable compromise after a notice of intent to sue has been sent, environmental groups stand to profit by bringing such large numbers of suits against violators. 14

It is important not to overlook enforcement by local municipalities against individual facilities. The reason for this is that municipalities do not have direct jurisdiction to enforce the General Permit itself; but because municipalities are forced to meet specific discharge standards themselves, they are permitted to take action separate from storm water regulations to meet their requirements under the storm water rules.

Municipalities, in attempting to meet their own municipal permit requirements, may require industrial facilities to take actions well beyond those required by the regulations promulgated under the CWA. 15 Municipalities will also be eager for Regional Boards to actively enforce storm water regulations to facilitate the municipalities' meeting their own requirements.

VII. Proper Response to Storm Water Enforcement Actions

If an enforcement action is brought against a client for violations of storm water regulations, litigation may not be a practical solution. Instead, negotiation with the enforcement entity, whether it be a state agency, citizens group, or municipality, can often be the most effective method for bringing a client's facility into compliance in the most efficient manner. Technical assistance from an environmental or regulatory consultant can also be helpful in developing a plan to bring a facility into compliance. With passionate citizen groups, however, the best defense may be a good offense. Practitioners should structure any litigation, discovery or trial plan around the elements or standards set forth above for a General Permit violation. Due consideration must be given to the following:

  • Determining whether the discharger has met all procedural requirements or obtained appropriate certification for exemptions or exceptions; "causes or contributes" to a water quality violation; has implemented BMP that meet BAT/BCT; and does not "adversely impact human health or the environment."
  • Approaching the Regional Water Board and requesting a review and prosecution of an enforcement action, because the CWA bars citizen enforcement where EPA (acting pursuant to CWA § 319) or the state (acting pursuant to a state law "comparable to" CWA § 319) is diligently prosecuting or has assessed a penalty against the violator.
  • Obtaining a certification of compliance which may include some risk evaluation.

Additional problems arise if a citizen group brings a private citizen enforcement action. One of the best methods for dealing with citizen groups is to bring a client's facility into compliance with the regulations. Once a facility is in compliance, the citizen group may lose jurisdiction or standing to bring an action for past violations [See Gwaltney and Steele, above]. Enforcement of these regulations by municipalities represent special problems. This is because municipalities may be more effective than the General Permit. It is often necessary to hire an environmental consultant to determine the most efficient method to bring a facility into compliance with any requirement set forth by a municipality. Such information is crucial in negotiating a reasonable outcome with such a municipality.

VIII. Conclusion

Although storm water regulations have been contemplated for over a decade, they just now are receiving attention from the public. The recent publicity of studies by Heal-the-Bay, as well as recent NRDC and the Keeper lawsuits to enforce storm water regulations, has brought storm water issues to the forefront.

The State Board has finally begun vigorous enforcement of storm water regulations, especially against those facilities that have failed to file NOIs. The advent of public disclosure of violators on the Internet counsels most practitioners to promote compliance to clients.

Endnotes

1 The California Regional Water Quality Control Board, San Francisco Bay Region has issued a separate permit for industrial facilities located in Santa Clara County that discharge into San Francisco Bay or its tributaries [Order No. 92-011, as amended by Order No. 92-116]. The General Permit also replaces this permit.

2 The State Board also regulates construction activities of five acres or more and operations that are part of a larger common plan of development or sale under a separate permit unit [Water Quality Order No. 92-03 (Aug. 20, 1992)]. The construction activities permit is in the renewal process, and the State Board has scheduled a hearing to approve a new permit on June 8, 1998.

3 Inactive coal mines reclaimed under the Surface Mining Control and Reclamation Act [30 U.S.C. §§ 1201, 1328] and inactive non-coal mines reclaimed under applicable Federal or State laws after November 16, 1990, were also excluded from the permit requirements by the EPA [55 Fed. Reg. 48033, 48065-66]. The Ninth Circuit Court of Appeals upheld this exemption in American Mining Congress v. EPA [(9th Cir. 1992) 965 F.2d 759, 1992 CELR 323].

4 Inactive mines that have not been reclaimed must obtain a permit. American Mining Congress, above. Practitioners must be aware that if a client owns land that contains an inactive mine, the client must comply with the General Permit. Section B.8 of the General Permit provides specific requirements for inactive mines.

5 See Memorandum from Elizabeth Miller Jennings, Senior Staff Counsel, to Archie Matthews, Division of Water Quality, "Industrial Stormwater Discharges--Use of SIC Codes" (Jan. 31, 1992) (available from author).

6 For a discussion of the State Board's position on this issue, see Memorandum from Elizabeth Miller Jennings, Senior Staff Counsel, to Bruce Fujimoto, Division of Water Quality, "Exemption of Small Municipalities from Industrial Storm Water Requirements" (June 4, 1996) (available from author).

7 The definition of "waters of the United States" is even extended to include normally dry arroyos through which water may flow, where such water will ultimately end up in public waters [United States v. Phelps Dodge Corp. (D. Az. 1975) 391 F. Supp. 1181].

8 There are very few combined storm water/sanitary sewer systems in California, so that a facility must be certain that their discharge enters such a system before claiming that the regulations do not apply to their facility.

9 Samples must be taken from all discharge locations unless it is established and documented that samples from representative locations are substantially identical [General Permit Section B.11]. This is important since significant cost savings may be obtained by reducing the number of sampling locations.

10 The General Permit does not permit group monitoring if specific requirements are met. Twenty percent of "representative" group members (minimum of four) may sample, representing a significant cost savings to group members. In order to form a group, a Group Monitoring Plan must be filed with the State Board and the appropriate Regional Boards by August 1st of each year.

11 Visual monitoring during dangerous weather conditions is excepted. In addition, a facility operator may collect a sample after the first hour if the purposes of the General Permit would be satisfied [General Permit, Section (b)(8)].

12 Two caveats for the practitioner on elimination of non-storm water discharges. First, if a facility seeks and obtains an extension to discharge non-storm water -- e.g., wash water from wash racks -- this extension may not apply if a municipality or locality adopts its own prohibition. Second, many companies employ clarifiers that also recycle non-storm water on site which may be subject to another regulatory regime -- e.g., depending on the contamination level of the waste stream, some facilities using oil/water separators must comply with hazardous waste laws.

13 The State Water Board recently determined that only 40 wineries out of 700 are in compliance with the storm water permit, whereas most auto dismantlers, scrap recyclers and foundries have met the minimal procedural requirements.

14 Fines in excess of $2 million have been levied and it is not uncommon for defendants to pay at least $50,000 not including structural improvements.

15 Orange County, Los Angeles County, and Sacramento County have ordinances to permit local law enforcement and safety agencies to enforce storm water regulations.

 

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