California's Storm Water Regulation: A Practical Review of the Regulations and Their Enforcement
by William W. Funderburk, Jr. and Jonathan L. Blinderman

© Copyright 1993 by Matthew Bender & Co., Inc. Reprinted with permission from the November 1993 issue of the CALIFORNIA ENVIRONMENTAL LAW REPORTER (Matthew Bender).


Mr. Funderburk is an environmental attorney with Radcliff, Rose & Frandsen, a full-service law firm with offices in Los Angeles, San Francisco, Hawaii, and Washington, D.C. He is involved in California Storm Water Regulations and most other aspects of Radcliff, Rose & Frandsen's diverse environmental practice. Mr. Funderburk has a degree in engineering from Yale University and a degree in law from Georgetown University Law Center. Mr. Funderburk serves by appointment of Insurance Commissioner John Garamendi on the California Environmental Liability Insurance Task Force (1992- ). He was also one of three individuals selected by the U.S. Environmental Protection Agency to advise the Agency on implementation of Phase II of the storm water program.


I. Introduction

Whoever thought that a company could be fined or jailed for failure to obtain a permit for rain water or snow melt runoff? That is what the California State Water Resources Control Board ("State Board") effectively provided when it adopted the California General Industrial Stormwater Permit ("General Permit") on November 19, 1991 [Water Quality Order No. 91-13-DWQ, as amended by Order No. 92-12-DWQ (September 17, 1992)]. Now, one year into implementation of the General Permit, many "industrial" facilities either do not know or are evading the law. The repercussions against clients that fail to meet these requirements can be severe.

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 70's, 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 through storm water runoff into the forefront. Recently, an emphasis on controlling pollution found in storm water discharges has arisen. California has implemented its own regulations to control these discharges. This article provides an overview of the California regulations. The article will first briefly discuss which facilities must comply with the California regulations. Next, the article will briefly review the requirements of the regulations. Finally, the article will emphasize how the regulations will most likely be enforced in the future, and what attorneys can do to help clients avoid potential liability under these regulations.

II. Background

From 1978 through 1993, 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 U.S. bodies of water contain 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 allow group applications for 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.]. 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. 1 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 pending further rulemaking [57 Fed. Reg. 60444 (Dec. 18, 1992)].

This article is aimed at the regulation of storm water from industrial facilities that resulted from the 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. 91-13-DWQ, as amended by Water Quality Order No. 92-12-DWQ)]. 2 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 General Permit. 3

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:

(1) Facilities subject to storm water effluent limitations guidelines, new source performance standards or toxic pollutant effluent standards under 40 C.F.R. subchapter N;
(2) Specific manufacturing facilities;
(3) Oil and gas/mining facilities; 4
(4) Hazardous waste treatment, storage, or disposal facilities;
(5) Landfills, land application sites, and open dumps;
(6) Recycling facilities;
(7) Steam electric power generating facilities;
(8) Transportation facilities;
(9) Sewage or waste water treatment works; and
(10) 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.2]. 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. 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:

"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." 40 C.F.R. § 122.2.

California extends this definition of "point source" to include the discharge of "sheet flow" through a drainage system or other conveyance [see Fact Sheet for California General Permit, P.1]. California's definition of "point source" is expansive enough to cover almost all facilities, so that arguing that storm water does not discharge through a "point source" is extremely difficult.

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 discharge 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 linked to interstate commerce, including wetlands [see 40 C.F.R. § 122.2]. 5

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. 6 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 Requirements Contained in California's General Permit

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

(1) Filing Notice of Intent (``NOI'') with State Board

Facilities subject to the regulations should have submitted NOIs by March 30, 1992. 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.

(2) 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.

(3) Preparation of Visual Monitoring Plan

The Visual Monitoring Plan consists of three separate sections. First, a facility must visually inspect all storm water outfalls twice during the dry season (May through September) to observe and/or test for the presence of non-storm water discharges [see General Permit, Section B(5)(b)].

Second, facilities must conduct wet season visual observations once per month during the wet season (October through April) [see General Permit, Section B(5)(c)]. All facilities must conduct visual observations of storm water discharge locations during the first hour of one storm event per month that produces significant storm water discharge in order to observe the presence of floating and suspended materials, oil and grease, discoloration, turbidity, and odor. "Significant storm water discharge" is defined as a continuous discharge of storm water for approximately one hour or more.

Third, each regulated facility must conduct an annual site inspection [see General Permit, Section B(5)(a)]. Facilities must conduct a minimum annual inspection to identify areas contributing to a storm water discharge associated with industrial activity and to evaluate whether measures to reduce pollutant loadings identified in the SWPPP are adequate and properly implemented in accordance with the terms of the General Permit, or whether additional control measures are needed. Further, each facility must certify, based on the annual site inspection, that the facility is in compliance with the requirements of the General Permit and the facility's SWPPP. This includes certifying that no non-storm water discharges take place. Records must be kept of each visual observation on site for five years after the inspection.

(4) Sampling and Analysis of Storm Water Discharge

Each facility must collect and analyze samples of storm water discharge from at least two storm events during each wet season which produces significant storm water discharge [see General Permit Section B(5)(d)]. 7 Storm water should 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. Additionally, storm water must be analyzed for toxic chemicals or other pollutants, if a toxic chemical or other pollutant is likely to be present in storm water discharge in significant quantities. 8

Facilities may receive an exemption from sampling by one of three methods [General Permit Section B.9]. A facility may submit a self-certification application to the appropriate Regional Board if there is no exposure of industrial areas to storm water; a facility may receive certification by a local agency that an adequate storm water pollution prevention plan has been submitted; or a facility may receive an exemption directly from the appropriate Regional Board if the Board determines that the facility has implemented an adequate storm water pollution prevention plan.

(5) Submission of Annual Report to Appropriate Regional Board

The General Permit requires that an Annual Report be filed with the appropriate Regional Board each July 1. The Annual Report must contain a number of documents, including annual site inspection certification, a synopsis of visual monitoring results, and the results of the storm water sampling.

(6) 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-DW), 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 discharges, 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. 9

(7) Implementation of Best Management Practices at Facilities

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, levers and berms, and retention ponds.

Effluent limitations do exist for specific facilities already regulated by Federal rules [see Attachment 1 to the General Permit, Section 1]. Further, the State Board Order establishing these regulations specifically includes the effluent limitations, and toxic and effluent standards established in Sections 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. Thus, read very narrowly, the General Permit may require numeric limitations. One could argue persuasively however, that this section of the State Board Order is superseded by the State Board Order finding that BMPs are suitable because numeric limitations are infeasible [See also 40 C.F.R. § 122.44(k)].

Moreover, the General Permit requires that dischargers comply with water quality standards found in the California Ocean Plan [State Water Resources Control Board Resolution No. 90-27 (March 22, 1990)], and the California Inland Surface Waters Plan and Enclosed Bays and Estuaries Plan [State Water Resources Control Board Resolution No. 91-33 (April 11, 1991)]. This creates another source of potential effluent limitations for certain storm water dischargers. However, the California Inland Surface Waters Plan and Enclosed Bays and Estuaries Plan have recently been invalidated by a Sacramento court [Water Quality Control Cases, Case No. JC2610 (Sacramento County Superior Court, October 15, 1993)].

The General Permit expires November 19, 1996. It is likely that new industry specific regulations will be implemented at that time.

V. Enforcement of the Storm Water Regulations

Compliance with the California storm water regulations has been abysmal. According to information discussed at the American Public Works Association/State Water Resources Control Board Storm Water Quality Task Force meeting on October 9, 1993, only 10,000 facilities have thus far filed NOIs. The Natural Resources Defense Council (NRDC) has estimated that of the 10,000 industries subject to these regulations in the Los Angeles Region, little more than 2,000 have submitted their NOI.

Because of the failure of the majority of facilities subject to these regulations to file a NOIs, enforcement of these regulations will most likely begin by the seeking out of companies that have failed to file a NOI. After this process, enforcement for violation of other aspects of the regulation, such as discharge of non-storm water into storm drains, will begin. There are three enforcement mechanisms that will most likely be 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 private citizen groups through 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 the 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]. Citizens 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 are not subject to citizens suits. Gwaltney v. Chesapeake Bay Foundation [(1987) 484 U.S. 49, 108 S.Ct. 376].

Relief sought in citizens 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)].

Citizens suits for violations of storm water regulations have just begun to take on importance in the enforcement of these regulations. On July 27, 1993, the NRDC sent notices of intent to sue to 12 industries in Southern California for violations of storm water regulations. Since that time, eleven additional facilities have received Intent to Sue Notices. 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. 10

Perhaps the most overlooked process for enforcement of storm water regulations is the 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. 11 Municipalities will also be eager for Regional Boards to actively enforce storm water regulations to facilitate the municipalities' meeting their own requirements.

VI. Proper Response to Storm Water Enforcement Actions

If an enforcement action is brought against a client for violations of storm water regulations, litigation is almost never 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.

Additional problems arise if a citizens group brings a private citizen enforcement action. One of the best methods for dealing with citizens groups is to bring a client's facility into compliance with the regulations. Once a facility is in compliance, citizens groups lose standing to bring an action for past violations. See Gwaltney, above. 12

Enforcement of these regulations by municipalities represent special problems. This is because municipalities may be more restrictive 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.

VII. 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 the Santa Monica Bay Restoration Project, as well as the recent NRDC lawsuits to enforce storm water regulations, has brought storm water issues to the forefront.

The State Board has indicated that it will now begin vigorous enforcement of storm water regulations, especially against those facilities that have failed to file NOIs. Both the State and environmental groups are presently compiling large databases of noncompliers in order to begin the process of enforcement.

Given these facts, it is clear that it is much more efficient for a facility that falls under the regulations to come into compliance now, rather than wait to be named in an enforcement action in the future. Further, if problems arise in the future, the State and Regional Boards tend to give more leeway to facilities that show an active effort in complying with the regulations as opposed to facilities with their "heads in the sand."

Non-complying facilities must be leery. As Mitch Bernard of the NRDC said, ``[environmental activists] are serving notice, if you are a city or an industry covered under the Municipal or Industrial Permit and you are not complying with its terms, we intend to find you, sue you, and seek a court order compelling you to comply immediately and completely.''

ENDNOTES

1 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.

2 A separate state wide general permit has been issued for construction activities.

3 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]. Facilities that meet this description must comply with this permit. The requirements of the Santa Clara permit are almost identical to the General Permit.

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, they must comply with the General Permit. Section B.8 of the General Permit provides specific requirements for inactive mines.

5 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].

6 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.

7 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.

8 The General Permit does permit group monitoring if specific requirements are met. Twenty percent (minimum of four) of "representative" group members 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.

9 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.

10 One recent sixty day notice letter from an environmental group contained a footer along the lines of C: WP51 dollarca.ses!

11 Orange County has already proposed an ordinance to permit local law enforcement and safety agencies to enforce storm water regulations.

12 Recent testimony by Steven Herman of the EPA before the United States Senate Subcommittee on Clean Water, Fisheries and Wildlife supports an amendment to legislatively overturn Gwaltney; thus exposing companies to litigation over wholly past violations of the CWA. Testimony of Steven Herman, July 27, 1993.

 

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