The California State Water Resources Control Board (State Board) has finally released for review a draft general permit for surface water discharges from industrial sites. The current permit governing these sites expired in 2002 and we have waited more than 8 years for the current draft. Flows regulated by the permit will include storm water flows as well as any non-storm water discharges (e.g., dewatering, landscape irrigation runoff, and leaked materials).
After having gone through a protracted reissuance process for the construction site general permit, the new draft of the industrial permit incorporates several of the new requirements from that permit into the present draft—items that will significantly change the design and management of most industrial facilities in California, that will add significant compliance costs to these facilities, and that will potentially expose these facilities to significant risk of fines from either agency enforcement actions or citizen-initiated lawsuits.
The permit governs most industrial facilities throughout the state, including manufacturing facilities, oil and gas facilities, mines, recycling facilities, steam electric power generation facilities, transportation-related facilities (including vehicle maintenance shops), sewage treatment plants, confined animal feeding operations (e.g., dairies), and landfills.
Most significantly, the draft permit deemphasizes the current approach of protecting water quality through iterative implementation of structural and nonstructural Best Management Practices (BMPs). Instead, the draft permit introduces numeric standards for storm water runoff—something most California industrial facilities have never had to comply with before now. The numeric effluent limits have been borrowed from U.S. EPA benchmark numbers that were not intended to be applied as not-to-exceed limitations, and many of the proposed limits represent “one-size-fits-all” standards that appear to lack robust scientific and economic justification and fail to consider natural background conditions throughout the state.
Key new requirements for industrial sites contained in the draft permit include:
- Numeric effluent and numeric action levels. Taken from the U.S. EPA’s industrial storm water permit, the proposed numeric action levels include between 4 and 22 pollutants (or more depending upon the industry). The action levels are benchmarks, exceedance of which will trigger increased monitoring and increased application of pollution controls. After several exceedances of the action levels, the levels will morph into not-to-exceed effluent limits, any exceedance of which (by any amount) will subject the discharger to enforcement actions. Mandatory minimum penalties can also apply for certain exceedances.
- Electronic Filing of Documents. All permit-related documents will be required to be submitted electronically to the State Board, including applications for coverage, Storm Water Pollution Prevention Plans (SWPPPs), sampling data, exceedance notices for numeric limits, annual compliance reports, etc. The State Board will make electronically submitted information available to the public on the Internet. Applications for permit coverage will be subject to public comment and possible rescission by local water boards.
- Increased inspections and sampling. Inspections under the draft permit will increase to more than 70 inspections per year (compared with 14 under the current permit). Sampling requirements will increase from 2 sampling events per year under the current permit to at least 4 sampling events (or many more if numeric action levels are exceeded). Options for cost-saving group monitoring are not available under the new draft permit.
- Minimum Best Management Practices. Unlike the prior permit that allowed dischargers to self-select appropriate pollution controls, the new permit establishes specific minimum BMPs. Failure to implement consistently the minimum requirements will be considered permit violations. Minimum requirements include emphases on cover and containment of materials, diversions of run-on from adjacent sites and non-industrial areas, daily inspection and cleaning of outdoor material or waste handling containers, erosion and sediment control, and spill prevention and clean up.
- Minimum training requirements. Certain documents under the new draft permit must be prepared by Qualified SWPPP Developers (having a specific registration such as registered civil engineers), and pollution controls must be implemented by a Qualified SWPPP Practitioner. Both of these individuals must have completed State Board-approved training courses.
Once adopted, penalties for violations of the permit can be as high as $25,000 to $37,500 per day per violation in either state or federal court, with six- and seven-figure penalties not uncommon. Mandatory minimum penalties will apply for certain types of violations (e.g., exceeding numeric effluent limits and filing reports late).
State Board staff has indicated their intent to have the permit finalized within the next several months. Industrial facility operators have a substantial stake in this permit, as its terms will affect not only management budgets, but also will dictate specific operational and facility design elements.
Additionally, the potential liability for administrative enforcement or citizen-initiated lawsuits is extremely high, with any violation of the permit subjecting site owners to possible fines and other penalties.
The State Board will be accepting public comment on the draft permit at a hearing on March 29th and written comments are due no later than April 18th.
Please contact Shanda Beltran if you have questions regarding the draft permit, would like assistance preparing comments on the permit, or would like help developing a compliance program for your company.