August 20, 2013
Another draft of the state’s Industrial General Storm Water Permit (IGP) is on the street for public review and comment. While many have lost count (and perhaps interest) in the numerous drafts circulated in the last decade since the existing permit was to have expired, the regulated community should take note: this may finally be it.
If adopted, the July 19 draft IGP would be the culmination of fits and starts, drafts and re-drafts, and a lengthy dialogue between regulators, the regulated community, and environmental organizations. After initial proposals sparked strong opposing opinions over the prospect of numeric effluent limits (NELs), the State Water Resources Control Board (SWRCB) stepped back and convened a Blue Ribbon Panel of Experts to address the feasibility of NELs in storm water permits. Meanwhile, the courts took issue with certain aspects of the general permit format, prompting agencies to develop more prescriptive requirements. The SWRCB then issued general storm water permits for construction and small municipalities before returning to the IGP.
Notably, getting to the current proposal involved several drafts and dramatic shifts in thinking on some issues. For example, NELs were included in an earlier draft, upon the Blue Ribbon Panel’s conclusion that NELs were feasible for some industrial categories, but they were later abandoned after a court invalidated NELs in the Construction General Permit in December, 2011. Group monitoring was initially eliminated, but now reappears as a “Compliance Group” option. New training and certification requirements were proposed, but have been scaled back and simplified in the wake of protests over the complexity and controversy surrounding similar provisions in the Construction General Permit.
Without doubt, the proposed IGP would spell significant change for storm water programs at regulated industrial facilities. Facility operators will find a familiar framework, but at least three times the text detailing new or significantly revised requirements. The new elements and more significant changes are summarized below.
Facility operators must continue to implement Best Management Practices (BMPs) and monitor runoff at their facilities in accordance with a Storm Water Pollution Prevention Plan (SWPPP.) However, they will have less latitude in selecting BMPs, as the proposed permit prescribes specific “Minimum BMPs” and, when they are inadequate, “Advanced BMPs.” Minimum BMPs are non-structural and include a lengthy list in the categories of good housekeeping, preventative maintenance, spill prevention and response, material handling and waste management, erosion and sediment controls, employee training, and recordkeeping. Advanced BMPs are primarily structural and include exposure minimization, storm water containment and discharge reduction, and treatment.
Permittees will also continue monitoring under the proposed permit, but at different frequencies. First, dry weather observations must be conducted more frequently - monthly now instead of quarterly. Wet weather observations would be required four times annually (when sampling), rather than monthly as the current permit requires.
Sampling and Analysis
Storm water sampling will be required twice as often, with two sampling events in each six-month time frame (July-December and January-June) To improve the chances that four events are sampled, the “qualifying storm event” has been redefined as an event that produces runoff and was preceded by two days of no runoff. In addition, samples can be collected up to four hours after runoff begins or the facility opens. Currently, sample collection must be completed within one hour of the beginning of discharge following three days of no discharge. Failure to collect four samples from each drainage basin will be a violation of the permit (assuming the occurrence of four qualifying storm events over the monitoring year.)
All dischargers must test for total suspended solids, oil & grease, pH, and any other potential pollutants or industry-specific parameters, much as they do now, although specific conductance has been eliminated. In addition, if a facility discharges to a water body listed as impaired on the 303(d) list, samples must be tested for the impairing pollutant if there is a potential that the pollutant is in the facility’s runoff. New monitoring requirements under the Ocean Plan are applicable to facilities discharging directly to the ocean.
Numeric Action Levels and Exceedance Response Actions
In contrast to the current permit, which provides little direction in the assessment of analytical results, the proposed permit establishes a whole new set of requirements to evaluate, report and act on monitoring data. First, the analytical results for each parameter must be assessed relative to Numeric Action Levels, or NALs, which are the “Benchmarks” in the EPA’s Multi-sector Industrial Permit. Analytical results for each parameter must be averaged over the monitoring year and compared against the Annual NAL. Instantaneous maximum NALs also exist for total suspended solids, oil & grease, and pH.
The first time test results exceed an NAL, the facility’s status changes from “Baseline” to “Level 1,” and it must perform a Level 1 Exceedance Response Action (ERA) Evaluation and submit a Level 1 ERA Report. The second time the same NAL is exceeded, the facility’s status is elevated to “Level 2,” triggering a Level 2 ERA Plan and submission of a Level 2 Technical Report. Permittees may be able to return to Baseline status if the NAL is not exceeded for four consecutive samples and other requirements are met.
Training and Certification
As mentioned above, the proposed permit establishes a training requirement for Qualified Industrial SWPPP Practitioners (QISPs). This is new, as the current permit has no such requirement, but much less complex than in earlier drafts where three levels of QISPs were assigned responsibility for numerous activities. The SWRCB now proposes just one type of QISP and, in contrast to the Construction General Permit, no particular credentials are needed for eligibility. Any person can complete an approved training course and register as a QISP with the SWRCB, although Professional Engineers and geologists will have the option of a self-study course. The better news, particularly for facilities with experienced storm water personnel, is that a QISP is not needed until an NAL exceedance triggers an ERA.
Facilities of the same industry type that have similar types of activities, pollutant sources and pollutant characteristics may form a Compliance Group under the tutelage of a QISP. The QISP will inspect each facility once annually at a minimum, assist with compliance, and prepare consolidated ERA reports for participants with Level 1 status for the same parameter. Compliance Group participants need to sample their facilities only twice each year.
The proposed permit requires substantially more information to be submitted to the SWRCB, including the SWPPP and ERA plans and reports, in addition to the Annual Reports. Sampling results must be reported to the State within 30 days rather than with the Annual Report. And notably, everything must be submitted electronically to the Storm Water Multi-Application Reporting and Tracking System (SMARTS).
No Exposure Certification and Notices of Non-Applicability
Regulated facilities that can certify that storm water is not exposed to industrial pollutants at their facility may avoid implementing the permit by annually submitting a No Exposure Certification (NEC) and paying a fee (currently $242). The SWRCB estimates perhaps 20,000 facilities in the state would qualify for filing the NEC.
Facilities that may generate storm water associated with industrial activity are not required to enroll in the IGP if they do not discharge to a Waters of the U.S. This may be the situation where runoff is retained on site, or where runoff has no hydrological connection to Waters of the U.S. For the first time, the SWRCB proposed a standard for establishing an exemption from the permit through a Notice of Non-Applicability, accompanied by a technical report prepared by a licensed professional engineer.
Summary and Looking Ahead
Overall, the long period of wrangling over new and more detailed provisions seems to have produced a permit that many find much improved over the existing permit, former drafts, or both. Yet, questions and concerns continue to arise as practitioners consider this proposed permit. While some may not be inclined to pick it up until the implementation date draws near, those who review it soon have an opportunity to offer comments and prompt further revisions or clarifications. The SWRCB will receive oral comments at a hearing on August 21 in Sacramento, and will accept written comments until noon on September 12. Web based workshops will occur on August 9 and August 14. Adoption is tentatively scheduled for early 2014, and at present, the implementation date is January 1, 2015.
A note to those who may be considering facility renovation or construction: Before finalizing any plans, it will be beneficial to review the new requirements. Certain site design features and other facility considerations could significantly reduce the cost and effort required to implement this and subsequent industrial storm water permits, as well as improve compliance and reduce the risk of enforcement for years to come.