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Washington State Issues New Stormwater Permit for Industrial Facilities

November 20, 2009

Washington’s Department of Ecology (“Ecology”) has issued a new Industrial Stormwater General Permit (“New Permit” or “Permit”) that places additional requirements on stormwater dischargers at over 1,100 industrial facilities in the state. Ecology issued the New Permit on October 21, 2009. Anyone wishing to appeal the New Permit must do so by November 20, 2009. The Permit takes effect on January 1, 2010 and will remain in effect for five years.

The New Permit requires – for the first time – that all industrial facilities sample and meet aggressive compliance benchmarks for discharges of copper. This will likely require many businesses – particularly those in the metals, scrapyard, and vehicle recycling industries[1] – to consider installing stormwater treatment systems.[2] The New Permit sets a copper benchmark that is lower than existing ambient rainwater concentrations at some facilities, lower than existing discharge monitoring data for many facilities, and lower than the amount of copper Ecology has reported in stormwater runoff from public highways.[3] The Permit also retains stringent restrictions on discharging zinc, another metal that has been very difficult for industrial facilities to control within Permit benchmarks.

The New Permit also sets new operational conditions, including mandatory quarterly vacuum sweeping, and modifies sampling and reporting requirements. Even facilities that have demonstrated clean stormwater under the Current Permit are required by the New Permit to conduct at least one year of additional sampling to confirm that their stormwater is still clean. As discussed in our article Proposed Washington State Stormwater Rule Imposes New Requirements for Industrial Dischargers, Ecology issued a draft of the New Permit earlier this year.[4] One favorable change made to the draft Permit is that the New Permit does not require staff or contractors performing stormwater inspections to complete a certification course prior to conducting inspections or preparing reports.

Background

Washington’s Industrial Stormwater General Permit requires industrial facilities to manage and monitor stormwater runoff to ensure that contaminated stormwater is not discharged to wetlands, creeks, rivers, and marine waters. The Permit is required under the federal Clean Water Act (“CWA”).[5] The Permit is also required under Washington’s Water Pollution Control Act (“WPCA”).[6]

The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[7] Accordingly, the CWA prohibits the discharge of a pollutant by any person, except in compliance with specified statutory sections.[8] Chief among these exceptions are discharges that occur in compliance with permits under the National Pollutant Discharge Elimination System (“NPDES”) in Section 402 of the CWA, which includes stormwater discharge permits.[9] EPA has delegated much of the responsibility for administering the NPDES program to the states.[10] In Washington, Ecology develops and administers NPDES stormwater permits. Thus, a stormwater permit issued by Ecology is both an NPDES permit under the CWA and a state waste discharge permit under the WPCA.

The Current Permit, which was set to expire in September 2007, was extended and will expire when the New Permit takes effect. The Permit has two primary components: sampling and response actions, and Stormwater Pollution Prevention Plan (“SWPPP”) implementation. The Current Permit establishes “benchmarks” and “action levels” for four core effluents (known as “parameters”) – turbidity, pH, zinc, and petroleum (oil and grease).[11] All facilities subject to the Current Permit are required to collect and analyze quarterly stormwater samples for the four key parameters and submit the results to Ecology. Facilities are required to perform certain adaptive management response actions in response to either benchmark or action level exceedances, including inspecting the facility and implementing additional source, operational, or treatment controls. The Current Permit also requires facilities to develop and implement a site-specific SWPPP, which identifies potential contaminant sources and describes best management practices (BMPs) designed to limit stormwater impacts.[12]

Key Elements of Ecology’s Proposed New Industrial Stormwater General Permit

Condition S3 – New SWPPP BMP Requirements. The New Permit sets forth some new mandatory requirements for industrial facilities’ SWPPPs. With regard to Operational Source Control Best Management Practices (“BMPs”), the New Permit mandates quarterly vacuum sweeping of paved surfaces,[13] and sets forth a series of mandatory BMPs for vehicle and equipment fueling.[14] With regard to Structural Source Control BMPs, the New Permit requires Permittees to perform all cleaning operations indoors, under cover, or in bermed areas that prevent stormwater runoff and run-on and capture any overspray.[15] Permittees must also drain any wash water to a collection system for further treatment or storage.

Condition S4 – New Sampling Requirements and Requalification for Consistent Attainment. The New Permit will eliminate the Current Permit’s confusing “qualifying storm event” requirement, making it easier to obtain and report stormwater sampling data. The New Permit requires a facility to sample within the first 12 hours of stormwater discharge or as soon as practicable after the first 12 hours.[16] This is a significant change from the Current Permit’s requirement that a facility sample within the first hour of discharge. The change will increase sampling by facilities that had struggled to capture a timely sample during business hours under the Current Permit.

The New Permit requires permittees to sample the “first fall storm event” each year. This means that facilities must sample “the first time after October 1st of each year that precipitation occurs and results in a stormwater discharge from a facility.”[17]

The New Permit will require all facilities, including facilities that have previously established “consistent attainment,” to requalify for discontinuing sampling stormwater for parameters that meet the Permit benchmarks. New Permit Condition S4.B.6.a provides that consistent attainment is achieved when: “[f]our consecutive quarterly samples, collected after the effective date of this permit, demonstrate a reported value equal to or less than the benchmark value …”[18] Some commentors on the proposed New Permit had requested that Ecology remove the “after the effective date” clause from proposed Condition S4.B.6 and allow facilities that have established consistent attainment under the Current Permit to carryover those results to the New Permit. This proposed modification would arguably save permit holders costs without any risk of harm to water quality. In the alternative, commentors had proposed that Ecology establish a standard for “confirmation” or “verification” of consistent attainment that is less onerous than two years of further sampling for a parameter that has previously met the consistent attainment standard. For example, Ecology could have required a facility to conduct two quarters of confirmation sampling and file verification that the facility has not made any substantive changes to its operations or facility that would impair its historic “consistent attainment.” This proposed modification would presumably address any concerns Ecology may have about the possibility of changed conditions and allow permit holders to verify ongoing compliance at lower cost than allowed under the New Permit as presently proposed.

Ecology chose something of a middle ground between the initial proposal and the comments by requiring requalification for “consistent attainment” but only requiring four quarters, instead of the eight quarters set forth in the proposed New Permit.[19] The New Permit also clearly states, however, that for purposes of tallying ‘consecutive quarterly samples’ if a facility does not take a sample but should have then the tally is reset to zero.[20] If a facility does not take a sample because there was no discharge during the quarter or the discharges occurred outside normal working hours or during unsafe conditions those quarters are not counted in the tally but it is also not reset to zero.[21] Given the eased sampling requirements facilities may find it difficult to establish that they could not sample and, therefore, it will be important for facilities seeking consistent attainment to stay prepared to sample as soon as possible each quarter.

Condition S5 - Elimination of Action Levels, New Mandatory Copper Parameter, and Parameter Changes for Metals, Air Transportation, and Timber Product Industries. The New Permit eliminates “action levels” that have driven enforcement under the Current Permit. This change means that Permit “benchmarks,” which are lower than the action levels in the Current Permit will operate as effective action levels, creating uncertainty about whether exceeding the benchmarks is a Permit violation and putting permit holders at greater risk of citizen suits. A benchmark is a pollutant concentration used as a permit threshold, below which a pollutant is considered unlikely to cause a water quality violation, and above which it may.[22] Under the Current Permit benchmark values “are not water quality standards and are not permit limits. They are indicator values.”[23] An action level is pollutant concentration above which a pollutant is considered likely to cause a water quality violation. It is also not, however, a numeric water quality standard. The “action levels” in the Current Permit are substantially higher than the “benchmarks” and have played an integral role in triggering corrective action and adaptive management.

The New Permit continues the Current Permit’s adaptive management approach that requires facilities to monitor stormwater quality against benchmarks. Like the Current Permit, under the New Permit “[b]enchmark values are not water quality standards and are not numeric effluent limitations; they are indicator values.” This definition departs, however, from a statement in Ecology’s June 3, 2009 draft Fact Sheet for the proposed New Permit, which also included the phrase “discharges that exceed a benchmark value are not automatically considered a permit violation or a violation of water quality standards.” The benchmarks trigger corrective action. If a facility exceeds benchmarks but does not comply with specific corrective action requirements in Special Condition S8 of the New Permit, it would be a Permit violation.

By eliminating action levels from the New Permit, Ecology has arguably made the benchmarks the effective action levels, in some instances at much lower levels than the action levels under the Current Permit. For example, the New Permit reduces the 50 NTU (“Nephalometric Unit”) action level in the Current Permit to what is effectively a 25 NTU action level (the same level as the turbidity benchmark under the Current Permit).

The New Permit also adds copper as a mandatory sampling parameter for all industrial facilities covered by the Permit.[24] This change is driven in part by efforts to protect endangered salmon. Ecology has set different benchmarks for facilities in Eastern and Western Washington. The Eastern benchmark is 32 µg/L and the Western benchmark is 14 µg/L. Notably, both benchmarks are lower than the Current Permit’s 63.6 µg/L copper benchmark for facilities that triggered copper sampling by exceeding the zinc benchmark and very substantially lower than the 149 µg/L copper action level in the Current Permit. Given that motor vehicles are a predominant source of copper, facilities that utilize trucks and forklifts in their stormwater exposed industrial activities or located near heavy urban traffic may find it particularly difficult to meet the copper benchmark in the New Permit. The new copper benchmark will also be particularly challenging for Washington’s 281 Permittees in the metals and automobile salvage and scrap industries, many of whom may be required to install active stormwater treatment systems for copper.[25]

The only parameter for which Ecology eased the benchmark is pH. For pH, Ecology changed the range from 6.0-9.0 standard units in the Current Permit to 5.0-9.0 standard units in the New Permit.[26]

The New Permit also makes significant changes for certain industries. Facilities within the Primary Metals, Metals Mining, Automobile Salvage and Scrap Recycling, and Metals Fabricating industries must sample for Total Petroleum Hydrocarbons (TPH).[27] Facilities within the Air Transportation industry must meet the New Permit’s 2.1 mg/L Ammonia benchmark, down from the 19 mg/L benchmark in the Current Permit.[28] Air Transportation facilities will also need to begin sampling for a new parameter, COD (Chemical Oxygen Demand), which is used to measure organic matter loading and has a 120 mg/L benchmark in the New Permit.[29] The New Permit also requires the Timber Products industry to begin sampling COD and meet the 120 mg/L benchmark and further begin sampling for TSS (Total Suspended Solids) and meet a 100 mg/L benchmark for that parameter.[30]

Condition S6 – Numeric Effluent Limits for Dischargers to 303 (d)-Listed Waters. Beginning July 1, 2010, facilities discharging to 303(d)-listed waterbodies that do not have an EPA-approved Total Maximum Daily Load (TMDL), will be required under the New Permit to comply with numeric effluent limits, including site-specific limits for certain parameters, and additional sampling requirements.[31] Facilities may request a compliance schedule for relief from Condition S6 but must do so in writing by January 31, 2010.

New Permit Condition S6 will make it very difficult for “new dischargers” to 303(d)-listed waterbodies to obtain coverage under the Industrial Stormwater General Permit. Such “new dischargers” are not eligible for coverage under the New Permit unless the facility either prevents all exposure to stormwater of the pollutants for which the waterbody is impaired, or documents that such pollutants are not present at the facility, or provides Ecology with data to support a showing that the discharge is not expected to cause or contribute to an exceedence of a water quality standard.[32] Facilities meeting these requirements are eligible for coverage if Ecology makes an “affirmative determination that the discharge will not cause or contribute to the existing impairment.”[33]

Condition S7 – New Requirement for Monthly Inspections. The New Permit increases the frequency of visual inspections from quarterly to monthly.[34] As a result, Ecology has eliminated the “Dry Season” and annual comprehensive inspections that are required under the Current Permit. This change will result in additional onsite record-keeping but facilities are not required to make these reports available to Ecology unless requested.[35]

Condition S8 - Modified Corrective Action Process. The proposed New Permit modifies the corrective action process from that expressed in the Current Permit. Corrective action is the “adaptive management” process of making incremental revisions to a facilities’ SWPPP, including additional BMPs to improve stormwater pollution control. Adaptive management “requires monitoring, evaluation, and reporting requirements to ensure that stormwater discharges are controlled by adequate BMPs that prevent violations of water quality standards.”[36]

Like the Current Permit, the New Permit has three levels of response. The New Permit changes the term “Level Response” to “Corrective Actions”, but retains the three level structure from the Current Permit. A Level One Corrective Action, involving inspections of the facility, possible remedial actions, and an internal summary report, is focused on operations source control BMPs and is required whenever sampling results exceed a benchmark. A Level Two Corrective Action, involving all the elements of a Level One Corrective Action, and adding a source control report to Ecology, is focused on structural source control BMPs and is required whenever any two quarterly sampling results in a calendar year exceed benchmark levels for any single parameter. A Level Three Corrective Action, involving all the elements of Level One and Level Two Corrective Action, and adding a requirement to consider and employ stormwater treatment or request a waiver from Ecology, is focused on treatment BMPs and is required whenever three quarterly sampling results in a calendar year exceed benchmarks levels. This is one fewer adverse sampling result than was necessary to trigger a Level Three Response under the Current Permit. Furthermore, the Current Permit only triggered a Level Two or Three Response when the applicable number of sampling results exceeded an action level, which in all instances was higher than the benchmarks in the New Permit. As a result, many more facilities will trigger Level Two and Three Corrective Actions than did so under the Current Permit.

Condition S9 – New Annual Reporting Requirement. The New Permit will require all Permittees to submit an Annual Report to Ecology.[37] The first reports under the annual reporting requirement, set forth in new Condition S9.B, will be due on May 15th each year, beginning in 2011. The annual reports must be on a form provided by or approved by Ecology and must include summaries of all Level 1, 2, and 3 Corrective Actions.

Condition S10 – Presumed Compliance. Under New Permit Condition S10.B, Ecology presumes a Permittee is complying with water quality standards unless discharge monitoring data or other site specific information demonstrates that a discharge causes or contributes to violation of water quality standards, when the permittee is:

  1. In full compliance with all permit conditions, including planning, sampling, monitoring, reporting, and recordkeeping conditions.
  2. Fully implementing storm water best management practices contained in storm water technical manuals approved by the department, or practices that are demonstrably equivalent to practices contained in storm water technical manuals approved by the department, including the proper selection, implementation, and maintenance of all applicable and appropriate best management practices for on-site pollution control.

This Condition expressly adopts language from RCW 90.48.555(6).

Significant Permit Changes Ecology Proposed But Did Not Adopt

No Level 4 Corrective Action. Ecology proposed but ultimately rejected adding a Level Four Corrective Action. A Level Four Corrective Action would have been triggered when a facility that previously triggered a Lever Two or Three Response under the Current Permit exceeded any benchmark value for any eight (8) monitoring periods or any facility exceeded any benchmark value for any twelve (12) monitoring periods. Under Level Four Corrective Action, the burden would have been on Ecology to act. Ecology could have:

  • Issued an administrative order to the facility requiring: a “receiving water study” of water quality in the water body to which the facility’s stormwater discharges; an engineering report of the facility’s stormwater discharges; additional water quality monitoring; additional pollution prevention and/or treatment measures at the facility, including but not limited to the installation of an “Active Stormwater Treatment System.”
  • Notified the permittee to apply for a “Modification of Permit Coverage.”
  • Notified the permittee to apply for and obtain an individual permit or obtain coverage under another more specific general permit.
  • Notified the discharger that coverage under the permit is no longer appropriate, and any actions required by the permittee in order for coverage under the permit to remain effective.
  • Terminated coverage under a general permit.

Any action Ecology had taken under a Level Four Corrective Action would have substantially increase a facility’s costs.

No Mandatory Level Two Corrective Action. Another proposal that Ecology rejected was mandatory Level Two Corrective Action for facilities that had “triggered Corrective Action Level 2 and/or Level 3” under the Current Permit. As proposed, Ecology had prepared an appendix to the proposed New Permit listing facilities that would be required to submit a Level Two Corrective Action whether or not the facility had already completed and submitted to Ecology an equivalent “level two source control report” under the Current Permit. By rejecting this proposal Ecology avoided placing administrative burdens and costs on facilities that have already addressed corrective actions.

No New Inspector Training. Ecology also rejected proposed New Permit Condition S7.A.2. which would have required that, beginning January 1, 2012, “visual inspections shall be conducted by a Certified Industrial Stormwater Manager (CISM), Certified Professional in Stormwater Quality (CPSWQ), or Professional Engineer.” This provision would likely have increased, perhaps substantially, permit holders’ costs for completing visual inspections.

Conclusion

The New Permit makes substantial changes from the Current Permit. These changes will require facilities to modify their operational and source control BMPs, alter their sampling and inspection schedules, and update their SWPPPs. For many facilities, the New Permit will also trigger more Corrective Actions. Industrial Permittees should promptly review the New Permit and plan for future compliance. Such planning should include reviewing and revising each facility’s SWPPP. Given the stakes involved, many Permittees should consider seeking professional engineering and legal guidance on compliance with the New Permit.

For more information on stormwater and water quality issues please contact Jeff Kray at Marten Law Group.

[1] New Permit Fact Sheet at 78.

[2] See Boatyard Stormwater Treatment Study – Final Report, March 2008 (Taylor Associates, Inc.) and comments on Ecology’s draft Industrial Stormwater General Permit submitted by Independent Business Association (July 15, 2009) and Association of Washington Business (July 15, 2009).

[3] See comments on Ecology’s draft Industrial Stormwater General Permit submitted by Kennedy/Jenks Consultants (July 15, 2009).

[4] Marten Law Group Environmental News (August 20, 2009).

[5] 33 U.S.C. § 1342.

[6] Chapter 90.48 RCW.

[7] 33 U.S.C. § 1301.

[8] 33 U.S.C. § 1311(a).

[9] See 33 U.S.C. §§ 1311(a), 1342(p).

[10] 33 U.S.C. § 1342(b).

[11] Current Permit, Condition S4.D.2.

[12] Current Permit, Condition S9.

[13] New Permit, Condition S3.B.4.b.i.2)a.

[14] New Permit, Condition S3.B.4.b.i.4).

[15] New Permit, Condition S3.B.4.b.ii.

[16] New Permit, Condition S4.B.1.c.

[17] New Permit, Condition S4.B.1.b (emphasis in original).

[18] Emphasis added.

[19] New Permit, Condition S4.B.6.a.

[20] New Permit, Condition S4.B.6.b.i.

[21] New Permit, Condition S4.B.6.b.ii.

[22] New Permit , Appendix 2 – Definitions.

[23] Current Permit Condition S4.D.2.

[24] New Permit, Condition S5.A (Table 2).

[25] New Permit Fact Sheet at 78.

[26] New Permit, Condition S5.A (Table 2).

[27] New Permit, Condition S5.A (Table 3).

[28] Id.

[29] Id.

[30] Id.

[31] New Permit, Condition S6.C.

[32] New Permit, Condition S6.B.

[33] Id.

[34] New Permit, Condition S7.A.1.

[35] New Permit, Condition S7.C.1.

[36] New Permit “Fact Sheet” at p. 54.

[37] New Permit, Condition S9.B.

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