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Washington State Proposes Industrial Stormwater General Permit Modifications

March 23, 2012

Washington State is proposing controversial revisions to its Industrial Stormwater General Permit (ISGP) which could impact every permitted facility in the state.[1] The Department of Ecology (Ecology) is acting, in part, in response to a 2011 ruling from the state Pollution Control Hearings Board (PCHB). It is also proposing some modifications on its own initiative, including changes to the water quality standards that some facilities must adhere to regarding fecal coliform.

Ecology is currently considering comments that it received on the proposed modifications. Unless those comments persuade Ecology to further revise the ISGP, the agency will implement the changes by May 2012, with an effective date of July 1, 2012. Whether Ecology’s proposed modifications will face and/or withstand further legal challenges remains to be seen. The Boeing Company has already filed a pending appeal of discrete aspects of the PCHB’s decision before Division II of the Washington State Court of Appeals. This appeal addresses several fundamental aspects of the “adaptive management” and “corrective action” approach in the ISGP that could, if successful, require Ecology to yet again revise the ISGP. It is also possible that other members of industry or environmental groups could yet challenge portions of the proposed modifications.

Background

The ISGP requires industrial facilities to manage and monitor stormwater runoff to ensure that contaminated stormwater is not discharged to wetlands, creeks, rivers, or marine waters. The ISGP is required under the federal Clean Water Act (CWA) and Washington’s Water Pollution Control Act (WPCA). The CWA prohibits the discharge of a pollutant by any person, except in compliance with specified statutory sections.[2] These exceptions include discharges that occur in compliance with permits issued under the National Pollutant Discharge Elimination System (NPDES) in Section 402 of the CWA, which includes stormwater discharge permits.[3] EPA has delegated much of the responsibility for administering the NPDES program to the states.[4] 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 ISGP, issued in 2009, does not expire until January 2015. Generally, and as discussed further below, the ISGP employs an “adaptive management” approach, where permittees must (1) prepare, implement, and update as necessary a Stormwater Pollution Prevention Plan (SWPPP) that, among other things, identifies on-site pollutant sources and best management practices (BMPs) to prevent or reduce pollution, and includes a facility assessment, monitoring plan, and descriptions of applicable BMPs; (2) timely perform appropriate stormwater sampling and visual inspections, and submit proper discharge monitoring reports (DMRs) of the sampling and inspections to Ecology; and (3) compare the sampling results to the benchmarks for those parameters and, if necessary based on benchmark exceedances, comply with the three-tiered “corrective action” requirements and other recordkeeping obligations. For a summary of the current ISGP, see Washington State Issues New Stormwater Permit for Industrial Facilities.

PCHB Ruling and Ecology’s Proposed Modifications to the ISGP

Shortly after Ecology issued the current ISGP, industry and environmental groups appealed the ISGP before the PCHB, raising dozens of legal issues. In an April 25, 2011 decision, the PCHB upheld the ISGP on most of these grounds, but remanded the ISGP to Ecology to modify two aspects: (1) the “consistent attainment” provision, which allows a permittee to suspend sampling after a certain number of consecutive quarters of sampling demonstrate compliance with the benchmarks for particular parameters; and (2) the “corrective action” provision, addressing the steps that a permittee must take to respond to benchmark exceedances. Additional detail regarding these aspects of the PCHB’s decision is set forth below.

Ecology’s proposed modifications to the ISGP respond to the PCHB decision. Additionally, Ecology is taking the opportunity to revise two other aspects of the ISGP.[5]

1. Modification of “Corrective Action” Requirements

The most significant proposed change for most permittees is likely the proposed modification to the “corrective action” requirements in Condition S8 of the ISGP. Among other things, this change would shorten a permittee’s time frame for assessing and addressing benchmark exceedances.

Benchmarks are not themselves numeric effluent limits; rather, they are intended to be used as adaptive management mechanisms that trigger the permit’s “corrective action” scheme. This scheme imposes an increasing level of response based on the number of quarterly sampling exceedances for any one parameter during a given calendar year. Under Condition S8 of the existing permit, a Level 1 corrective action, triggered by a single benchmark exceedance of any parameter, requires a permittee to review and modify the facility’s SWPPP and include any “operational source control BMPs” necessary to achieve benchmarks in future discharges “as soon as possible,” but no later than when the DMR for the quarter is due. A Level 2 corrective action requires the permittee to review and modify the facility’s SWPPP and include any “structural source control BMPs” necessary to achieve benchmarks in future discharges. These changes must be implemented by September 30 the year after the benchmark exceedances, unless that deadline is waived or extended by Ecology, and also must be summarized in the annual report. A Level 3 corrective action necessitates a permittee to review and modify the SWPPP to include any necessary “treatment BMPs” to achieve compliance in future discharges. These changes must be implemented by September 30 the year following the benchmark exceedances, and a certified professional must sign and stamp the treatment portions of the SWPPP changes.

The PCHB determined that the corrective action requirements in Condition S8 fail to meet the “adaptive management” requirements of RCW 90.48.555(8) and “present unduly vague and confusing terms that result in unreasonable delays and questionable enforceability.” Specifically, the PCHB determined that: (1) the permit “must include a reasonably short time frame within which a permittee must initiate an investigation of a benchmark exceedance;” (2) the current deadline for implementing a Level 2 corrective action is “excessively long;” and (3) “the permit must clarify when and how a permittee escalates from a Level 2 to a Level 3 when a Level 2 corrective action is already underway.”

Consistent with these aspects of the PCHB’s ruling, Ecology is proposing to modify the ISGP is four principal ways. First, with respect to a Level 1 corrective action, the modifications impose a fourteen day deadline, beginning at the time a facility receives sampling results showing a single benchmark exceedance, to investigate the cause of a benchmark exceedance and revise the SWPPP accordingly. This change will necessitate an astute review of all sampling results and a prompt revision to the SWPPP, but will not impose a new reporting requirement; the modified SWPPP need only be kept at the facility. Additionally, the proposed modifications do not change the deadline for actually implementing the revised SWPPP.

Second, a permittee must now fully implement a Level 2 corrective action two months earlier than under the existing permit—by July 30 in the calendar year following the period of two benchmark exceedances for a given parameter. This truncated response period will require an accelerated pace for implementing structural source controls, particularly if these controls are best performed in dry weather. Ecology is also proposing to change the deadline for seeking a Level 2 waiver or extension from June 1 to April 1 to accommodate the 60 day time period in which Ecology reviews an extension/waiver request before the Level 2 deadline expires. As a practical matter, if a permittee intends to seek an extension/waiver, the permittee will need to evaluate the circumstances at the facility and any potential responses no later than the spring following the trigger for the Level 2 corrective action.

Third, Ecology is proposing additional language regarding the basis on which a permittee must consider and implement a Level 3 response. The ISGP would now include language stating that a SWPPP revision for treatment BMPs must “be based upon monitoring, assessment or evaluation information to determine whether further modification of the Level 3 Treatment BMPs or additional BMPs are necessary to meet the goal of achieving the applicable benchmark value(s) in future discharges.” This information would also have to be included in an annual report summarizing the Level 3 response.

Finally, Ecology is seeking to clarify the necessary course for a facility that exceeds benchmarks during the year that a Level 2 or 3 response is required. Under the proposed modification, permittees “do not trigger additional Level 2 or 3 Corrective Actions, if they are already implementing a Level 2 or 3 from a previous calendar year (for the same parameter), and the applicable deadline hasn’t passed yet.” However, additional corrective actions may be necessary even after a Level 2 or Level 3 action has been completed if the facility continues to exceed benchmark values.

2. Modification of Criteria for “Consistent Attainment”

The second proposed modification in the permit that would potentially impact every permittee is the proposed requirement that a facility have no benchmark exceedances for two years until the facility is considered under “consistent attainment.” The existing permit authorizes a permittee to suspend sampling for a particular parameter if four consecutive quarters show that the parameter is within the benchmark for that parameter. The PCHB took issue with Ecology’s decision to reduce the number of consecutive quarters from eight to four when it reissued the permit in 2009, determining that Ecology lacked a scientific foundation for the change showing how many compliant sampling periods would predict future benchmark attainment. Based in part on an internal Ecology briefing paper, the PCHB determined that at least seven quarters of meeting benchmark values should be expected prior to a suspension of sampling for the remainder of the permit term, or a shorter period followed by a presumption of sampling within the permit time frame.

Based on the PCHB decision, Ecology is proposing to require eight consecutive quarterly samples before a permittee can suspend sampling for any parameter based on “consistent attainment.” If a permittee has already suspended sampling based on four consecutive quarters, Ecology proposes to allow the permittee to apply the previous four quarters as credit toward the eight quarter period. This proposed change is unlikely to change substantially a permittee’s level of effort in complying with the permit. Although permittees now must continue to incur the expense of analytical results for a given parameter, most permittees that have obtained consistent attainment for one or several parameters must nevertheless continue sampling for others. Neither the current permit nor the proposed revisions include a date certain for when the “consistent attainment” period ends and when a permittee must resume sampling, with the presumption being that the period expires along with the permit.

3. Removal of Numeric Effluent Limits for Fecal Coliform

Although not required by the PCHB decision, Ecology is also proposing to revise the effluent limits for fecal coliform by replacing the existing numeric standard with a series of BMPs. Under the existing permit, facilities that discharge into water bodies that are “impaired,” per CWA § 303(d), for fecal coliform are required to meet a numeric effluent limit for that parameter. Ecology’s intent in making this change stems from Ecology’s recognition that the majority of industrial facilities subject to this monitoring requirement are not themselves sources; rather, the fecal coliform is coming from birds or other wildlife that frequents the facility. The Washington State legislature recently passed a bill, H.B. 2651, by a unanimous vote that allows Ecology to adjust this aspect of the permit. At the time of this writing, the bill is before Governor Gregoire for signature.

The proposed modifications would greatly reduce the burden on permittees that, despite efforts to implement BMPs, cannot consistently meet the numeric standard. However, the modifications would impose on permittees a new set of BMPs, such as methods to keep wildlife from feeding/nesting/roosting at the facility, structural source control BMPs to address any on-site sources of bacterial contamination, and annual dry weather inspections of the facility’s stormwater system to address potential cross-connections with sanitary sewers. The proposed modifications would authorize Ecology to require additional BMPs and/or sampling on a case-by-case basis.

4. Modifications to Waiver/Extension Process

Ecology is also taking this opportunity to modify aspects of Condition S2.C, which governs the timeline for permit coverage and modification. Under Condition S2.C of the existing permit, modifications are automatically granted to facilities seeking Level 2 or 3 waivers after 31 days, despite the 60-day review periods set forth in the “corrective action” provisions of Conditions S8.C and S8.D. To avoid confusion, Ecology is seeking to revise Condition S2.C to remove the references to permit modifications, leaving the more specific timelines set forth in Conditions S8.C and S8.D to control.

For more information regarding stormwater permitting, please contact Meline MacCurdy, Jeff Kray or any other member of Marten Law’s Water Quality practice group.

[1] Information regarding the proposed modifications is available here.

[2] 33 U.S.C. § 1311(a).

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

[4] 33 U.S.C. § 1342(b).

[5] Ecology’s proposed modifications also include corrections of errors in the permit that Ecology identified in an Errata Sheet after it issued the permit.

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