Few words may strike more anxiety in the hearts of business owners than “new industrial regulations.” And in California’s industrial sector, it is safe to say that anxiety is likely reaching new levels as businesses grapple with the fine print of the state’s long-in-coming General Permit for Storm Water Associated with Industrial Activity (IGP).
The permit, which is the implementation of federal regulations under the Clean Water Act, was intended to be revised every five years by the State Water Resources Control Board (SWRCB). However, it has been nearly two decades since the last General Permit was issued in 1997; the new permit was signed into law mid-2014 for implementation by July 1, 2015.
Ross Dunning, P.E., project manager and stormwater practice leader with San Francisco-based Kennedy/Jenks Consultants, observes that in California the changes that now affect previously exempt industries “are regulations no one has had to deal with before.”
Dunning explains the intricacies of the IGP with respect to industrial stormwater. “Most of the states in the US have delegated authority to implement the federal NPDES [National Pollutant Discharge Elimination System] program. States set up their own stormwater permitting systems, and the EPA at the federal level has a host of standards of industrial classifications that define the facilities that need to comply with this.”
Dunning explains that most industries fit into one of the classifications that are required to seek an industrial permit. The same codes designed in the federal policy are also covered in California.
“The state regulations are all patterned, for the most part, after the federal EPA Multi-Sector General Permit, but, depending on where you live, the regulations vary to some degree. And the state regulations can be more stringent than the federal regulations, but they can’t be less stringent.”
An important caveat is that if your facility is in violation of a state permit, it is also in violation of the federal policy and subject to third-party lawsuits under the Clean Water Act regardless of local regulatory agency action.
In Washington and Oregon, for example—a region Dunning says is very sensitive to preserving the water so crucial to the regional salmon populations—industrial stormwater regulations “are more stringent and more prescriptive.”
He continues, “In Washington, for example, we have different parameters on turbidity, copper, zinc, pH, and oil and grease that are more stringent than the federal regulations. Our biggest concern is salmon, and those metals are found to have a toxic impact on fish at low concentrations.” Dunning adds that Oregon has similar concerns, and its permit has evolved to look a lot more like Washington’s over the years in demanding accountability and a close eye on industry activities.
“If you are a covered industry in Washington, you need to collect stormwater samples and submit them to the lab and have them analyzed for parameters listed in the permit. Based on the results, you may or may not be required to take corrective actions.”
But this is not necessarily what happens everywhere.
In some states, he notes, “they don’t even need to monitor. You can collect a water sample, look at it, and decide if it has evidence of pollution.”
But these differences in state permit regulations across the country pose problems for companies that have multiple facilities across different states.
And for the first time, California business entities that were not affected by industrial stormwater regulations in prior years may now be subject to the new permit, (depending upon their standard industrial classification, or SIC). If they are required to have coverage under the permit, they must at least respond with a required filing explaining eligibility, or not.
The overarching issue for a qualifying industrial operation is deceptively simple: Does stormwater leave your site and at any time come into contact with the waters of the US? If the answer is yes, then the permit applies, and the operation qualifies for coverage under the 2015 IGP.
But, again, some industries whose SICs were not included under the 1997 permit are now are covered, and exemptions from previously ineligible facilities may not hold water with the latest permitting policies. The nuances of eligibility are also a fine line of interpretation.
Deciphering the Latest A–Z Permit Acronyms
According to the California SWRCB, light industries were previously required to obtain coverage only if their activities were exposed to stormwater, but that exemption has been removed in the 2015 IGP. For many California facilities, especially those that have never before been affected by light industry General Permit regulations, deciphering how, or whether, their facility is now impacted can be baffling.
While a business can continue to claim an exclusion, it can’t just “do nothing” but is required to submit information electronically on or before the enrollment deadline. Failure to register the company by that date can incur a hefty $5,000 fine per day.
And if a facility does find itself eligible and must apply for a permit, there is a litany of acronyms that can be confusing at best to a new, and even not-so-new, permittee. The new policy descriptions of 2015 include such acronyms as NAL, NONA, QSE, ERAs, NEC, LRP, DAR, and more. And the fine lines of distinctions must be correctly interpreted. Small “mom and pop” shops unfamiliar with the complexities of environmental compliance face a complex jigsaw puzzle of terms and rules.
Getting Started in the Triage of Decision-Making
The first step is for a facility to compare its current SIC code with the IGP’s latest SIC code list to determine whether the business falls into a covered category.
Once a facility finds itself on the SIC code list, it will then decide which of four types of filings fits its activity. A qualified facility that has no exposure to stormwater of any of the facility’s industrial materials or activities will choose No-Exposure Certification (NEC). However, for this to be approved, the facility must be able to demonstrate that it has protective, storm-resistant shelters for all of its materials, equipment, and industrial activities. In other words, nothing is exposed to the elements at any time.
When filing for the NEC, there is no monitoring or stormwater pollution prevention plan (SWPPP) needed, and there is a low annual permit fee, plus an inspection that confirms no activities are exposed to stormwater, which signed by a legally responsible person (LRP). The application, a site map of the property, and a certification checklist along with the fee of $200 was to have been filed by July 1, 2015, signed by the LRP or a duly authorized representative (DAR). (On July 1, the SWRCB staff issued a statement saying it had “identified a technical issue that is affecting bandwidth of the system and restricting access to the database,” and extending the deadline for enrollment to August 14, 2015.)
A second type of filing is for a facility that is constructed to have no discharge and that is not hydrologically or otherwise connected to any waters of the US. Such a facility will file for a Notice of Non-Applicability (NONA) and will also submit a site map and a technical report explaining its status, signed by both an LRP and a DAR, plus the $200 fee.
When a company has changed ownership or has discontinued its industrial function, it qualifies to file a Notice of Termination (NOT). This category requires filing a site map, a LRP- and DAR-signed certification statement, and a $200 fee as soon as the site has changed ownership or discontinued its industrial activities.
All other facilities whose industrial activities are exposed to stormwater or whose stormwater is discharged to waters of the US must file a Notice of Intent (NOI) signifying that they intend to adhere to the requirements of the new IGP. Everyone filing an NOI is subject to the rules and policy of the 2015 IGP. The NOI confirms a facility’s eligibility, and all permit registration documents, site plans, and fees were to have been submitted by the extended August 14 deadline.
The calendar year for reporting and monitoring is July 1 to June 30. The “first half” period runs from July through December, and the “second half” period from January through June.
Qualified Discharger Requirements
For all industries (whether they are renewing, or are submitting their first-ever application), there are important new changes to the permit. The 2015 IGP has implemented a required minimum set of best management practices (BMPs) that form the content of the SWPPP, along with specific BMPs applicable to that type of site, based on the respective SIC code.
The minimum BMPs include good housekeeping practices, preventive maintenance, a response plan for spills and leak prevention, erosion and sediment controls, employee training, and procedures for materials handling and waste disposal. Advanced level BMPs in the SWPPP include procedures for how stormwater exposure is reduced; how stormwater is contained; how stormwater discharge is reduced; and how stormwater will be reused if possible—for example, for onsite industrial processes, cooling equipment, or site irrigation.
The SWRCB also says that the IGP includes design storm standards that include both volume- and flow-based criteria; these are applicable for dischargers implementing treatment control BMPs. However, dischargers “are not required to retrofit existing treatment control BMPs unless required to meet the technology-based effluent limitations and receiving water limitations in this General Permit.”
Another change in this IGP is the increased sampling frequency that requires the discharger to collect and analyze stormwater samples from each discharge location for two qualifying storm events (QSEs) within the first half of each reporting year, and for two QSEs in the second half of the year. The analytical sampling must be performed within four hours of the start of the storm event or, if the QSE took place in the previous 12 hours before the start of the facility’s normal working hours, as soon as possible after beginning the normal work shift.
At the outset, everyone who is newly eligible and files an NOI is assigned a discharger compliance status—in other words, the minimum standards that must be met. Until data are collected for assessment reports in the first year, everyone starts at baseline compliance status. This means that the industry is below the numeric action level (NAL), or simply that the facility does not have evidence demonstrating that its discharges have higher-than-acceptable levels of any of the parameters of contaminants and conditions.
The parameters measured include pH, total suspended solids (TSS), oil and grease, zinc, copper, lead, cyanide, chemical oxygen demand, aluminum, iron, nitrate+nitrite nitrogen, phosphorus, ammonia, magnesium, arsenic, cadmium, nickel, mercury, selenium, silver, and biochemical oxygen demand. Actual parameters depend on the specific SIC code for the industry; additional parameters could be included based on the list of materials a facility uses.
A facility may have an annual or instantaneous level that exceeds the acceptable NALs of any of the above parameters being analyzed, depending on the specific industry’s SIC code. When this happens, the facility is automatically bumped from baseline to Level 1 status.
Level 1 dischargers must prepare an Exceedance Response Action (ERA) Report, which requires the discharger to evaluate how the SWPPP can address the parameter exceedance and what new BMPs might need to be developed and put in place. This process must be performed by a Qualified Industrial Stormwater Practitioner (QISP).
New Transparency—Opening Pandora’s Box?
There are roughly 13 components of the new IGP that change or stipulate protocols in how facilities manage and report their business activities, test and sample water, and determine their business responses to stormwater events. But for both newly eligible and ongoing permitted facilities, the new mandatory electronic reporting requirements arguably rank at the top of the food chain of industry anxiety.
Here’s why. Previously, all dischargers of stormwater had the option to file electronically, but under the new regulation, electronic submission through the Stormwater Multiple Application and Report Tracking System (SMARTS) is required. The SMARTS data are immediately available on the Internet.
While this process is designed for increased transparency and ease of information management, it some people nervous. Facilities covered under the 2015 IGP must report how stormwater is contained and discharged, how stormwater sample collection of QSEs is conducted, the various BMPs in place, and much more—all required to be submitted electronically. The process must be conducted and signed off by a specifically trained and authorized representative. And the records are publicly available to virtually anyone with a computer.
This vulnerability is raising concern, as experts feel this potentially opens the door to litigation by consumer or environmental groups who may easily monitor local business entities, scrutinize their compliance with regulations, and, without the benefit of specific industry knowledge, make assumptions. Should they believe that certain facilities are engaging in business activities that could harm local waters, it is within their right to investigate or bring suit against these entities under the provisions of the Clean Water Act.
Industrial environmental expert Roger Griffin, P.E., director of environmental compliance for Ecology Auto Parts in Cerritos, CA, with a tenure of 45 years in environmental work, including teaching at the University of California—Los Angeles and authoring textbooks in the field, describes his concerns from the inside seat of industry: “The thing that scares most industries is not so much the law, but the threat of lawsuits. You can be in compliance and still be sued; the CWA allows for citizen suits. When it’s online you can see your stormwater discharge analyses and your operational plan—the SWPPP—from all over the world. It’s all wide open.”
Information Access in the Wrong Hands?
Griffin says that in today’s world it’s equally prudent to be concerned about widespread information access, given the realities of sabotage and terrorism. “There are serious concerns about [revealing] the type and location of hazardous materials,” he notes. “In some cases, it’s not just significant material inventories, like used oil from draining vehicles or gasoline that we drain and recycle. But we also have other hazardous materials used for stormwater treatment, such as hydrogen peroxide, concentrated solutions of acids for pH balancing, plus a number of [other] chemicals that are potentially out there.”
Although he says he has no problem sharing this information with hazardous materials regulators, the fire department, or people from spill prevention and countermeasure programs, he is uncomfortable having those locations and materials available to just anyone as publicly accessible information.
“Why put it out there? I’m leery of having all that so readily accessible.” With many companies doing the right thing for compliance, he says, the availability of electronically available information increases the potential for anyone becoming a target.
Griffin believes the ease of accessing this information can also lead to overzealous public interest groups who, in vigilante style, seek out litigation opportunities “that often go overboard, resulting in companies spending huge amounts of money to defend themselves when a facility is challenged.” He says even if you win your case, “it’s still a black mark on your name.”
In addition, Griffin says the surface water discharge regulations are very complicated and under the purview of inspectors who can be poorly prepared for their job. “I often spend my time teaching new inspectors to recognize when compliance is met without their becoming overzealous with unnecessary interpretations.”
While his company “has the luxury of a full-time professional, other smaller companies don’t have a professional engineer to go to bat for them,” and they are less likely to be prepared if called on to defend their actions and demonstrate compliance with the IGP.
Testing and Monitoring May Include a Blind Eye
Griffin is further concerned about specific technical aspects of the new IGP—aspects concerning the measurement process at point-source discharge locations, which he says were brought up before the SWRCB adopted the final permit policies.
One such issue he describes is the current NALs, which he says are based on concentrations. However, he notes, “the impact to health is not [measured] on concentrated levels at the discharge point but rather as it is mixed further downstream in a mixing zone. As I understand it, these NAL standards are presented as if the parameters being tested are being directly ingested by a fish, as if it were swimming up into the discharge pipe.
“You have a concentrated source at a point; it discharges, then it mixes and gets diluted before it affects a living being. If you demand that a point-source discharge meets a mixing zone, or down-source, concentration, you have to tighten that discharge standard to one to ten-thousand-fold. Now you have an exceedingly low part-per-billion-level standard. You will have a very difficult time trying to meet that standard.”
Griffin also takes issue with the new permit allowing pH testing with litmus paper, rather than the use of pH instrumentation, which makes testing easier but not necessarily more accurate. He presented an illustration to the SWRCB prior to the final version of the IGP.
“I pointed out to the SWRCB that the incidence of color-blindness in males is about one in every 10 to 12 men.” (The incidence in women is significantly lower). To illustrate how precision in reading litmus paper can vary, Griffin says, “I asked employees to read the litmus results on three different sample solutions. As I expected, there were differences in interpretation of the color-coded readouts, which doesn’t sound all that crucial, but if you want to be precise, you don’t want bad data, particularly if it’s going to be on the Internet.”
Dunning agrees, adding that people need to take all of this data processing, monitoring, testing, and reporting seriously. Once information is entered into SMARTS, “it becomes public knowledge and they [public groups] could look at the permit and say ‘Hey, you didn’t do this, or you did it improperly, so now you’re in violation,’ and if you are in violation of the state regulations, then by default, you also are in violation of the CWA as well.”
Grapes As “Industrial Raw Material”—Who Knew?
Senior scientist Susanne Zechiel, a specialist in the food and beverage sector of Kennedy/Jenks Consultants recently addressed the California Wine Institute to provide members of this advocacy and public policy organization an explanation of the IGP updates. She says the institute represents more than 1,000 California wineries, ranging from small producers and processors to large industrial manufacturing operations, and nearly all are impacted in some way by the 2015 IGP.
“There are thousands of facilities, not just in the wine business, but across the board, who were previously told they were exempt as light industry. But now, they are no longer exempt, and they are trying to figure out how their facility qualifies and must adhere to the regulations,” explains Zechiel.
In California alone, “There are 4,500 more or less wineries, and only 200 of them have a permit under the 1997 regulations. The rest are small, boutique-style wineries that were previously exempt. Now they are not, which means there are about three to four thousand wineries that need to take action.”
She says that under the new permit, “if your facility brings in grapes in an uncovered vehicle, this qualifies as an industrial exposure. The interpretation of the regulation is that the grapes are going into the processing, so as soon as they come up the driveway, that portion where they are on the driveway is an exposure.”
On the other hand, “if you bring in a truckload of glass to a winery, that is not an exposure. But the simple act of bringing in grapes, which are considered raw materials, is, and consequently deemed a pollutant source.”
She adds, “We are pursuing [with SWRCB] to allow for eligibility for ‘no exposure’ if the only exposure—the simple act of opening a gondola of grapes—is this one.
“For small wineries it’s going to be very difficult to get the message across that if you were previously non-enrolled and you think you are still exempt, you’re operating under a false sense of security.” And the SWRCB, Zechiel says, doesn’t really have the mechanisms to actively seek out facilities that are sliding under the radar screen.
“However, there are different ways you could be discovered, such as through a routine inspection—if you have another kind of permit, such as waste discharge—and then they ask about your stormwater program, you could land in trouble.”
Getting up to Speed After 18 Years
Katie McCoy, P.E., an IGP trainer of record and senior staff engineer at Kennedy/Jenks Consultants, says the near-two-decade lapse in permit updates is partly to blame for industry anxiety.
“The long lapse since 1997 is a problem because there are significant changes over what we used to have to do, and even the state needs to get the permit kinks worked out. The data is so spotty and incomplete, and it’s hard to work with, so they’re looking forward to getting more numbers and trends.”
She adds that communicating the message “is a huge effort, and people are panicked at the fees of $5,000 a day if their filing isn’t in. But we’ve come across folks for whom the regulation doesn’t apply. For example, they have the right classification but they have ponds and no discharge leaves the facility, so in a sense they are still exempt. It’s just very confusing to small facilities who may not know how to find answers.”
Broadcasting awareness of the new permit after 18 years of no revisions and making the complexities of qualification and adherence understandable is a huge communications effort, McCoy says.
“So many people in California light industry still don’t even know about this permit, its policies, and how they are impacted.” She adds that, in all likelihood, “some people are going to slip through.”
As the new IGP goes into effect, California’s industrial sector faces a challenging task. Approximately 10,000 facilities are now active under the old policy, but the changes that add all industry—including the previously exempt light industrial facilities, such as wineries, textile, apparel, food and plastic—will potentially double the number of filers.
Yet as drought continues to plague the water resources of the Golden State, policymakers and environmentalists are hopeful these measures will be one more step to help ensure the quality of water for use across all sectors. And, perhaps Mother Nature will register her approval—but only through the electronic filing system, of course!
