June 01, 2017

Storm Water Violations and Tips to Avoid Them

Mark D. Johnson

Recently, there has been an increase in the number of lawsuits filed by private citizens or organizations, primarily environmental groups, under the Clean Water Act (CWA) alleging that businesses have released pollutants or otherwise acted in violation of their required storm water permits. For example, in California, more than 100 notices of violation that are the required precursor to such a citizen’s suit were issued in 2015–16. Many of the notices concern alleged violations of a business’s storm water pollution prevention plan. This article provides an overview of the storm water permit program under the CWA, identifies the most common violations, and suggests methods to limit exposure to enforcement actions or citizen suits.

Many businesses, including a variety of industrial facilities and those involved in construction, are required to obtain National Pollution Discharge Elimination System (NPDES) permits, including permits to cover storm water discharges. The CWA provides that “the discharge of any pollutant by any person shall be unlawful,” 33 U.S.C. § 1311(a), except in compliance with other provisions of the statute, including a NPDES permit. The “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). The term “pollutant” incudes solid waste, chemical waste, rock, sand, and industrial, municipal, and agricultural waste discharged into water. 33 U.S.C. § 1362(6). A “point source” includes any pipe, ditch, channel, tunnel, conduit, well, or container from which pollutants are or may be discharged. 33 U.S.C. § 1362(14).

The NPDES program establishes controls on storm water point source discharges of pollutants to “waters of the United States” (WOTUS). 33 U.S.C. § 1342(p). “Storm water” means storm water runoff, snow melt runoff, and surface runoff and drainage. 40 C.F.R. § 122.26(b)(13). What constitutes WOTUS is in somewhat of a state of flux. The definition of WOTUS currently in effect is the one promulgated in 1986–88. This definition is fairly broad and includes rivers, lakes, streams, and wetlands. 40 C.F.R. § 230.3(o). The 2015 revised regulatory definition of WOTUS, 80 Fed. Reg. 37,054 (June 29, 2015), has been stayed. Ohio v. U.S. Army Corps of Eng’rs (In re EPA), 803 F.3d 804 (6th Cir. 2015). Further, President Donald Trump issued an executive order directing EPA and other agencies to review and rescind or revise the 2015 rule. Exec. Order No. 13778, 82 Fed. Reg. 12,497 (Mar. 3, 2017). This order directs that the rulemaking consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

EPA regulations require operators of industrial facilities to obtain storm water discharge permits for storm water associated with certain industrial activities. 40 C.F.R. § 122.26(b)(14). Storm water discharge permits also generally are required for construction activities that disturb one acre or more of land. 40 C.F.R. § 122.26(b)(15).

EPA is authorized to delegate its authority to states to implement and administer the CWA. 33 U.S.C. § 1342. Most states have received authorization to administer the CWA, including the NPDES permit program within their boundaries. U.S. Envtl. Prot. Agency, Authorization Status for EPA’s Construction and Industrial Programs (Feb. 21, 2017), available at www.epa.gov/npdes/authorization-status-epas-construction-and-industrial-stormwater-programs#undefined. The majority of industrial discharges and construction activity discharges are authorized under NPDES general permits issued by a state under authority granted by the EPA. General permits cover categories of similar industrial activities or construction activities in a single general permit, and typically are valid for five-year periods. Although general permits are mostly administered by authorized states, the EPA can enforce permit requirements if the state fails to do so. However, if a proposed construction or industrial activity is less common or if the discharge will be to a sensitive area or is otherwise unique, then an individual permit is required.

A key component of these permits is the requirement to develop and administer a Storm Water Pollution Prevention Program (SWPPP). In order to be authorized to discharge under a general permit, the operator of an industrial facility or a site of construction activities submits a Notice of Intent (NOI) to the EPA or, more likely, to the administering state. 40 C.F.R. § 122.28(b)(i). The NOI advises the permitting authority that the discharger is eligible for coverage under a general permit and provides information on the industrial activities and related information regarding the proposed discharger.

Although most general permits are issued by a state, the Multi-Sector General Permit for Storm Water Discharges Associated with Industrial Activity issued by the EPA in 1995 (available at www.epa.gov/sites/production/files/2015-10/documents/msgp2015_finalpermit.pdf) (Multi-Sector General Permit) sets forth the general requirements for a SWPPP. A SWPPP must be prepared before submitting an NOI. Multi-Sector General Permit at § 5. The SWPPP is intended to document the selection, design, and installation of control measures to meet the permit’s effluent limits. Id.

A SWPPP must include a list of the storm water pollution prevention team, site description, summary of potential pollutant sources, description of control measures, and storm water analysis schedules and procedures. Id. at § 5.2. In addition to a description of the industrial activities at the facility, the site description must include a general location map showing the location of the facility and all receiving waters for its storm water discharges, and a site map depicting the location of all storm water control measures, storm water conveyances, and essentially all potential storm water discharge locations. Id. at § 5.2.2. A SWPPP must describe areas at the facility where industrial materials or activities are exposed to storm water or from which allowable non-storm water discharges originate. For each such area, a SWPPP must list the industrial activities exposed to storm water and the pollutant(s) associated with each identified activity that could be exposed to rainfall or snowmelt and could be discharged from the facility. A SWPPP also must document where potential spills and leaks could occur that could contribute pollutants to storm water discharges, and document all significant spills and leaks of oil or toxic or hazardous substances that actually occurred in the prior three years. Id. at § 5.2.3. A SWPPP also must document the location and type of control measures that the operator of the facility has chosen to meet various storm water effluent limits or guidelines. Id. at § 5.2.4.

Pursuant to a SWPPP, a permittee must collect storm water samples at various times and after certain storm events, and must document the results. In most cases, a storm water sample must be collected and analyzed on a storm event that results in an actual discharge from the site that follows such measurable storm event by at least 72 hours. Id. at § 6.1.3. In addition, benchmark monitoring must be conducted quarterly for the first four quarters of permit coverage. Id. at § 6.2.1.2. Benchmark monitoring data is used primarily to determine the overall effectiveness of a permittee’s control measures with respect to permit specified pollutant benchmark concentrations applicable to the permittee’s industrial activity or sector. Id. at § 6.2. If the average of the four monitoring values for any parameter exceeds the benchmark, a permittee must review its control measures and determine if modifications are necessary, and either make the necessary modifications and continue quarterly monitoring, or make a determination that no further pollutant reductions are technologically available and economically practicable in light of best practices of the applicable industry. Id. at § 6.2.1.2.. In most cases, data from any storm water collection event must be reported to the permitting agency within 30 days.

In addition to storm water sample collection sampling and submittal of the results to the permitting agency, a permittee also must submit annual reports. Id. at § 7.5. An annual report must include summaries of the past year’s routine facility inspection documentation, the facility’s quarterly visual assessment documentation, and the facility’s corrective action documentation (including a description of any incidents of permit noncompliance, or if none, a statement that the facility is in compliance with the permit). Id.

The annual report and other documents—including an NOI, documents regarding sample collection, and discharge monitoring reports—must be reported electronically to the EPA or applicable permitting agency. The records are readily available to the public on the Internet.

A state permitting authority and the EPA may bring an action against a permittee for a violation of the CWA and seek civil or criminal penalties. 33 U.S.C. § 1319(c) and (d). This includes violations of NPDES permit conditions, including SWPPP violations, and operating without a required NPDES permit. 33 U.S.C. § 1319. Civil penalties can be as high as $52,414 per violation per day. 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4 table 2. Criminal penalties can include imprisonment of up to two years for negligent violations and up to six years for knowing violations. 33 U.S.C. § 1319(c)(1)(B) and (2)(B).

Private citizens also may bring a civil lawsuit against any person for failing to obtain a required permit or any permit violation, unless a state or the EPA is already enforcing or prosecuting the alleged violation. 33 U.S.C. § 1365. Prior to bringing suit, a private citizen must give 60 days’ notice to the EPA, the state, and the alleged violator. This notice should not be ignored. In some cases penalties accrue daily. Further, it may be possible to cure the alleged violation during this notice period and potentially bar a lawsuit or greatly limit any potential recovery. If a citizen’s lawsuit is filed, recovery can include injunctive relief and civil penalties. In addition, the court may award costs of suit including reasonable attorney and expert witness fees. 33 U.S.C. § 1365(d).

Common citizen suit allegations include failure to have a required permit, failure to update or amend a SWPPP, effluent quality discharge violations, failure to report data or take samples as required by a SWPPP, failure to install and maintain best management practices, failure to adequately sample and analyze storm water events, and failure to file timely annual reports. Due to the extensive reporting requirements and the availability of these records to the public—or the ability of those checking the records to find out that required filings were not made—it is very easy for bounty hunters to use the information reported by a permittee to a state agency or the EPA to form the basis of a claim for violation of the CWA. Bad housekeeping practices that readily can be seen through satellite images of a facility—which are easily accessible on the Internet—also are a red flag for a potential citizen’s suit. As a result, good housekeeping practices should be employed, particularly with respect to exposed areas and waste handling activities. For construction sites, many CWA violations concern erosion and sediment controls. Common problems are uncontrolled steep slopes and uncovered soil or debris stockpiles.

Given the possibility of a citizen’s suit and the extensive penalties potentially available for violations, including possible imprisonment, compliance with the CWA, including SWPPP requirements, should be a priority for industrial and construction site operators. One of the best ways to achieve compliance is to ensure that all personnel involved in permit compliance activities are thoroughly trained in CWA requirements, including SWPPP requirements, and understand the importance of compliance.

Mark D. Johnson

Mr. Johnson is a partner in the Los Angeles office of Snell & Wilmer. He may be reached at majohnson@swlaw.com.