Stormwater Permits: The Real Risks of Non-Compliance

The cost of non-compliance for your company and/or your clients can be quite significant, up to $37,500 per day in fines and millions in penalties. In addition, non-

filers open themselves up to potential litigation by environmental organizations under the Clean Water Act.

By Ryan Janoch

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IntroductionA quick briefing on the July 1st, 2015 changes on industrial stormwater permit law, and the consequences for non-compliance.

Permit backgroundA primer on the history of stormwater permits in California, and the important dynamics of the Clean Water Act.

The Real risks to youWhy there is a real risk; an outline of the dierent ways that non-compliance can adversely impact your business.

Fines, Lawsuits, and other risksHow consequences are levied against industrial facilities and engineering firms/consultancies.

Where the risks turn into realityAn exploration of recent cases in California where risks turned into reality, costing thousands and even millions of dollars.

the mapistry solutionMapistrys unique solution saves time and money, making stormwater permit compliance easier than ever for all facilities and engineers.

summaryThe consequences for non-compliance are real and significant. Facilities must take steps to file and update permits properly before July 1st.

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contents Inside

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introductionOn July 1, 2015, an estimated 100,000 industrial facilities in California will need to be in compliance with a brand new stormwater permit (the industrial general permit or IGP). Previously, only about 10,000 industrial facilities had filed for coverage under the old stormwater permit. Even if a facility was covered under the old industrial stormwater permit, they will still need to file again for coverage under the new permit. The estimated 90,000 facilities, which included light industry, that are filing for the first time were largely exempt from the old stormwater permit. Now they either have to file for full permit coverage or they can file for an exemption based on no exposure of industrial activities and/or materials. Filing for permit coverage by all the applicable facilities requires the s u b m i s s i o n o f p e r m i t reg i s t ra t i o n documents online via the California State Water Resources Control Board (SWRCB) website.1

The cost of non-compliance for your company and/or your clients can be quite significant, ranging from financial penalties and fees to time spent on regulatory audits, legal defense, and public relations. For violations of the stormwater permit, the SWRCB can issue fines of up to $37,500 per d a y. I n a d d i t i o n , n o n - f i l e r s o p e n themselves up to potential litigation by environmental organizations under the C l e a n W a t e r A c t ( C W A ) . 2 A s a n environmental professional or facility owner/manager, you should be aware of the requirements of the new industrial stormwater permit, the risks associated with non-compliance, and the steps necessary to obtain permit coverage and remain in-compliance.

1. Online submittal of stormwater documents is done via the Stormwater Multiple Application and Report Tracking System (SMARTS), which can be accessed at https://smarts.waterboards.ca.gov

2. http://www2.epa.gov/laws-regulations/summary-clean-water-act

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the

background of the stormwater permit

On April 1, 2014, the California SWRCB adopted the new industrial stormwater permit, which has the oicial title of the National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges Associated with Industrial Activities Order NPDES No. CAS000001 (Order 2014-0057-DWQ). The new permit replaced the old industrial stormwater permit (Order 97-03-DWQ), adopted on April 17, 1997, that industrial facilities had been operating under previously. Since 1997, there were five draft permits issued by the SWRCB in 2005, 2011, 2012, 2013, and 2014 that were the genesis of the permit finally adopted in April 2014. The new industrial stormwater permit, which is also known as the Industrial General Permit or IGP, goes into eect on July 1, 2015.

The current regulations governing stormwater, the IGP, are based on water quality regulations enacted in 1948 as the Federal Water Pollution Control Act. The United States Environmental Protection A g e n c y ( U S E P A ) d i d n o t g a i n administration and enforcement powers

for water quality until 1972, when the CWA was enacted by the United States Congress. In 1972 the mandate of the CWA was to reduce industrial (point-source) discharges of pollutants into waterbodies and the National Pollution Discharge Elimination System (NPDES) was created.3 The NPDES permit program was created to regulate large municipal stormwater sewer discharges, industrial discharges, and discharges into waterbodies that were already impaired. The USEPA has primary oversight of the water quality programs in the United States, but as part of the CWA, the USEPA has the authority to place responsibility for regulating and enforcing water quality on the states. Individual states set water quality standards, which are approved by the USEPA, enforce the standards, and also issue NPDES permits. California was one of the states granted the authority, by the USEPA, to oversee its own water quality program, which includes the IGP.

3. http://www.epa.gov/region1/npdes/history.html

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The new IGP covers nine categories of industrial activities that total approximately 100,000 facilities, which are largely identifiable by Standard Industrial Classification (SIC) code. Facilities need to apply for permit coverage under the IGP online via the SWRCBs Stormwater Multiple Application and Report Tracking System (SMARTS). As part of the application process, a facility will need to file a Notice of Intent (NOI), a site map, and a Stormwater Pollution Prevention Plan (SWPPP) online that will be publicly available. If a facility is filing for an exemption online via SMARTS, they will need to file a No Exposure Certification (NEC) and also a site map. Facilities that are operating under the IGP will need to develop a comprehensive stormwater management program that starts with filing the NOI, creating the site maps, and developing the SWPPP. The SWPPP is the basis for their stormwater management program and compliance under the IGP, including eliminating unauthorized non-stormwater discharges (NSWDs), identifying and implementing Best Management Practices (BMPs), conducting visual monitoring and sampling, keeping records, and annual reporting. Therefore, getting started under the new IGP with a strong SWPPP is key to getting in compliance now and staying in compliance throughout the entire year.

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the

Real risks to you and your business

In the past couple of years, many facilities have settled with the SWRCB and environmental organizations for thousands or even millions of dollars in penalties and legal fees due to violations under the IGP. Overall, there will be increased scrutiny on facilities under this new IGP, because significantly more information will be made available to the public. In addition to submitting site maps and a facilitys SWPPP online for public access, sampling results will need to be uploaded to SMARTS within 30 days of receipt and any major updates to a facilitys SWPPP will require re-submission online also within 30 days.4

If these documents are not filed the SWRCB can issue fines of up to $37,500 per day. In addition, non-filers open themselves up to potential litigation by environmental organizations under the CWA. For example, it is costing one facility at least $7.5 million after they settled with the SWCRB. In addition, environmental lawsuits cost these 26 facilities millions of dollars, and these 3,000 facilities are currently facing litigation.

4. Other updates to the SWPPP will require re-submittal via SMARTS on a quarterly basis.

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Fines that threaten you

NOI Violations IGP Violations Conditional Exclusion Violations Reporting Violations

NOI ViolationsIndustrial facilities must submit their NOI, even if they were covered under the 1997 IGP, by July 1, 2015 or they will be subject to a penalty of $5,000 (California Water Code Section 13399.33). In addition, facilities that discharge industrial stormwater without coverage under the IGP are subject to fines up to $10,000 per day and $10 per gallon of stormwater discharged (California Water Code Section 13385). In some cases, the SWRCB or Regional Water Quality Control Board (RWQCB) will refer violators to the California Attorney General or County District Attorney for criminal prosecution and/or civil liabilities.

IGP ViolationsFor facilities that have coverage under the IGP, there are significant financial penalties, which may be up to $37,500 per day, for violations of the IGP (IGP page 73). In addition, facilities that violate the IGP may be subject to penalties under the CWA and under the Porter-Cologne Water Quality Control Act, which may have more significant penalties than the CWA.

conditional exclusion violations

The industrial facilities filing for an exemption from the IGP via a No Exposure Certification (NEC) are required to submit the required documents (site map and certify the NEC checklist). Failure to follow the conditional exclusion provisions in the IGP may result in penalties per California Water Code Section 13385 or 13399.25 being issued by the SWRCB or RWQCB (IGP page 13). The thousands of facilities previously exempt from the stormwater permit that were considered light industry now have to submit for coverage.

Reporting ViolationsPer the CWA, a facilitys Legally Responsible Person (LRP) knowingly making any false statements, representations or certifications in their records, such as inspection forms, or reporting, such as the annual report, is subject to fines up to $10,000 and/or up to two years of imprisonment (IGP page 73).

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In addition to potential penalties from the SWRCB or RWQCB, industrial facilities also are under the threat of lawsuits from citizen suits brought by environmental organizations.5 Citizen suits were authorized in the CWA (Section 505) as a way to enhance the USEPAs and states enforcement actions.6 To bring a lawsuit under the CWA against an industrial facility, a person or organization must have standing, which means they have or may be adversely aected by the facilitys actions. Typically these lawsuits are brought by an environmental organization, as opposed to just an individual with standing, and seek injunctive relief (legal action to prohibit additional violations from continuing), civil financial penalties, and/or reimbursement of legal costs and attorney's fees.

The process starts with the plainti (environmental organization with standing) sending a 60-day Notice of Intent to File Suit to the owner of an industrial facility. At the same time, the plainti needs to also send the notice to the state regulatory agency, such as the SWRCB and/or RWQCB, and the USEPA Administrator. The industrial facility then has 60 days after receiving the notice to come into compliance with the IGP. If the 60 day period expires and the regulatory agency does not require the facility to comply with the IGP and pursue civil or criminal enforcement action(s) against the industrial facility.

Often times the lawsuits are settled outside of court and include reimbursement of the plaintis attorney fees and expert witness costs, installing additional stormwater control measures, and financial contributions to other organizations for other environmental projects or activities.7 Injunctions require compliance with the IGP and oversight by the plainti, and submission of reports/plans. For example, the SWRCB examined 60 incidences where Notices of Intent to File Suit were sent between March 2009 and June 2010.8 They found that of the 42 cases they had information on, 18 were settled, 3 were not pursued, and 21 were in settlement discussion or litigation as of June 2011. In addition, during a fourth month period in 2014 (late July to late November), 57 Notice of Intent to File Suit letters under the CWA were filed against industrial facilities.9 It is not currently known how many of the 57 lawsuits have been settled and most likely many are still active.

5. Many other federal regulations, such as the American with Disabilities Act, allow for citizens suits. 6. Sometime organizations will also sue regulatory agencies under the CWA for failure to enforce their own

environmental regulations. For example, the California Coastkeeper Alliance is pursuing litigation against the SWRCB for the IGP. https://baykeeper.org/press_release/lawsuit-challenges-regulation-industrial-

pollution-san-francisco-bay-state-waters 7. Civil penalties would go to the federal government

8. http://www.waterboards.ca.gov/water_issues/programs/enforcement/docs/citizen_suits/citizen_suit_report.pdf

9. http://www.candirm.com/blog/17313/

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other

risks to you

Some of the environmental organizations, especially the ones that file multiple lawsuits, often have a campaign or initiative that they publicly announce and pursue litigation based on a specific thesis or targeted group of facilities. For example, San Francisco Baykeeper, has a Bay-Safe Industry Campaign10 that specifically is targeting the 1,300 industrial facilities under the old IGP in the San Francisco Bay area and have reached settlements with (more details below) many of the facilities they targeted.11 Per the SWRCB report, some environmental organizations enforcement actions appear to have a standard set of deal terms to obtain injunctions and financial considerations.

The risk to industrial facilities is not just financial due to the penalties, legal fees, and expert witness fees involved with regulatory and environmental

enforcement actions and lawsuits, but also to their public image. Often times, environmental organizations will specifically target well-known, large

companies as they have both the financial resources to pay and are more likely to settle to protect their image. In some cases, the agreement between the

SWRCB and facility includes supplemental environmental projects (SEP) where up to 50% of the penalty is used to fund other environmental projects.12

10. http://baykeeper.org/our-work/bay-safe-industry-campaign 11. http://baykeeper.org/articles/successful-legal-action-clean-industrial-runo-pollution

12. http://www.waterboards.ca.gov/rwqcb5/water_issues/enforcement/sep_policy_2009.pdf

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In some cases, the threat of legal turns i n t o r e a l i t y a s t h e S W R C B a n d environmental organizations actively and often aggressively pursue litigation against industrial facilities. For one

limestone mine and cement plant in the San Francisco Bay area, the USEPA, Department of Justice, and California Water Board pursued enforcement actions against them for violations of the IGP between 2009 and 2014. The facility was ruled against during legal proceedings in May 2015 and has agreed to pay $7.55 million in facility improvements and civil penalties.13

The facility was assessed civil penalties of $37,500 per day by the courts for violations of the IGP between April 7, 2011 and May 1, 2014.14 These violations added up to a total penalty of $2.55 million (68 days of penalties). In addition, the facility has to spend $5 million on wastewater and stormwater treatment system improvements (advanced BMPs), which is an expansion of the interim treatment system previously installed. The BMPs are being implemented to treat stormwater coming from the facility containing sediment and metals.

It is not only the SWRCB that will bring legal action resulting in significant financial penalties against facility, but also environmental organizations. In the San Francisco Bay area, the San Francisco Baykeeper, an active environmental organization, has targeted industrial facilities through a dedicated campaign.15 Between April 2012 and April 2015, they settled 26 cases they pursued against industrial facilities in the San Francisco Bay area. Those cases included three auto dismantlers, one quarry, four shipyard/boat repair facilities, one bulk marine terminal (settlement of more than $1.4 million),16 five metal/coating manufacturers, eleven recycling/waste facilities, and one concrete manufacturer. Settlements ranged from financial penalties paid to other non-profits, such as the Rose Foundation17, for stormwater projects, payment of plaintis legal and expert witness fees, and forced improvements to stormwater management systems, requiring minimum expenditures. Plus in many cases continued monitoring and oversight by Baykeeper was also required with the threat of further financial and legal costs, if settlement conditions are not met.

Where the

risks turn into Reality

13. http://www.estormwater.com/cement-plant-cut-toxic-discharges-san-francisco-bay?eid=286117936&bid=1066308

14. http://www.justice.gov/sites/default/files/enrd/pages/attachments/2015/04/30/lehigh_complaint.pdf 15. http://baykeeper.org/articles/successful-legal-action-clean-industrial-runo-pollution

16. https://baykeeper.org/blog/major-bulk-shipping-terminal-agrees-stop-toxic-contamination-bay 17. $45,000 paid to the Rose Foundation http://baykeeper.org/blog/union-city-pipe-factory-agrees-protect-bay-

toxic-runo

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mapistry as your

solutionTo avoid the financial costs, time drain, and public relations damage associated with a regulatory enforcement action or environmental lawsuit, a facility must be in compliance with the new IGP today. The SWRCB has produced a helpful guide for facilities to use to get started. If you are currently covered under the 1997 IGP, you will still need to recertify your NOI and update your site map and SWPPP. If you have not previously had coverage under the IGP, you will need to submit your NOI to the SWRCB along with a site map and SWPPP.

Mapistry provides site map tools with pre-loaded layers and maps plus a built-in guide to meet the new IGP site map requirements. Mapistrys SWPPP builder oers you through a series of questions, in less than an hour, to automatically generate a 30+ page SWPPP. Mapistrys stormwater experts can help you through the entire site map and SWPPP development process, and answer your questions along the way.

The new IGP has a number of new sampling, inspection, and BMP requirements that facilities need to be aware of prior to the July 1st deadline. Mapistry's free webinars on the new permit are a great way to get started! When updating your SWPPP and site maps, begin by doing a site inspection of the facility to identify industrial activities, materials storage areas, BMPs, and discharge locations. You can use Mapistry on a tablet to GPS locations of BMPs and discharge locations right on your site map. If current BMPs are not suicient, you will need to implement new ones or update existing ones, such as starting a sweeping program for removing sediment and trash from paved areas. At a minimum, a good inspection program combined with a strong preventative maintenance program can spot problem areas before they get out of control and even prevent new problems from arising.

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The Costs and Options for a

solutionMapistry provides a unique solution for industrial facilities and engineering firms & consultants in California to file and update stormwater permits, thereby complying with new stormwater permit requirements that go into eect on July 1st, 2015. Previously, the only solution available to industrial facilities was hiring a consultant. For consultants, the solution was to use an old SWPPP document in Word and have one employee write the plan and another make the site maps in CAD or Corel Draw. Mapistry saves time and money, helping facilities avoid costly fines and lawsuits.

Mapistry Solution

ConsultantNon-

Compliance

Cost $500 - $2,500 $1,500 - $25,000 Potentially $1MM+

Your Time 30+ Minutes 3 - 20+ Hours Potentially Years

Emails/Calls

0 6 - 12+ Potentially Hundreds

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Besides updating their site map and SWPPP, industrial facilities need to be p r e p a r e d f o r t h e m o n t h l y v i s u a l inspections they will need to conduct and four sampling events necessary each year. The key is setting up a centralized location18 for keeping track of completed

inspections and sampling results. Usually you want the stormwater team leader to be in charge of organizing the records and assigning a team member to conduct all the inspections. Therefore, starting the 2015-2016 reporting year with a centralized recordkeeping system is key to managing the SWPPP, site maps, required inspections (16 total), and sample results (four sampling events up from two in the old permit).

For sampling, a facility or consultant should establish a relationship with an environmental testing laboratory, who will supply the containers necessary for sampling. The laboratory often will pickup the samples for free after sampling events, so establish the correct point of contact at the laboratory to schedule pickups. The best way to minimize your risk of lawsuits and enforcements is to start early and get organized. Feel free to contact our stormwater experts at Mapistry if you would like to be connected to some environmental laboratories in your area. We are happy to make a connection (for free) to some of the best environmental laboratories we have worked with over the years.

maintaining an Ongoing

solution

18. Mapistry will be launching their dashboard for inspections and sampling results in June, 2015.

The new IGP in California goes into eect on July 1, 2015. For industrial facilities time is running out to get their site map and SWPPP updated and filed with the SWRCB. There are significant financial penalties for non-compliance (up to $37,500 per day) that the SWRCB can enforce and the threat of environmental organizations citizen lawsuits is looming over facilities (multi-million dollar settlements and decisions). The key to minimizing your risk and the financial costs is to get started immediately and have an organized approach to inspections and sampling. The top things to remember:

Lawsuits and notices of violations have been filed against industrial facilities Get in compliance by filing your NOI by July 1, 2015 Update your site map and SWPPP by July 1, 2015

Summary

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Based out of Oakland, CA, Mapistry provides easy to use stormwater permit compliance tools that allow consultants and facilities to quickly produce their site maps and SWPPPs and conduct inspections. Its online software eliminates the need for specialized training and puts powerful mapping and automated plan development features in the hands of everyone, not just specialists. Mapistry was launched because the complexity of existing geographic information system (GIS) software and the time-consuming pain of writing stormwater plans. The company is driven by its passion for big challenges and building a truly intuitive stormwater management workflow.

For more information, visit www.mapistry.com.

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