California Commercial Litigation and Business Counseling Law Firm
Specialized in Proposition 65

By William W. Funderburk Jr. and Marisa Moret

© Copyright 1997 Daily Journal Corp. Reprinted with Permission.

William W. Funderburk, a partner at Radcliff, Frandsen & Dongell in Los Angeles, specializes in environmental matters and venture capital. Marisa Moret, an associate at the firm's San Francisco office, specializes in environmental litigation.

Many industrial, manufacturing, transportation, and municipally owned operations, such as airports, landfills, treatment works and school districts, face new storm water discharge permit requirements as a result of a recent action by the California State Water Resources Control Board.

On April 17, the board adopted a revised General Industrial Storm Water Permit. Water Quality Order No. 97-03-DWQ. The general permit replaces the previously issued industrial storm water permits, and is mandated under the federal Clean Water Act Section 402(p). 33 U.S.C. Section 1251 et seq.

Here's what to expect in the coming months. Under the new general permit, regulated facilities must do the following:

  • Submit an abbreviated notice of intent (for existing dischargers) within 45 days of receipt from the state board. (At press time, the state board had not sent the package to dischargers.)
  • Continue with requirements of the previous general permit through June 20, including submitting annual reports to the regional water boards by July 1.
  • Revise the existing storm water pollution prevention plan and implement any necessary revisions by Aug. 1. The SWPPP does not have to be submitted, unless requested by the Environmental Protection Agency, the state board or a regional board.

The newly reissued general permit retains many of the features and the same overall structure of its forerunner. There are four basic requirements in the new general permit:

  • Submission of a notice of intent to comply with the general permit to the state water board.
  • Preparation and implementation of a storm water pollution prevention plan.
  • Preparation and implementation of an individual or a group storm water monitoring program that includes an annual site audit and visual and chemical monitoring.
  • Submission of an annual report which summarizes pollution prevention efforts and visual and chemical monitoring to the Regional Water Quality Board where the facility is located.

The new general permit also maintains the state board's policy of disfavoring numeric effluent limitations for most storm water dischargers. The permit continues to adopt the federal regulations that the best management practices should be used over numeric criteria for storm water permits. See 40 C.F.R Section 122.44(k).

The general permit also leaves undisturbed a prohibition to "cause or threaten to cause pollution, contamination, or nuisance" without defining any of these terms. General Permit, Discharge Prohibitions, Section A.2. Finally, the general permit requires, as previously, that dischargers control pollutant discharges using the best available technology economically achievable and best conventional pollutant control technology. Control Water Act Sections 301 and 402.

There are several differences, however, in the new general permit. First, the state board attempted to resolve a contentious standards issue. Previously, dischargers violated the general permit if they caused or contributed to a violation of water quality standards under the California Ocean Plan or the applicable Regional Board Basin Plan. The compromise provides an innovative enforcement shield, requiring the discharger to submit a report within 60 days of determining that discharges are caused or contributed to exceeding the applicable water quality standard. To qualify, the discharger must implement best management practices at the facility that achieve best available technology economically achievable and best conventional pollutant control technology. See General Permit. Receiving Water Limitations. Sections C.24. If the regional board approves the report. the exceeding of water quality standards will be allowed to continue.

Second, if certain requirements consistent with local agencies and the regional boards are met, the state board has eased the absolute prohibition on nonstormwater discharges, which occur in dry weather, to include some relatively non-threatening sources (e.g.. fire hydrant flushing, potable water sources and drinking fountains). See General Permit. Special Conditions, Section D.

Third, the state board has provided regulated facilities with several mechanisms to reduce sampling requirements or to propose alternate monitoring programs. See General Permit. Monitoring Program and Reporting Requirements, Sampling and Analysis Exemptions and Reductions Section B.12.

The general permit retains the storm water sampling exemption for facilities where no exposure of significant materials occurs. It also allows dischargers credit for participating in individual monitoring or in a state board-approved group during the previous permit term.

The general permit can be enforced by a government agency civilly and criminally or a private citizen group. The state board or regional board and the EPA have state and federal enforcement power. See, e.g., 33 U.S.C. Section 1319 (empowering the EPA to issue administrative orders or to bring civil actions or criminal prosecutions) and Water Code Section 13300 et seq.

Additionally citizen groups may also sue for general permit violations - and are doing so in increasing numbers - after the requisite 60-day notice is provided to the discharger and appropriate agencies. See 33 U.S.C. Section 1365. If, however; an agency has filed suit and is diligently prosecuting the same violation, or if the violator is prosecuted and has paid a penalty under a comparable state law, the citizen suit may be pre-empted by the so-called citizen-suit bar. See 33 USC. Section 1319(g) (5) (A).

Exercising the citizen-suit bar to Clean Water Act suits and obtaining a defense judgment, however, is much more difficult than it appears. Citizen groups will often sue even if a government agency is prosecuting the discharger, thereby resulting in exactly what the bar was intended to prevent. Citizens for a Better Environment v. Union Oil Co. 83 F.3d 1111 (9th Cir. 1996), cert. denied, 177 S.Ct. 789 (1997).

Under Water Code Section 13330(a), parties interested in challenging the general permit must file a petition for review in superior court within 30 days after service of the general permit.

All materials copyright 1999-2003 by Stanzler Funderburk & Castellon LLP. All rights reserved.


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