Industrial Stormwater Permitting Update

July 2016

Recent court decisions indicate a need for every industrial or manufacturing facility to review its stormwater related compliance status to avoid potentially significant liability. There is significant citizen suit activity in the Pacific Northwest and Alaska, resulting in decisions favorable to plaintiffs that draw fine lines on applicability and compliance issues. Moreover, agency inspections are on the rise, and aggressive inspectors are imposing liability by overstating the need for permits.

The first step for each facility is to determine the need for a permit based on the type of business and whether there is a discharge to surface water. If a permit is required, the second step is to evaluate whether the facility can avoid permitting with a “Certificate of No Exposure.” Avoidance is the preferred strategy if at all possible, because the available general permit imposes costly and burdensome compliance obligations, and the process for issuance of an individual permit will typically impose the same obligations plus require a lengthy and public process. The third step is to assure proper permitting and permit compliance for facilities that cannot avoid permitting.

Stormwater permitting applicability issues require knowledge and expertise regarding the assignment of Standard Industrial Classification or SIC codes (now called NAICS codes) and the physical and legal parameters of whether a discharge reaches a “surface” water, as well as the complex regulatory systems for both general and individual water discharge permits. Ideally, facility management should involve both a qualified environmental consultant and legal counsel for a team effort.

Except in extraordinary circumstances where a regulatory agency makes findings of significant threat, Industrial Stormwater General Permits typically apply only to facilities that are classified in certain listed SIC codes. For example, it is important whether a facility engages in wholesale or retail trade (petroleum/LPG bulk distribution plants), and whether there is vehicle maintenance or equipment cleaning at transportation related facilities. No permit is required if the facility is not in one of the listed categories, or if the agency has not made specific findings of a significant threat from a discharge.

A listed industrial facility is only required to have permit coverage if they discharge to a surface water. This can be as minimal as a ditch, small stream or pond, or a wetland. Discharges solely to the ground, or even to an underground injection well, typically do not need a permit unless the agency has made a finding of significant threat (but note that injection well discharges may require a separate permit). Recently, some inspectors from the Washington State Department of Ecology have erroneously ordered facilities discharging solely to infiltration swales or sumps to obtain permit coverage without making findings of a significant threat.

The Certificate of No Exposure is a valuable tool to avoid the burdens of plan development (SWPPP), monitoring and reporting and the high costs of treatment. Covered facilities regularly have difficulty meeting zinc, copper and turbidity benchmarks and have to install expensive treatment equipment.

RECENT CASE LAW

The case of Alaska Community Action on Toxics vs. Aurora Energy Services LLC[1] illustrates the complexity involved in making stormwater permitting applicability decisions. The Seward Coal Loading Facility had stormwater discharges both from its land based operations and its overwater conveyor and shiploader. Incidental to ship loading, some coal fell into the bay. This discharge was well known to regulators who had observed and noted it during inspections including historical observations of coal accumulations on the seabed. The facility had operated for years under an individual NPDES stormwater permit, and had written a SWPPP with Best Management Practices that addressed both the stormwater discharges and the incidental coal spillage. The facility was subject to EPA and state agency inspections noting that it was in compliance.

Following EPA’s written recommendation, the facility abandoned the individual permit and obtained coverage under a general industrial stormwater permit. With continuing EPA acquiescence and state agency support, the facility operated under the general permit for years. Then came a citizen suit notice and litigation, resulting in the district court finding that there was a “permit shield” for the facility and thus no violation given that the incidental discharge of coal was adequately disclosed to and reasonably anticipated by the permitting authority.[2]  On appeal, the 9th Circuit reversed, ruling that the express terms of the general permit prohibited the non-stormwater coal discharges, that there was no permit shield, and that the facility was liable for not having the proper permitt.[3]

The recent case of Puget Soundkeeper Alliance v. Cruise Terminals of America, LLC,[4] demonstrates the need for careful and detailed evaluation of permitting obligations. One portion of the cruise terminal pier discharged to a municipal stormwater sewer that flowed to a surface water. Another portion of the pier drained into a combined stormwater and sanitary sewer system. The owner of the facility—the Port—had obtained a permit for the discharge to the storm sewer but not for the discharge to the combined sewer. However, that permit was for a municipal discharge only, and did not cover any industrial wastewater. Moreover, there was a Vessel General Permit that potentially covered discharges incidental to the operation of any vessel docked at the pier. The court found that no permit was required for the discharges to the combined sewer system because they were not to a surface water.[5]

The parties litigated whether the following discharges from the land based operations on the pier were “industrial” in nature:

  • Sewage and bilge water transfers (not industrial);
  • Emergency vehicle repairs (not industrial);
  • Gangway operations (not industrial);
  • Bulk lubricant transfer (likely industrial if it is a “vessel fluid change” rather than a transfer of fluid for later use as a lubricant);
  • Vessel washing (industrial); and
  • Fueling of onshore cranes (possibly industrial, if exchange of fuel canisters filled offsite occurs at a relatively fixed location).[6]

This analysis reveals the high level of intensity and excruciating level of detail required in any stormwater permitting applicability determination and any compliance evaluation.

Another recent case, Puget Soundkeeper Alliance. v. Whitley Mfg. Co.,[7] reinforces the legal standard that all industrial stormwater discharges to surface water require either an individual NPDES permit or general permit coverage even if there is no proof that the discharge contains “pollutants.” To make a case for a typical NPDES claim under Clean Water Act § 311, a plaintiff or agency must prove that (1) there was a “discharge” (2) of a “pollutant” (3) to a “navigable water” (4) from a “point source” (5) without permit authorization.[8] However, claims related to discharges of industrial stormwater are brought under Clean Water Act § 402(p)(6) and EPA regulations, not under § 311.  Therefore, an enforcement action can be brought for an illegal discharge of industrial stormwater where precipitation contacts industrial activity at a covered facility, even if there are no pollutants discharged.[9]  At least in the 9th Circuit, industrial stormwater is itself the “pollutant.”

In summary, industrial operations need special attention to stormwater discharge permitting compliance, because the permit applicability, choice of permit, and permit compliance issues are fraught with complex operational, technical and legal issues.

________________

ELN works closely with highly qualified environmental consultants to provide a team based approach and cost effective solutions to industrial stormwater permitting problems. We have recently obtained the following positive results for clients:

  • Upon receipt of a citizen suit notice to a trucking company, orchestrated facility operational changes, an Ecology inspection, and issuance of a Certificate of No Exposure thus avoiding the need for a permit, before expiration of the 60 day notice period and filing of a complaint. This strategy avoided all liability including plaintiff’s attorney’s fees and costs.
  • In response to an Ecology inspector’s demand at a facility located on the banks of a major river that a discharge solely to ground without any surface water discharge required a permit, we strategized facility improvements to separate “process” water from stormwater, improved stormwater infiltration structures, and reported to Ecology that no permit was necessary. Ecology after many months has apparently accepted the report.
  • Counseled client on applicability of industrial general permit and need for individual permit in context of citizen suit and agency disagreement about proper permitting approach, and assisted client in obtaining individual NPDES permit that protected against future liability.

Please contact us for further information or to discuss your issues:

Douglas S. Morrison
Environmental Law Northwest
P.O. Box 6786
Bellevue, WA 98008

doug@nwenvlaw.com
(425) 556-4303
www.nwenvlaw.com

 

AV Preeminent® Peer Review Rated

DISCLAIMER:  This article provides general information, news or educational materials and does not provide legal advice which may only be provided by ELN under a written representation agreement and based upon the specific facts presented. Use of this article does not create an attorney-client relationship between ELN and any reader.

[1] 765 F.3d 1169, 1171 (9th Cir. 2014) cert. denied, 135 S. Ct. 2830, 192 L. Ed. 2d 847 (2015).

 

[2] 940 F. Supp. 2d at 1019.

 

[3] 765 F.3d at 1174.

 

[4] No. C14-0476 JCC, 2015 WL 7431415, (W.D. Wash. Nov. 20, 2015)

 

[5] We caution reliance on this finding because there was no analysis whether those discharges would go to a municipal treatment system and then to a surface water, requiring a “pretreatment” permit. See e.g., 40 CFR Part 403, WAC Chapter 173-208, and King County Code Title 28.

 

[6] 2015 WL 7431415, at *12-18.

 

[7] No. C13-1690RSL, 2015 WL 6870716 (W.D. Wash. Nov. 9, 2015).

 

[8] Id. at *1.

 

[9] Id at *3.

Click to view the PDF version