Stormwater Regulation In Wa April 2010

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STORMWATER GENERAL PERMITS IN WASHINGTON:

COMPLIANCE REQUIREMENTS AND ADVICE

Allan BakalianZeno Drake Bakalian P.S.

4020 Lake Washington Blvd.Kirkland, WA 98033

425 822-1511

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Allan Bakalian is a partner with Zeno Drake Bakalian P.S. in Kirkland, WA. He has practiced environmental law in Washington and Oregon for over twenty years. He began his career as an Assistant Regional Counsel for the U.S. Environmental Protection Agency in Seattle, spent 9 years as Senior Environmental Counsel for Univar USA, and has been in private practice since 2001. He has expertise in hazardous waste investigations and cleanups, regulatory compliance and enforcement actions, stormwater and sediment contamination, natural resource protection, real estate due diligence and transactions, zoning and land use. Mr. Bakalian has counseled and successfully represented individuals and business clients in numerous environmental, land use, regulatory enforcement and permitting matters, administrative appeals and litigation. He earned his J.D. degree, with honors, from Lewis and Clark Law School in Portland, Oregon.

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Stormwater – The Big Picture

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Stormwater Pollution Sources Runoff from construction sites Urban and municipal stormwater

runoff from roads and commercial development to storm sewer systems

Industrial stormwater runoff and collection to stormwater sewers

Sand and gravel operations

STORMWATER REGULATION

Federal regulation by EPA Clean Water Act NPDES Permits Stormwater permits in Non-Delegated States

Washington Dept. of Ecology Stormwater General Permits Construction Industrial Municipal Sand and Gravel, et al.

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Stormwater General Permit Regulation in Washington

Ecology now administers each of the four stormwater general NPDES permit programs through a delegation of authority by EPA, pursuant to RCW 90.48.

Ecology has targeted and focused on improving stormwater quality and reducing stormwater quantity from all four regulated sources

In 2007, the legislature created the Puget Sound Partnership to oversee and implement over $238 million to clean up and restore the Puget Sound, its habitat and native species, earmarking $29M to reduce stormwater runoff

Industrial StormwaterIndustrial Stormwater Sources

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Industrial Stormwater Sources

Over 1280 industrial stormwater permit applications in Washington

General Permit focus on stormwater management for a broad spectrum of facilities with similar pollutant-generating activities, including: Impervious surfacesVehicles and petroleum usageDirt, dust, debrisMetals

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Industrial Stormwater Discharges

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Ecology Industrial Stormwater General Permit (ISWGP)

Re-Issued October 2009 Effective January 1, 2010 Self-Regulating/Self-Reporting Consensus Based Work Group

(2008-2009) Rewritten in “plain English” Technical revisions to

benchmarks and action levels10

New and Improved ISWGP?

SWPPP implementation required BMPs to be revised as necessary to

achieve incremental compliance New reduced benchmarks for zinc

and copper (required monitoring) Allows facility to suspend sampling

if runoff meets benchmark for four consecutive quarters

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ISWGP APPEAL

Boeing, Gunderson Rail, Copper Development Association

Columbia Riverkeeper, Puget Soundkeeper Alliance,

Olympians for Public Accountability, Arthur West

Case scheduled to be argued before PCHB October 18, 2010

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ISWGP APPEAL

Appeal involves challenges to Ecology’s jurisdiction, permit coverage, SWPPP conditions, sampling requirements, benchmarks, discharge effluent limitations, inspections, corrective action timelines and triggers, treatment BMPs, reporting and recordkeeping, and treatment requirements.

Permit conditions in effect pending appeal outcome

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ISWGP Compliance Requirements

Permit Coverage by SIC code (S1) Permit Application (S2) SWPPP (S3)

Signature and SubmissionBMPs to protect water quality

Sampling (S4)Quarterly SamplingFirst storm after Oct. 1Sample anytime during discharge

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ISWGP Compliance Requirements, Cont’d

Benchmarks (S5)EPA values Washington Specific for Copper and Zinc

Inspections (S7)Monthly CISM (certified industrial stormwater manager)

Corrective Action (Adaptive Management)Level 3 treatmentLevel 4 triggers regulatory action

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Major Changes to ISWGP Stormwater Pollution Prevention Plan

(SWPPP)Operational source control BMPs

Vacuum paved surfaces with sweeper Cover dumpsters Clean catch basins Inspect vehicles and equipment Properly store chemicals Prevent rainfall from accumulating in

containment areas

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Major Changes to ISWGP, Con’t

Operational source control BMPs Block drains during fueling Maintain spill log Prevent runoff to manufacturing areas Collect and treat wash water

SWPPP to be signed by PermitteeSampling

Each distinct off-site point (unless substantially identical outfalls)

Sample within first 12 hours of discharge

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Sampling Sample discharge from first fall storm event

after October 1 Four consecutive quarters of samples

required for benchmark attainment Quarterly DMRs and Visual Insp. Worksheets

Benchmarks and Effluent Limitations Copper (14 ug/L westside, 32 ug/L eastside) Inspect discharge locations for visible sheen

(oil and grease deleted) pH range is now 5.0 – 9.0, was 6.0- 9.0

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303(d) Listed Waters Effluent limits for discharges to impaired waters

Inspections Monthly inspections required

Corrective Actions Level 2 - For two consecutive quarters above

benchmark values (structural source control BMPs required)

Level 3 - For two consecutive quarters above benchmark values (treatment BMPs required)

Revise SWPPP; document in Annual Report

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Reporting All permittees must submit an Annual

Report by May 15 (beginning 2011) Annual report must document all Level 1, 2,

and 3 corrective actions

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Compliance and Inspection Issues

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Compliance Inspections Ecology inspects about 50% of

permitted facilities each year Focus on:

SWPPPAdequate BMPsSampling, Analysis, ReportingpH, turbidity, total zincVisible oil sheen

90% not in compliance with all permit requirements

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Inspections Targets Material storage/stormwater

contact Equipment and container spills and

leaks Loading and unloading; storage

activities Dust and airborne contaminants Catch Basins Wastewater and combined sewer

drain lines23

Joint Inspections Ecology and Seattle Public Utilities

using Puget Sound Partnership $$ Focus on individual drainages (e.g.,

Lower Duwamish River Basin) 240 storm drain outfalls Mapping Combined Sewer lines Eliminating stormwater discharges

to combined sewer pipelines

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Joint Inspection Targets

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Joint Inspections Wastewater discharge

compliance and permits Commingled Process and

stormwater catch basins Discharge monitoring (in line

grabs and sediment traps) Source control Sediment contamination source

identification26

Joint Inspections Material storage/stormwater

contact Equipment and container spills and

leaks Loading and unloading; material

storage areas Quarterly DMRs and Benchmark

compliance/ SWPPP revisions Catch Basins Wastewater and combined sewer

drain lines (dye testing)27

2002-2007 Enforcement Informal (warning letter) -

549Civil Penalty – 22Administrative Order – 20Notice of Violation - 2Notice of Correction -1

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Stormwater Sampling

Industrial Stormwater Compliance and Enforcement

Target Issues Permit Status SWPPP implementation and evaluation Sampling/Discharge Monitoring Reports

Quarterly Sampling for Turbidity (Benchmark is 25 NTUs) pH (Benchmark is between 5.0 – 9.0) Oil Sheen (Benchmark is no visible oil sheen) Copper (14 ug/L) Zinc (117 ug/L)

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Issues Additional Sampling Requirements for Specific

Industries (S.5) Sampling Procedures

First Fall Storm Event (after October 1) Collect samples within 12 hours of stormwater discharge

(unless outside of normal business hours or ‘not possible’) Representative Sample from each distinct offsite discharge

location (unless substantially similar source and site conditions)

Inspections (visual inspection by qualified person each month) Report permit violations/Notification of illicit discharges Inspection report log

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Issues DMR Reporting Requirements

Quarterly DMR within 45 days of end of quarter offsite discharge location Document and report sampling of any other pollutant(s) Document “no discharge” quarters

Annual Reports Due by May 15 beginning 2011 Ecology form report Document corrective action Records to be kept for five years

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Industrial Stormwater Compliance and Inspection

Tips Focus on Process and Documentation

SWPPP DMRs Inspection Logs Reports Corrective Action

Identify ways to improve process Assess Drainage ‘basins’ and collection system Evaluate Sheet Flow (e.g., a Point Source) Identify problem areas and consider catch basin treatment Evaluate covering process areas (No Exposure Certificate?)

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Industrial Stormwater Compliance and Inspection

Tips Know your stormwater and municipal

wastewater pipelines and discharges Educate your employees Assign responsibility for compliance in

all process areas subject to rainfall Follow the reporting and corrective

action procedures Evaluate and revise SWPPP annually

even if no corrective action 34

Washington Construction Stormwater General Permit Clearing, grading or excavation

of one acre or more Permit Status (2005 -2010) SWPPP BMPs Inspections Monitoring

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Inspection Target Points

Permit and SWPPP BMPs (silt fences, catch basin

protection, soil stabilization) Tracking in Roadway Erosion and riling Runoff Turbidity, pH

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Construction Stormwater Compliance Issues

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Construction Stormwater Discharges

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Soil Stabilization

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Runoff

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Sediment Entering Catch Basin

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Improper Cover/Stabilization

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What Happens When Things Go Wrong

Ecology issues inspection report with necessary corrections (technical assistance)

Warning Letter or 2nd Inspection if no follow up or corrective action

Opportunity to discuss and resolve BMP compliance

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What Happens When Things Go Wrong

Notice of Violation (last chance to comply)

Formal Administrative ActionCompliance deadlineAlternative is to appeal within 30 daysPollution Control Hearings Board (PCHB)Potential benefits of appealing ordersPotential detriments of appealing orders

Homeowner intervention

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Responding to Ecology Notice

First line of defense is timely compliance

Second line of defense is the written response

Failure to respond is not an option! Determine responsibility for response

CESCL Lawyer Consultant

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Ecology Civil Penalty Actions

(When too Late to Resolve) Typical Violations

No permit or SWPPP Inadequate SWPPP/BMPsReporting and SamplingWater Quality Violations

Benchmarks Action Levels

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Ecology Civil Penalty Actions

Seek technical and legal advice 30 days to file appeal with PCHB or Request for Mitigation

Presented to EcologyDetermination by EcologyCan appeal to PCHB

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PCHB Appeals

Formal Notice of Appeal filed and served PCHB scheduling order Prehearing Statement and Issues Prehearing Conference Document Request and Discovery Settlement Negotiations Administrative Hearing Judicial Appeal

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Enforcement Issues and Pitfalls Operator and/or Owner Personal Liability Employee and/or manager liability City ordinances and code requirements Construction at partially completed

residential plats (HOAs, access and common areas)

Property Sales and Permit Transfers (subject to written Agr. and approval)

Permit Termination (100% stabilization subject to Ecology Approval)

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Problems can arise at uncompleted developments still under permit

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Lessons learned to avoid problems

Plan ahead before clearing (LID?)Contract considerationsObtain Permit and Prepare a practical

SWPPP before diggingPrepare inspection reports and file DMRs Maintain BMPs and address failures Oversight and inspection is criticalAddress any complaintsHOA control

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FIVE POINT COMPLIANCE SUMMARY 1. Obtain Permit and Develop SWPPP

Before Construction2. Implement and Maintain BMPS (CESCL)3. Undertake Corrective Action and

Update BMPs (and SWPPP) as necessary

4. Respond timely to inspection reports, warning letters, orders and NOVs

5. Terminate or transfer permit as soon as possible

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Stormwater Regulation In Wa April 2010

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