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Revised Statewide General Construction Permit

Revised Statewide General Construction Permit. September 23, 2010 CMAA Southern California Chapter Peter A. Nyquist ALSTON & BIRD LLP (213) 576-1142 pete.nyquist@alston.com. Topics. Context and Legal Framework for Regulation of Storm Water How We Got Here

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Revised Statewide General Construction Permit

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  1. Revised Statewide General Construction Permit September 23, 2010 CMAA Southern California Chapter Peter A. Nyquist ALSTON & BIRD LLP (213) 576-1142 pete.nyquist@alston.com

  2. Topics • Context and Legal Framework for Regulation of Storm Water • How We Got Here • Storm Water Permit Enforcement Issues • Recommended Readiness Measures

  3. Regulation of Storm Water • Federal Clean Water Act • Initially focused on reducing “point source” pollution by requiring individual NPDES permits for discharge of pollutants • Section 402(p) • 1987: CWA amended to create framework for regulating storm water discharges under NPDES program • 1990: USEPA adopts final regulations requiring NPDES permit coverage • Porter-Cologne Act (California) • SWRCB delegated authority to administer NPDES program under Water Code § 13240 et seq.

  4. How We Got Here • General Construction Permit Milestones • WQO 99-08-DWQ adopted in August 1999 • revised March 2003 • expired August 19, 2004 -- remained in effect pending new permit • March 2007 – April 2009 • SWRCB issues series of preliminary, proposed and revised drafts of permit • numerous public workshops, public comments, stakeholder input • June 17, 2009: SWRCB hearing • September 2, 2009: Final SWRCB hearing and permit adoption • July 1, 2010: Effective date of revised permit

  5. Enforcement Issues • Enforcement as Statewide Priority • Evolving political and regulatory landscape • Limited state resources • “Citizen army” • Enforcement Mechanisms • State enforcement of civil or criminal penalties • Private enforcement through citizen suit authority • Local/municipal enforcement of co-extensive requirements

  6. Year N o. of Violations % with Enforcement 2002 1,243 N/A 2003 926 N/A 2004 577 N/A 2005 294 N/A 2006 229 204 (89%) 2007 156 139 (92%) 2008 238 234 (98%) 2009 80 69 (80%) Storm Water Enforcement: “The Numbers”* • Region 4 Permittees: • Construction: 2,486 • Industrial: 2,807 • Municipal: 100 Total: 5,393 (~25,000 statewide) • Region 4: Number of Storm Water Permit Violations * Source: 2009 Water Code Section 13385 Enforcement Report (Jan. 2010)

  7. Violation Category Non - Priority Violations Priority Violations Total % of Total Reporting 644 88 732 63% Deficient BMP Implementation 285 6 291 25% Incomplete/Insufficient SWPPP 84 6 90 8% Unauthorized Discharge 31 2 33 3% Other Requirements 11 0 11 1% Failure to Pay Fees 4 0 4 ~0% Monitoring 2 0 2 ~0% Total 1,061 102 1,163 100% Storm Water Violations By Category 2009

  8. RWQCB Enforcement Tools • RWQCB Notification of Violations • Verbal Notification • Notice of Violation • Inspection Reports • Enforcement Letters • Section 13267 Request for Information • CAOs • ACLs • Attorney General Referral

  9. Water Code Section 13385 • Potential ACL Penalties • Up to $10,000 per violation and each day violation occurs • For discharges not cleaned up and which are greater than 1,000 gallons, and additional $10/gallon penalty can be assessed • Mandatory Minimum Penalties • Generally, chronic or single acute violation (an exceedance of either 20 or 40 percent of the permitted limit, depending on the constituent) of certain constituents • Monitoring reports more than 30 days late • MMP of $3,000 to be assessed when 4 or more effluent limitation violations occur within 6 month period

  10. ACL Penalty Assessments • SWRCB Goals: • Fair and consistent liability amounts • Eliminate economic or competitive advantage from non-compliance • Penalty should bear relationship to: • gravity of violation • harm to beneficial uses • integrity of regulatory programs • Deter future violations, both by the violator and the regulated community

  11. Potential Areas for Increased Enforcement Under Revised General Construction Permit • Old Permit • Enforcement driven by field observations and inspections • New Permit • Newly required submittals may result in increased violations: • Permit Required Documents (PRDs) • SWPPP or risk determination not prepared by QSD • NEL/NAL and annual reports • New BMP and inspection requirements • Addition of prescriptive BMP requirements for all risk levels • Soil Cover: i.e., has effective soil cover been provided for “inactive areas,” finished slopes, and completed lots?

  12. Clean Water Act Citizen Suits • CWA Section 505(a) permits private parties to commence civil action against: • “any person . . . who is alleged to be violation of (A) an effluent standard or limitation . . . or (B) an order issued by . . . a State with respect to such standard or limitation.” • Remedies • Injunctive relief • Civil penalties, up to $32,500 per day, per violation • Attorneys’ fees

  13. Clean Water Act Citizen Suits • Santa Monica Baykeeper v. L&V Tomalevski Architects • Alleged discharge of dredge and fill material, construction debris, refuse, polluted storm water and non-storm water from adjacent residential development projects in Mandeville Canyon • Settled on favorable terms, but: • costs of defense • additional mitigation measure costs as condition of settlement • Santa Monica Baykeeper v. Kramer Metals, Inc. • 619 F. Supp. 2d 914 (C.D.Cal 2010) • Alleged SWPPP deficiencies, inadequacies of BMPs, failure to comply with monitoring and reporting plan requirements.

  14. CERCLA Liability? • United States v. WSDOT (W.D.Wash, June 7, 2010) • State agency (that designed highway storm water runoff system that discharged contaminants to waterway) liable as “arranger” under CERCLA • On The Other Hand . . . • “Federally Permitted Release” Exemption: • Discharges in compliance with NPDES permit requirement (e.g., CA Statewide General Construction Permit) are not liable under CERCLA for response costs (42 U.S.C. § 9707(j)) • Carson Harbor Village v. Unocal, 287 F.Supp.2d 1118 (C.D.Cal 2003) • Municipalities operating storm water systems in compliance with permitting schemes not liable under CERCLA as “arrangers”

  15. Final Thoughts: Rain Season Readiness Measures • Understand risk-based approach and how to perform calculations and project planning • Develop protocols for rain event readiness • Begin monitoring edge of property/discharge point runoff for turbidity and pH • If applicable, understand receiving water characteristics and look for background data where available • Prepare for electronic document submittals and reporting requirements for monitoring information • Account for increased costs of compliance

  16. Thank You! Peter A. Nyquist ALSTON & BIRD LLP (213) 576-1142 pete.nyquist@alston.com

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