2012 SWAAAE Monterey Conference: Clean Water act compliance issues

1. 2012 SWAAAE Monterey Conference: Clean Water act compliance issues Presented By: Mark J. Dillon Gatzke Dillon & Ballance LLP

2. Purpose of storm water regulation • Use storm water as a resource. • Capture water and use it, for example, for irrigation and infiltration for groundwater recharge. • Low impact development standards; green infrastructure design. • Reduce harmful pollutants, fertilizers, debris and other materials carried into storm drains, drainage systems and ultimately rivers, lakes, and ocean.

3. Regulatory construct • State water boards, such as California’s, draw their authority for storm water regulation from the federal CWA, which places the framework for regulating storm water discharges under the NPDES permit system. • Cities and other jurisdictions that operate large, medium, and small storm water systems, as well as specific industrial and construction activities, must apply for storm water permits.

4. Initial Permitting Considerations • Most airports require multiple permits: Industrial, MS4, Construction. • Focus of this presentation: Industrial permits. • Airports are covered by the general industrial storm water permit as “Transportation Facilities” (SIC code 45XX Sector S.). • The “industrial activity” that occurs on airports, within their fence lines, includes vehicle maintenance, equipment cleaning, and aircraft de-icing.

5. Airport permitting problems • Multiple Tenants: Commercial aircraft; GA aircraft; military aircraft; FBOs; fuel providers; concessionaires; fire protection; etc. • Tenants conduct many of the industrial activities covered by the permit, as authorized by their lease. • Overlapping Operations: Many tenant operations overlap with one another and with airport operations, and are not be restricted to the actual leasehold. • Coverage: For the most part, the airport owner/operator obtains discharge coverage for the airport as a whole, and mandates tenant compliance through lease terms. • Under certain circumstances (e.g., FBO hangar facility), tenants may secure their own permits.

6. Airport permitting Compliance Challenges • Many BMP treatment options are not compatible with airport operations. • Airports are designed with flat impervious surfaces with little or no landscaping, fast draining concrete drainage and no physical obstructions or bird attractants. • FAA regulations prohibit many common BMPs, such as raised curbs, gutters, ditches, open basins with standing water, and debris creation areas. • Subsurface structural BMPs may be compatible; however, they are often financially impractical to install and maintain.

7. SWRCB’s Industrial storm water general permit Order No. 97-03-DWQ • On April 17, 1997, the SWRCB adopted the GIP for regulation of storm water discharges associated with industrial activity. • The GIP is an NPDES permit that regulates discharges associated with 10 broad categories of industrial activities. • The GIP requires implementation of management measures that will achieve the performance standard of BAT and BCT.

8. SWRCB’s Industrial storm water general permit Order No. 97-03-DWQ, Cont. • The GIP requires a Permittee to develop a SWPPP and a monitoring plan for the facility that is covered by the permit. • The SWPPP identifies and evaluates sources of pollutants from the industrial activities at that facility and identifies, describes, and implements BMPs to reduce or prevent the discharge of those pollutants. • The GIP requires that an annual report be submitted each July 1.

9. Draft GIP • The current GIP has expired but remains in effect until a new permit is adopted. • In January 2011, a draft GIP was released for public review and comment. • A public hearing was held in March 2011. • The deadline for written comments closed in April 2011. • Anticipate the release of a new draft GIP in approximately March 2012 for public review and comment. • Public workshops and outreach are expected in March/April, with public hearing(s) to follow. • Staff hopes to present the GIP for adoption by its Board sometime in the summer or fall of 2012.

10. 2011 Draft GIP, cont. • Airports and their organizations took note of the January 2011 draft permit, with comment letters submitted by: • Air Transport Association • Airport California Monitoring Group • California Airports Counsel • Los Angeles World Airports • Sacramento County Airports System

11. Airport-related comments • Object to the additional monitoring requirements – creates significant administrative and financial burden • Object to the elimination of group monitoring • Object to the use of NELs • Request for NALs and effluent limits specific to airport facilities • Object to the design storm designation (10 year, 24-hour storm event) • Object to SWPPP certification requirements for minor revisions – creates an administrative and financial burden • Object to sampling collection requirements, which require a storm event with more rainfall than is typical for some regions in California • Object to surface structural BMPs as incompatible with airport operations

12. Next gip draft - changes • Staff will likely recommend: • Removal of NELs. • Use of USEPA benchmark values as NALs. • NALs will drive a progressive (iterative) approach, termed ERAs. • Modified Group Monitoring. • Improved data quality and breadth of information gathered. • Designation of a Qualified Industrial Stormwater Practitioner. • Significantly reduced burden on dischargers to self-inspect facilities.

13. Exceedance response actions • SWRCB will likely create two levels of response to defined triggers. • The triggers are calculated as an exceedance of 2.5 times an NAL for a single-storm event (daily average aggregating all outfalls); or the exceedance of an NAL for an annual average of all samples taken for a constituent over the year.

14. Exceedance response actions: level one After the first exceedance, the discharger must evaluate industrial pollutant sources and the SWPPP to identify where additional operational source control BMPs and/or SWPPP implementation measures are necessary to prevent or reduce industrial pollutants in storm water discharges in compliance with BAT/BCT.

15. Exceedance response actions: level one, cont. Based on that evaluation, the discharger must do one of the following four options: • Implement additional operation source control BMPs and SWPPP implementation measures and revise the SWPPP; or • Certify that the exceedance indicator was triggered as a result of physical failure in or damage to existing BMPs, and repair such existing BMPs; or • Certify that industrial pollutant source(s) causing the exceedance Indicator(s) to be triggered have been identified, but that no additional operational source control BMPs or SWPPP implementation measures are available or can reasonably be implemented that would reduce or prevent pollutants in storm water discharges in compliance with BAT/BCT; or • Certify that pollutant source(s) causing the exceedance are not generated or caused by or related to the facility's industrial activities.

16. Exceedance response actions: level two If sampling results trigger an exceedance indicator for the same constituent(s) in any subsequent reporting year, then the discharger must evaluate all industrial pollutant sources, SWPPP, BMPs, and implementation measures, analytical results, and impacts of industrial storm water discharge on receiving waters.

17. Exceedance response actions: level two, cont. Based on that evaluation, the discharger must prepare a technical report and certify one of the following four options: • All pollutant source(s) associated with industrial activity have been identified and additional operational source control, treatment, and/or structural source control BMPs have been or are being identified and included in the SWPPP in compliance with BAT/BCT. The certified report must also include a description of the pollutant source(s), and a summary of the additional BMPs and SWPPP revisions that will be implemented; or • The evaluation found that the exceedance Indicator was triggered as the result of physical failure in or damage to existing BMPs; or • All industrial pollutant source(s) causing the exceedance Indicators to be triggered have been identified, but that no additional operational source control, treatment, or structural source control BMPs or SWPPP implementation measures are available or can reasonably be implemented that would reduce or prevent pollutants in storm water discharges in compliance with BAT/BCT. In this case, the certified report shall include a description of the industrial pollutant sources, a summary of the existing BMPs, and a brief cost analysis documenting the costs of structural and treatment controls that would be effective in reducing pollutant concentrations but that exceed BAT/BCT; or • All pollutant source(s) causing the exceedance of the NAL are not generated or caused by or related to the facility’s industrial activities. In this case, the certified report shall describe the non-industrial related or other off-site source(s) and provide supporting local or on-site analytical monitoring data. If on-site analytical monitoring data has not been conducted to fully support that the source of pollutants in storm water discharges are non-industrial or off-site, the technical report shall contain a proposed 1-year monitoring program to collect and analyze samples from non-industrial and off-site sources to fully support that triggers of exceedance indicators are solely caused by non-industrial based and off-site sources.

18. Modified Group Monitoring • The January 2011 draft GIP excluded group monitoring; however, it is likely to be a component of the new draft. • Staff has recognized that group monitoring provides for increased compliance opportunities and provides significant assistance to SWQCB and RWQCB staff. • A facility operator participating in group monitoring must develop and implement a site-specific SWPPP, submit annual reports, and satisfy group monitoring requirements. • A Group Monitoring Plan must be developed and implemented, and is subject to review by the SWRCB and RWQCB. • Each participant must collect and analyze samples from the first qualifying storm event of one quarter in the reporting year. • All group leaders must be designated as the highest-level QISP, have the resources to develop and implement the Group Monitoring Plan, and have the authority to terminate any non-complying participant.

19. FAA Guidance materials • Advisory Circular 150/5320-5C, Surface Drainage Design (2006) • Advisory Circular 150/5320-15A, Management of Airport Industrial Waste (2008) • Washington State Department of Transportation’s Aviation Stormwater Design Manual: Managing Wildlife Hazards Near Airports (2008) • Funded by the FAA

20. ACRONYMS • BAT: Best Available Technology Economically Achievable • BCT: Best Conventional Pollutant Control Technology • BMPs: Best Management Practices • CWA: Clean Water Act • ERAs: Exceedance Response Actions • GIP: General Industrial Permit • MS4s: Municipal Separate Storm Sewer Systems • POTW: Publicly Owned Treatment Works • NALs: Numeric Action Levels • NELs: Numeric Effluent Limits • NPDES: National Pollutant Discharge Elimination System • RWQCB: Regional Water Quality Control Board • SWPPP: Storm Water Pollution Prevention Plan • SWRCB: State Water Resources Control Board • TBELs: Technology Based Effluent Limits • WQBELs: Water Quality Based Effluent Limits