California State Water Board Workshop on Changes to Industrial Stormwater General Permit

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The California State Water Resources Control Board (“State Water Board”) held a workshop today to discuss significant changes to the General Permit for stormwater associated with industrial activity. The new General Permit, as discussed in an April 2, 2014 Alston & Bird LLP post, takes effect July 1, 2015. Notable changes in General Permit requirements are listed in the State Water Board’s Summary of Significant Changes.

Among other prominent changes, the new General Permit makes it mandatory for dischargers to submit and certify all reports electronically on the SMARTS system, requires dischargers to implement a set of minimum best management practices (“BMPs”), applies U.S. EPA regulations regarding a conditional exclusion for facilities that have no exposure of industrial activities and materials to stormwater, and allows any type of industry to claim a conditional exclusion.

Today’s State Water Board workshop about the new General Permit revealed:

  • that the State Water Board is expecting approximately 100,000 additional facilities to come under the purview of the new General Permit;
  • that the State Water Board is going on the road and plans 24 presentations of this information statewide;
  • that all dischargers must enroll (including recertify) for the new General Permit online via the SMARTS system;
  • the State Water Board has already sent out letters to facilities with a secret code number needed to access SMARTS. Dischargers who do not receive this letter by January 26, 2015 should contact the State Water Board Help Desk;
  • that the State Water Board will allow certain dischargers not to implement specified BMPs if a discharger can show that it tried, to the extent feasible, to implement a BMP but the BMP could not be implemented, and the discharger proposes an acceptable alternative to the BMP;
  • that a discharger can temporarily suspend industrial activities for a site (i.e., can temporarily suspend the “active status” of a facility) under certain conditions, but this does not suspend permit coverage nor waive required fees;
  • that the State Water Board will have to reopen the General Permit to include Total Daily Maximum Loads (“TMDLs”) by July 1, 2016 (there will opportunity for public input on the to-be-proposed TMDLs);
  • that the State Water Board’s definition of Waters of the United States means navigable waters, including tributaries that flow to navigable waters;
  • that it is possible to have an exceedance and not trigger a change in action level;
  • that there is no rain volume measure standard to define a qualifying storm event (e.g., the trigger is whether there’s a discharge from the facility after precipitation);
  • the SMARTS system works best, and sometimes only, with the Internet Explorer browser (not Safari, Firefox, etc…);
  • that the WDID will be considered “expired” for dischargers who do not recertify or enroll online via the SMARTS system by July 1, 2015;
  • that dischargers must electronically submit (i.e., upload to SMARTS) their storm water prevention plan and facility site map when applying for recertification;
  • SMARTS is limited to 75 megabytes per document for uploading;
  • A mandatory minimum penalty of $5,000 will be fined to facilities that do not have coverage under the new General Permit by July 1, 2015;
  • the State Water Board is still working on streamlining the annual report process on SMARTS (e.g., current Forms 2 through 5 will no longer apply);
  • Previous enforcement actions under the existing or “old” permit, especially if ongoing, will carry over to the new General Permit;
  • Facilities will have to apply to a Compliance Group for acceptance and the Compliance Group will have to approve acceptance (facilities cannot be willy-nilly placed without their knowledge into Compliance Groups);
  • Compliance Group Leaders must be Trainers of Record (“TORs”). TOR training currently set for July 15-16, 2015;
  • the SMARTS system does not take geographically relevant background contamination into account, so that if an existing geographical areawide exceedance exists (e.g., aluminum in soil in many areas of California) and that exceedance shows up in a facility’s sample, then that facility may be categorized as Level 1 or 2;
  • State Water Board’s Stormwater Help Desk:

If you have questions, feel free to contact any attorney in the Alston & Bird LLP Environment, Land Use & Natural Resources practice group.