Presenting a live 90-minute webinar with interactive Q&A Stormwater Discharge Permits and Clean Water Act Compliance Updating EPA and State Stormwater Permitting Requirements, New Developments, and Impacts of the New Administration TUESDAY, MAY 23, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: John Epperson, Partner, Cooper White & Cooper , San Francisco Matthew Q. Lentz, Principal Scientist, GSI Environmental , Newport Beach, Calif. Andrew J. Perel, Partner, Troutman Sanders , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Overview of Storm Water Permitting 1987 Amendments to Clean Water Act added storm water to NPDES program States, not EPA, regulate storm water programs in 45 out of 50 states – EPA important as standard-setter more than enforcer CWA citizen suit enforcement 5
Clean Water Act Citizen Suits What are the legal remedies to address these conditions? 6
Clean Water Act Citizen Suits Legal Approaches to Protect Water Quality: Keeping it all Straight U.S. EPA or State Actions Private Party Lawsuits • Issue administrative orders • File “tort” lawsuits (e.g., trespass, to stop regulatory violations nuisance, negligence, etc.) • File lawsuits to enforce laws • Stand-alone case/Class Actions and require action • File criminal environmental • File “Citizen Suit” under Clean action Water Act 7
Clean Water Act Citizen Suits What is a CWA Citizen Suit? Any citizen may commence a civil action against any person who is alleged to be in violation of an effluent standard or limitation under the CWA. 33 USC 1365 Translation: Discharging a pollutant without a permit or discharging a pollutant in violation of a permit Uncertain to what extent it can to enforce Section 404 Dredge & Fill Permits (Wetlands). 8
Clean Water Act Citizen Suits CWA Citizen Suit Notice Procedures • Plaintiff must give 60-days prior notice to the EPA, the state where alleged violation occurred and to the alleged violator. 33 USC 1365(b) • 33 USC 1365(b) provides that “No action may be commenced … prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) the State in which the alleged violation occurs, and (iii) to any alleged violator...” 9
Clean Water Act Citizen Suits Specific Notice Requirements Notice must include “ sufficient information to permit the recipient” to identify: the specific standard, limitation, or order allegedly violated; the activity constituting a violation; the person(s) responsible for the violation; the location of the violation; the date(s) of such violation; the full name, address and phone number of the person giving notice. 40 CFR 135.3(a) 10
Clean Water Act Citizen Suits Requirements to Properly Serve Notice • For an individual or corporation: by certified mail to or personal service upon, the owner or managing agent of the building, plant, installation, or facility. • Copies mailed to: – Corporation’s registered agent – EPA Administrator – EPA Regional Administrator – Chief Administrative Officer of state water pollution control agency • Different requirements if violator is state or federal agency 40 CFR 135.2 11
Clean Water Act Citizen Suits Purpose of the Notice Requirement • The purpose of the notice requirement is to allow permittees to come into CWA compliance without there being a suit. • The 60 day notice period also allows the government to begin prosecution (triggering the “diligent prosecution” defense discussed by the next speaker) which also precludes the suit. 12
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits 1. “ Diligent prosecution ”— has the government stepped up? 2. “ On going violations ”— is the problem continuing? 3. “ Permit shield ”—were the “pollutants” disclosed and considered by agency? 4. “ Not a navigable water ”—is “discharge” to “groundwater” covered by CWA? 5. “ Time limits ”— how long do you have? 13
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits Diligent Prosecution 1. Has agency taken the specific action set forth in the Clean Water Act? 2. Is the State program for “consent decrees” legally “comparable” to the CWA requirements? 14
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits Ongoing Violation? 1. Is the violation still ongoing? 2. Do the effects of the violation still exist? City of Mountain Park, Ga. V. Lakeside at Ansley , LLC, 560 F. Supp. 2d 1288 (N.D. Ga. 2008) 15
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits Permit Shield? 1. What information disclosed in the NPDES permit application? 2. Was it available to the Agency? 3. Does permit shield apply to “individual,” “general” and “nationwide” permits? 16
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits “Discharges from point sources” to “navigable waters” or “waters of the United States”? 1. Direct discharges to WOUS? 2. Groundwater discharges? 3. “Isolated groundwater” v. “ hydrologically connected” groundwater 4. Majority rule 17
Clean Water Act Citizen Suits Common Defenses to CWA Citizen Suits Did you wait too long? 1. No statute of limitation in CWA 2. Presumed 5-years 18
Clean Water Act Citizen Suits Remedies Under CWA Citizen Suits Injunctive Relief • An order by the court to take action or not take action • Research project (at UGA, Georgia Southern, etc.) • Discretion of Court Attorney Fees • Awarded to the “prevailing or substantially prevailing party, whenever the court deems such an award appropriate” • Must advanced the goals of the CWA Civil Penalties • Currently $37,500 per day per violation 19
General Permit elements General Permit rather than facility-specific Industrial Activities (based on SIC) – Construction (size) – Municipal Separate Storm Sewer System (MS4) – Notice of Intent (NOI) No-Exposure Certification (NEC) – Notice of Non-Applicability (NONA) – Storm Water Pollution Prevention Plan (SWPPP) Best Management Practices (BMP) Training Sampling Reporting 20
Current Developments State developments – California Industrial General Permit experience 2017 Construction General Permit (EPA) Numerical limits vs. benchmarks Citizen suit trends Electronic submittals/online availability of records Significant recent litigation 21
State Developments California’s Industrial General Permit – Numeric Action Levels – Tiered Exceedance Response Action (ERA) Program – Public Availability of Documents – Minimum and Advanced BMPs Design Storm Criteria – TMDL Incorporation Process… Washington State Program – Similar Tiered Corrective Action Program 22
California – ERA Process The ERA Process is Driven by Numeric Action Levels Two types of NAL exceedances Instantaneous Maximum NAL Exceedance (TSS, O&G, pH) Based on CA Industrial site data (2 or more in a reporting year) Annual NAL Exceedance ACTION Based on USEPA Benchmarks (average for monitoring year) NO ACTION 23
Basis for USEPA Benchmarks TSS, N+N – National Urban Runoff Program Median – Concentrations pH, BOD - Secondary Treatment Regulations (40 CFR 133) – COD - Factor 4 times BOD5 Concentration – North Carolina – Benchmark Metals, VOCs - AMBIENT Freshwater Aquatic Life Criteria – Magnesium - Laboratory MDL x 3.18 – 24
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