Clean Water Updates Environmental Compliance Training | Aarcher Institute of Environmental Training

9th Circuit: MS4 Local Governments Responsible for Dirty Stormwater Permit Violations

NRDC v. County of Los Angeles was a Clean Water Act citizen suit in which NRDC seeks to enforce penalties against the defendant county and flood control district for alleged violations of conditions of their MS4 permits. Specifically, these MS4 permits prohibit discharges causing or contributing to an exceedance of water quality standards. In this case urban stormwater flowed across the landscape and through the stormwater collection system. In the course of its travels, the stormwater picked up sediments, suspended metals, nitrogen, phosphorus, trash, used motor oil, pesticides, raw sewage, and “other toxic contaminants”. The County operated a number of monitoring stations per MS4 that detected violations of relevant standards, but did not treat the stormwater. Instead, the County allowed the water to flow into rivers and thence to the ocean. The County argued that they were not responsible for the contaminants. NRDC argued that the defendants violated this permit condition as shown by effluent monitors in MS4 infrastructure reflecting that the effluent in the MS4 violated water quality standards and the impairment of the waters to which the infrastructure discharged. The U.S. Court of Appeals for the Ninth Circuit held that NDPES storm sewer permittees, such as counties and municipalities, are on the hook for polluted discharges from their systems, despite the diverse sources for and difficult task of controlling stormwater because the CWA holds liable any entity that channels and causes contaminated stormwater to be released into, for example, rivers. The County was found liable because it controlled the “point source” of the standards-exceeding polluted water that was released into rivers, and thence continued on to the ocean. The court concluded, “the Clean Water Act does not distinguish between those who add and those who convey what is added by others.” The governmental MS4 defendants had argued that this permit condition should not be fully enforceable against them because the defendants are not sources of polluted stormwater but are merely aggregators of polluted stormwater from many sources, including literally thousands of NPDES-permitted industrial and construction stormwater sources. According to the court, “[d]efendants’ position that they are subject to a less rigorous or unenforceable regulatory scheme for their stormwater discharges cannot be reconciled with the significant legislative history showing Congress’s intent to bring MS4 operators under the NPDES-permitting system;” “[a]voiding wooden permitting requirements and granting states flexibility in setting forth requirements is not equivalent to immunizing municipalities for stormwater discharges that violate the provisions of a permit.”

April 2011 – Guidance to Identify Jurisdictional Waters Protected by the Clean Water Act

Over the past decade, interpretations of Supreme Court rulings removed a significant number of waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. The U.S. EPA and the U.S. Army Corps of Engineers have developed the April 2011 draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This latest guidance would replace previous guidance for jurisdictional waters. The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized. On April 14, 2011, 170 Members of Congress signed a letter to the EPA and the U.S. Army Corps of Engineers expressing concerns that the agencies were attempting to circumvent the proper regulatory process and utilize a guidance to expand EPA’s jurisdiction. The new proposal eliminates language from an earlier draft version that claimed the new policy would “increase significantly” the number of waterbodies subject to the federal law, while also substantially raising the bar to assert jurisdiction over isolated waterbodies. Language expanding jurisdiction over tributaries to traditionally navigable waters (TNW) and wetlands adjacent to those tributaries remains largely unchanged, however.

The draft guidance protects small streams that feed into larger streams, rivers, bays and coastal waters. It will also protect some additional wetlands. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) requires permits. EPA and the Corps will follow up the final guidance with rulemaking to provide further opportunity for comment and to clarify Clean Water Act regulations.

Ninth Circuit Opinion on Road Runoff and Point Sources

May 17, 2011 – The Ninth Circuit just reiterated in a new opinion that the stormwater collection systems (logging road runoff) at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. The context of the opinion relates to the scope of an exemption for certain silvicultural sources. EPA’s “Silvicultural Rule,” which has essentially been intact for over thirty years, defines a limited class of activities as “silvicultural point sources,” and interprets “nonpoint source silvicultural activities” as outside the NPDES program. The term “silvicultural point source” means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into navigable waters of the United States. Click here for the opinion.

EPA Exempts Milk From Spill Control Rule

April 12, 2011 – EPA on April 12 exempted milk and milk product containers from the Oil Spill Prevention, Control and Countermeasure (SPCC) rule, a move that could potentially save the milk and dairy industries more than $140 million per year. The regulation has been in place since the 1970s, and yesterday’s ruling for the first time will ensure all milk and milk products will be formally exempted. After receiving feedback from the agriculture community, EPA determined that this unintended result of the current regulations designed to prevent oil spill damage to inland waters and shorelines placed unjustifiable burdens on dairy farmers. To ensure the outdated rule didn’t harm the agriculture community while the mandatory regulatory process proceeded, EPA had delayed SPCC compliance requirements for milk and milk product containers several times since the SPCC rule went into effect. The final exemption applies to milk, milk product containers and milk production equipment. Because some of these facilities may still have oil storage subject to the spill prevention regulations, EPA also is amending the rule to exclude milk storage capacity from a facility’s total oil storage capacity calculation. EPA also is removing the compliance date requirements for the exempted containers.

Electronic NPDES Reporting Rule to be Proposed Soon

EPA is expected to propose a NPDES Electronic Reporting Rule by the fall of 2011, with a final rule in the fall of 2012. This rule will likely require all discharge monitoring reports (DMRs) to be submitted electronically, and will also require existing paper program reports, such as sanitary sewer overflow, pretreatment, biosolids, and municipal separate storm sewer system reports to be converted to electronic form.

House of Representatives Passes Bill To Undo Certain Federal Minimums in Clean Water Act

A bill passed this summer by the House of Representatives would remove certain EPA Federal oversight from the Clean Water Act. The Clean Water Cooperative Federalism Act of 2011 (H.R. 2018) would change the federal- state relationship created in the 1972 CWA by denying EPA of its abilities to object to state-approved permits under the National Pollutant Discharge Elimination System program, by preventing EPA from requiring state water quality standards to meet certain federal minimums, and by taking away EPA’s power to veto dredge and fill permits issued by the Army Corps of Engineers. Sponsors John Mica (R-FL) and Nick Rahall (D-WV), Chairman and Ranking Member of the Transportation and Infrastructure Committee, moved the bill through committee June 22. The bill cleared the floor by a vote of 239-184, with 16 Democrats approving the measure. Three amendments were adopted, including one by Rep. Capito (R-WV) that would require EPA to conduct an economic impact assessment of each CWA regulation it issues. The administration voiced opposition to the bill, stating it would “significantly undermine the Clean Water Act (CWA) and could adversely affect public health, the economy, and the environment.” And while the bill made it through the House, it will receive somewhat less support in the Senate Environment and Public Works committee, where it now goes.

Ken Kopocis Is Nominee For Assistant Administrator For The Office Of Water

June 10, 2011 – President Obama announced Ken Kopocis as nominee for Assistant Administrator for the Office of Water. Kopocis has been the Senior Counsel on the House Committee on Transportation and Infrastructure since 2008. From 2006-2008, he served as the Deputy Staff Director for Infrastructure on the Senate Committee on Environment and Public Works. From 1993-2006, Kopocis was the Staff Director and Senior Counsel for the House Subcommittee on Water Resources and Environment for the Committee on Transportation and Infrastructure. From 1985-1993, he served as Assistant Counsel on the House Subcommittee on Water Resources and Environment for the Committee on Public Works and Transportation. Kopocis previously served as an Attorney in the Government Accountability Office and at the General Services Administration. Kopocis holds a B.S. from the University of Nebraska-Omaha and a J.D. from the College of William and Mary. Kopocis would succeed Peter Silva, who resigned in February.

Havasupai Tribe Receives EPA Approval to Administer Water Quality Standards Program

The U.S. Environmental Protection Agency has approved the application from the Havasupai Tribe (located near the Grand Canyon in Arizona) to administer a water quality standards program under the Clean Water Act. The Havasupai Tribe becomes the 46th Tribe that EPA has found eligible to be treated in a manner similar to a state for this purpose. The Tribe is now working with EPA to develop and adopt the actual water quality standards for their waters. Once EPA approves the standards, which may occur within the next year, all surface waters that the Tribe identified within the exterior boundaries of its reservation will be protected by Clean Water Act standards.

EPA Solicits Public Comment on Permit to Reduce Stormwater Discharges from Construction Sites 76 Fed. Reg. 22,882

Click here for FAQs.
April 25, 2011 - EPA has released for public comment a draft permit that will regulate the discharge of stormwater from construction sites. The proposed construction general permit (“CGP”) will be finalized prior to the expiration of the 2008 CGP (which EPA has proposed extending to January 31, 2012) and will provide coverage for eligible new and existing construction projects for a period of five years. EPA is developing this draft CGP to implement the Agency’s new Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Industry. Because the existing permit is set to expire on June 30, 2011, EPA also is proposing to extend that permit until January 31, 2012. There is a tie in, of course, to EPA’s Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Industry, 74 Fed. Reg. 62,996 (December 1, 2009), which took effect February 1, 2010. Under the C&D Rule, construction sites must implement Best Management Practices (non-numeric effluent limits) to control stormwater discharges, such as erosion and sediment controls, soil stabilization requirements, dewatering requirements, pollution prevention measures, prohibitions on certain discharges, and use of surface outlet structures. The C&D rule also included a numeric turbidity limit for certain larger construction sites, but effective January 4, 2011, EPA has stayed the numeric limitation of 280 NTU that was published in the December 1, 2009 rule. EPA took a voluntary remand of the numeric turbidity limit so it could recalculate the limit. All other portions of the C&D Rule remained in effect and subject to implementation in any new permit. EPA is working to develop a recalculated limit with the goal of proposing and promulgating that revised limit in time for it to be incorporated into this final reissued CGP along with the non-numeric requirements of the C&D Rule.

The proposed Construction General Permit (CGP) includes a number of significant proposed permit modifications, including new requirements for eligibility for emergency-related construction; required use of the electronic notice of intent process; sediment and erosion controls; natural buffers or alternative controls; soil stabilization; pollution prevention; site inspections; Stormwater Pollution Prevention Plans; and permit termination.

One of the significant changes would establish at least a 50-foot undisturbed, natural buffer area around any waters of the U.S., including wetlands, occurring on or adjacent to their sites, or achieve an equivalent level of protection by implementing alternative measures. The operator must maintain the selected alternative for the duration of permit coverage. Another change would require the operator to immediately initiate stabilization on exposed portions of the site where earth-disturbing activities have permanently or temporarily ceased, and will not resume for a period exceeding 14 calendar days, or for a period of 7 or more calendar days if (a) earth-disturbing activities occur within 50 feet of a water of the U.S. located on or immediately adjacent to the construction site, (b) the site discharges to sediment- or nutrient-impaired waters, (c) the site discharges to high quality waters (i.e., Tier 2, 2.5, or 3 waters), or (d) the activity disturbs slopes of 15% or greater. Various new stabilization criteria must be met under all stabilization scenarios. operators will also have to remove sediment deposited on the site, tracked out of the site, or accumulated near sediment controls before it compromises the effectiveness of onsite controls and/or is discharged to surface waters; stabilize all entrance and exit points created on the site for a minimum of 50 feet into the site so that no soil is left exposed and no sediment is discharged during storm events; avoid earth-disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or inconsistent with the requirements of the project; and install and maintain controls to protect any storm drain inlets to which the site discharges and the operator has access.

In July 2008, EPA issued its 2008 NPDES Stormwater Construction General Permit. The 2008 CGP is a three-year permit, which is currently set to expire on June 30, 2011. (As noted, EPA is proposing an extension of the expiration of the 2008 CGP until January 31, 2012). Coverage under the 2008 CGP is available for eligible construction activities in the following areas:

Indian Country lands within Alaska, Arizona, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, Wyoming
Federal Facilities within Colorado, Delaware, Vermont, Washington
Idaho, Massachusetts, New Hampshire, New Mexico, District of Columbia
American Samoa, Guam, Johnston Atoll, Midway and Wake Islands, North Mariana Islands, Puerto Rico
Limited areas of Oklahoma and Texas

Whenever EPA issues a new permit like this, it often serves as a template for new state construction permits as well in state-primacy areas, so the new 2011 CGP proposal is relevant for all future construction.

The permit will be effective in areas where EPA is the permitting authority, including four states (Idaho, Massachusetts, New Hampshire and New Mexico); Washington, D.C.; most territories; and most Indian country lands. The public will have 60 days to comment on the draft permit. EPA anticipates that it will issue the final construction general permit by January 31, 2012.

The current permit is scheduled to expire on June 30, 2011; however, EPA is proposing to extend the current permit until January 31, 2012 to provide sufficient time to finalize the new permit.

EPA Taking Comment on Memo on Stormwater TMDLs and Permits

EPA issued a Federal Register notice on March 17, 2011 that it was opening a formal 60-day comment period on the November 2010 stormwater guidance memorandum. EPA issued this memorandum to state and federal clean water authorities calling for a change in the way total maximum daily load (TMDL) wasteload allocations (WLAs) are established for stormwater discharges and calling for the inclusion of numeric effluent limits in municipal stormwater permits. The memo, which updates a previous 2002 directive from EPA regarding TMDL WLAs for stormwater, directs TMDL authorities to create more “useful” WLAs for stormwater discharges that take into account the true impact of stormwater on water quality. A copy is attached.

EPA Announces Its Proposed Rule For Cooling Water Intake Structures

EPA’s revised March 28, 2011 proposal for a cooling water intake structure rule for existing facilities generally would apply to facilities that take at least 25% of their water from an adjacent waterbody and use more than 2MGD/day, although the details of the regulatory trigger can be seen below. Limits are imposed on total fish impingement, though facilities can meet an alternative standard by limiting approach velocity to 0.5 feet per second. Facilities that withdraw at least 125 MGD would have to perform studies leading to site-specific standards to address entrainment concerns. Finally, new units that increase generating capacity would be have to used close-cycle cooling (or something equivalent).

The proposed section 316(b) standards for existing facilities are triggered for the facilities that meet all of the following characteristics:

Construction of the facility commenced before January 17, 2002;
The facility is subject to National Pollutant Discharge Elimination System (NPDES) permitting under the CWA;
The facility withdraws from waters subject to EPA’s jurisdiction under the CWA;
The facility has a design intake flow of at least 2 million gallons per day; and
At least 25% of the facility’s water withdrawals are used exclusively for cooling purposes (on an average annual basis).

The proposed regulations would require existing large power plants and manufacturing facilities that withdraw water from adjacent water bodies exclusively for cooling to limit the number of aquatic organisms that are killed when they are pinned against the facility’s intake structure or that are drawn into the facility’s cooling system. Previously, manufacturing facilities had been subject to a different rulemaking under section 316(b), but EPA now is proposing that existing power plants and all manufacturing facilities be subject to the same standards. Covered facilities would be subject to a limit on the number of fish and other aquatic organisms that are killed when they are pinned against the intake structures of the facility’s cooling water system (impingement). The facility would need to work with the state agency that issues its NPDES permit, or the EPA where EPA issues the NPDES permit, to determine the best technology to meet this impingement limit. Alternatively, the facility could limit the velocity of its cooling water intake to no greater than 0.5 feet per second.

EPA’s “Coming Together for Clean Water Strategy” Released

On March 28, 2011, EPA released its document entitled “Coming Together for Clean Water: EPA’s Strategy to Protect America’s Waters.” The document details a framework and set of priority actions for the Office of Water and water-related strategic planning goals.

EPA launches new Climate Ready Water Utilities Toolbox

The Climate Ready Water Utilities (CRWU) Toolbox provides access to resources containing climate-related information relevant to the Water Sector. These resources include several categories of information and can be searched by geographic region, water utility type and size, water resources, climate change impact, and climate change response strategies. It is available online. The CRWU Toolbox is a searchable web-based database that contains climate-related resources that assist utilities at all stages of the planning and decision making process, from raising general awareness to implementing mitigation and adaptation measures. In addition, an upgraded user interface and other modifications are currently being developed.

The Climate Resilience Evaluation and Awareness Tool (CREAT) is an interactive tool designed for water and wastewater utilities to assess the risk of potential climate change impacts on their assets, operations, and missions by guiding users through a flexible, systematic assessment process. CREAT also provides regional climate change information that includes a list of potential impacts to utilities and directs users to a library of adaptation measures. Users can draw from this library to develop their own adaptation plans which can include their custom-designed adaptation measures as well. Updates to the software will include an energy efficiency module and incorporation of utility extreme weather data and supplemented scenario based planning functionality into the tool.

The Utility Climate Change Adaptation Measures Guide is being developed to provide information on existing and suggested adaptation measures. This guide will leverage climate science information in CREAT, as well as provide regional climate information and associated adaptation measures.

The Tabletop Exercise Tool for Water Systems: Emergency Preparedness, Response, & Climate Resiliency assists users in planning, customizing, and conducting water sector-specific tabletop exercises on five climate change scenarios. Background technical information included in the tool provides a brief introduction to climate science and how climate impacts may affect utility operations.

Sewage Sludge Incineration Covered by Recent EPA Rules

On March 21, 2011, EPA published the final maximum achievable control technology standards for sewage sludge incinerators (Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration (SSI) Units; 76 Fed. Reg. 15372) and its final definition of non-hazardous solid waste rule (Identification of Non-Hazardous Secondary Materials That Are Solid Waste; 76 Fed. Reg. 15456). EPA determined that all sewage sludge would not meet the legitimate fuel standards due to its high level of contaminants when compared with a comparable, traditional fuel (i.e., coal). This determination means that sludge being burned in any kind of unit, including those that are expressly designed to recover energy, will be considered a solid waste.