Cit itizen Enforcement and IG IGP Compliance Matt O’Malley Waterkeeper and Legal & Policy Director San Diego Coastkeeper
Clea ean Water Act ct Citiz tizen In Involv lvement t and and Enforcement En • 1972 Act passed to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 USC §1251(a). • The discharge of “any pollutant by any person” is unlawful unless in compliance with a permit. 33 USC § 1311, 1342. • Citizens can sue dischargers for violations of their permits or to stop unpermitted discharges. 33 USC § 1365(a)(1).
Clea lean Water Act ct Citiz itizen En Enforcement • 60-day notice of intent prior to filing a complaint • CWA imposes strict liability for violations – to establish violation of the Act, plaintiffs only need to prove that defendant violated terms and conditions of its permit. • Civil penalties, injunctive relief • Litigation costs and fees • CWA encourages citizen enforcement actions by design
In Industria ial Stor orm Water En Enforcement • Goal: Uphold the requirements of the CA General Industrial Stormwater Permit (IGP) to ensure industrial facilities discharging pollutants are: • Enrolled in the IGP • Complying with substantive and procedural IGP requirements including: • Monitoring and analysis of discharges • Implementation of pollution control measures that meet BAT/BCT and water quality standards (including Basin Plan Standards and California Toxics Rule) • Annual Reporting and Compliance Certification
Im Imple lementatio ion of of BAT/B /BCT, CTR CTR, Bas asin in Pla lan • Best Available Technology Economically Achievable • An evolving standard • Based on best performers in an industrial category • Receiving Water Limitations (Water Quality Standards) • Water Quality Objectives in the Basin Plans • Criteria for Priority Toxic Pollutants (CTR, 40 CFR 131.38)
In Informatio ion Avai aila lable le to o Citiz itizen Groups • Sampling data: including numeric reports, number of samples taken • Annual reports • Rainfall gauges • Business filings, SIC Codes, financial statements • SWPPPs • Caselaw and statute favorable to citizen suit enforcement • Satellite data, parcel data • Our own monitoring/sampling results • Site visit near/around perimeter during wet and dry weather
Fac acil ility Ins Inspectio ions: Vir Virtual • Review SMARTS and other self-reporting databases for compliance • Closely review annual reports for exceedances of Basin Plan or CTR standards • Closely review sampling results against benchmarks • Review SWPPPs for compliance with permit requirements • Review annual reports for permit compliance and trends • Use land use zoning maps, satellite imagery, GIS layers, and other virtual tools for investigation • NOIs • SWPPP info, historical use maps, industrial activity location, SIC codes • Public records requests for additional data and information • Review business filings in jurisdictions to cross reference NOIs filed. • Investigate reports to our pollution prevention hotline • Use requests to gain all monitoring reports and permit information for each identified facility
Fac acil ility Ins Inspectio ions: Act ctual • “Near site” investigations to assess size of facility, presence and/or absence of adequate best management practices to address stormwater pollution, other related actions. • Compare SWPPP info with actual conditions at facility • Document industrial activities occurring and where on property • Assess runoff points from property • Compare virtual assessment with actual assessment (“ground - truthing”) • May collect and analyze water quality samples during storm events at each facility identified as a source of pollution
How We e Mig ight t Dif iffer Fr From om Agen encie ies • No ability to enter the premises, so must rely on virtual and “near site” inspections, with possible samples of our own. • Citizen groups often look at water quality sample results for pollutant concentrations as compared to water quality standards and EPA benchmarks . • Citizen groups look at compliance with other aspects such as visual inspections conducted, SWPPP updates (or lack thereof), site modification in response to water quality sampling results, etc.
Out utcomes Sou ought • Coverage and Compliance with the IGP and Clean Water Act’s requirements • Encourage compliance through cost-effective and LID measures such as stormwater capture, treatment and infiltration and only where necessary active stormwater treatment devices. • Through continued monitoring by Coastkeeper, we hope to demonstrate that industrial facilities we’ve engaged with meet water quality standards and EPA benchmarks for industrial sites. • Encourage facility owners to consider stormwater pollution control as their responsibility in ensuring healthy environment rather than an unwanted obligation
Pot otentia ial Actio ctions • 60-day notices, with offers to discuss and settle without litigation if compliance results • Litigation if necessary (with recovery of our attorneys fees and costs) • We attempt to seek compliance without overly expensive or unnecessary BMPs • Work with Coastkeepers to come into compliance
Use seful Gui uidance e to o In Industry ry • Update SWPPPs and keep a clean site, with appropriately trained employees • Hire outside consulting or experts when developing a SWPPP and ongoing monitoring and compliance when in-house expertise is not available • Implement best practices and BMPs aimed on on-site retention whenever feasible • Stormwater capture BMPs • Cover existing exposed areas • If need be, advanced treatment BMPs that meet BAT/BCT and achieve EPA benchmarks • Meet with us to discuss if you or your client receive a 60-day notice
Matt O’Malley, Waterkeeper and Legal & Policy Director matt@sdcoastkeeper.org www.sdcoastkeeper.org www.cacoastkeeper.org
Recommend
More recommend
