Revised Statewide General Construction Permit September 23, 2010 CMAA Southern California Chapter Peter A. Nyquist ALSTON & BIRD LLP (213)

Topics  Context and Legal Framework for Regulation of Storm Water  How We Got Here  Storm Water Permit Enforcement Issues  Recommended Readiness Measures

Regulation of Storm Water  Federal Clean Water Act  Initially focused on reducing “ point source ” pollution by requiring individual NPDES permits for discharge of pollutants  Section 402(p)  1987: CWA amended to create framework for regulating storm water discharges under NPDES program  1990: USEPA adopts final regulations requiring NPDES permit coverage  Porter-Cologne Act (California)  SWRCB delegated authority to administer NPDES program under Water Code § et seq.

How We Got Here  General Construction Permit Milestones  WQO DWQ adopted in August 1999  revised March 2003  expired August 19, remained in effect pending new permit  March 2007 – April 2009  SWRCB issues series of preliminary, proposed and revised drafts of permit  numerous public workshops, public comments, stakeholder input  June 17, 2009: SWRCB hearing  September 2, 2009: Final SWRCB hearing and permit adoption  July 1, 2010: Effective date of revised permit

Enforcement Issues  Enforcement as Statewide Priority  Evolving political and regulatory landscape  Limited state resources  “Citizen army”  Enforcement Mechanisms  State enforcement of civil or criminal penalties  Private enforcement through citizen suit authority  Local/municipal enforcement of co-extensive requirements

Storm Water Enforcement: “The Numbers”*  Region 4 Permittees:  Construction: 2,486  Industrial: 2,807  Municipal: 100 Total: 5,393 (~25,000 statewide)  Region 4: Number of Storm Water Permit Violations * Source: 2009 Water Code Section Enforcement Report (Jan. 2010) Year No. of Violations %with Enforcement ,243 N/A N/A N/A N/A (89%) (92%) (98%) (80%)

Storm Water Violations By Category 2009 Violation Category Non-Priority Violations Priority Violations Total % of Total Reporting % Deficient BMP Implementation % Incomplete/Insufficient SWPPP % Unauthorized Discharge % Other Requirements % Failure to Pay Fees ~0% Monitoring ~0% Total 1, , %

RWQCB Enforcement Tools  RWQCB Notification of Violations  Verbal Notification  Notice of Violation  Inspection Reports  Enforcement Letters  Section Request for Information  CAOs  ACLs  Attorney General Referral

Water Code Section  Potential ACL Penalties  Up to $10,000 per violation and each day violation occurs  For discharges not cleaned up and which are greater than 1,000 gallons, and additional $10/gallon penalty can be assessed  Mandatory Minimum Penalties  Generally, chronic or single acute violation (an exceedance of either 20 or 40 percent of the permitted limit, depending on the constituent) of certain constituents  Monitoring reports more than 30 days late  MMP of $3,000 to be assessed when 4 or more effluent limitation violations occur within 6 month period

ACL Penalty Assessments  SWRCB Goals:  Fair and consistent liability amounts  Eliminate economic or competitive advantage from non- compliance  Penalty should bear relationship to:  gravity of violation  harm to beneficial uses  integrity of regulatory programs  Deter future violations, both by the violator and the regulated community

Potential Areas for Increased Enforcement Under Revised General Construction Permit  Old Permit  Enforcement driven by field observations and inspections  New Permit  Newly required submittals may result in increased violations:  Permit Required Documents (PRDs)  SWPPP or risk determination not prepared by QSD  NEL/NAL and annual reports  New BMP and inspection requirements  Addition of prescriptive BMP requirements for all risk levels  Soil Cover: i.e., has effective soil cover been provided for “inactive areas,” finished slopes, and completed lots?

Clean Water Act Citizen Suits  CWA Section 505(a) permits private parties to commence civil action against:  “any person... who is alleged to be violation of (A) an effluent standard or limitation... or (B) an order issued by... a State with respect to such standard or limitation.”  Remedies  Injunctive relief  Civil penalties, up to $32,500 per day, per violation  Attorneys’ fees

Clean Water Act Citizen Suits  Santa Monica Baykeeper v. L&V Tomalevski Architects  Alleged discharge of dredge and fill material, construction debris, refuse, polluted storm water and non-storm water from adjacent residential development projects in Mandeville Canyon  Settled on favorable terms, but:  costs of defense  additional mitigation measure costs as condition of settlement  Santa Monica Baykeeper v. Kramer Metals, Inc.  619 F. Supp. 2d 914 (C.D.Cal 2010)  Alleged SWPPP deficiencies, inadequacies of BMPs, failure to comply with monitoring and reporting plan requirements.

CERCLA Liability?  United States v. WSDOT (W.D.Wash, June 7, 2010)  State agency (that designed highway storm water runoff system that discharged contaminants to waterway) liable as “arranger” under CERCLA  On The Other Hand...  “Federally Permitted Release” Exemption:  Discharges in compliance with NPDES permit requirement (e.g., CA Statewide General Construction Permit) are not liable under CERCLA for response costs (42 U.S.C. § 9707(j))  Carson Harbor Village v. Unocal, 287 F.Supp.2d 1118 (C.D.Cal 2003)  Municipalities operating storm water systems in compliance with permitting schemes not liable under CERCLA as “arrangers”

Final Thoughts: Rain Season Readiness Measures  Understand risk-based approach and how to perform calculations and project planning  Develop protocols for rain event readiness  Begin monitoring edge of property/discharge point runoff for turbidity and pH  If applicable, understand receiving water characteristics and look for background data where available  Prepare for electronic document submittals and reporting requirements for monitoring information  Account for increased costs of compliance

Thank You! Peter A. Nyquist ALSTON & BIRD LLP (213)