Washington Department of Ecology Delays Issuing New Industrial Stormwater Permit after intense opposition

By Dustin Till
Martin Law Group

Posted August 3, 2007

The Washington Department of Ecology (Ecology) will delay issuing a revised Industrial Stormwater General Permit (the Revised Permit) until spring 2008, following intense opposition to the inclusion of new testing requirements for copper. Small amounts of copper attributable to brake pads and brake linings, among other things, are generated at many facilities. Copper was added as a core sampling parameter because it is commonly present in stormwater runoff and can be toxic to aquatic organisms, notably endangered salmon species.[1] The Association of Washington Businesses (AWB) characterized the Revised Permit as “likely the most costly, complex stormwater permit in the nation” and urged Ecology to delay copper benchmarks until it has determined whether it needs to modify state water quality criteria for copper.[2] Environmental NGOs, including Puget Soundkeeper Alliance, responded favorably to the proposed copper benchmarks.[3]

Ecology intends to issue an updated draft of the Revised Permit for additional public comment in October 2007 and to issue a final draft in spring 2008. In the meantime, Ecology has advised facilities covered under the Current Permit to continue sampling discharges and submitting discharge monitoring reports (DMRs) for the parameters in their existing permits in order to remain in compliance with industrial stormwater regulations.[4]

I. Ecology’s Current Industrial Stormwater General Permit

Stormwater discharges from industrial facilities may become contaminated by contact with stored materials, spilled materials, and dirt and other debris associated with impervious surfaces. Stormwater may seep into the ground, drain directly to surface waters, or drain into storm drain systems. Pollutants associated with industrial stormwater discharges include petroleum products, heavy metals, sediments, and animal waste. The Puget Sound Partnership, a 22-member public/private agency established by Governor Gregoire in 2007, has identified reducing stormwater pollution as one of its eight long-term objectives for improving water quality in the Puget Sound.[5] Approximately 70% of facilities with industrial stormwater permits are located in the 12 counties bordering the Puget Sound.[6]

Ecology administers the state stormwater management program consistent with the Federal Clean Water Act[7] and the Washington Water Pollution Control Law.[8] Ecology’s stormwater program includes permitting requirements under the National Pollution Discharge Elimination System (NPDES) for stormwater discharges from industrial facilities, construction sites, and municipal separate storm sewer systems (MS4s).

Industrial facilities that conduct activities with specific Standard Industrial Classification (SIC) codes must apply for an industrial stormwater permit if stormwater from the facility discharges to drains or directly to surface waters.[9] A broad array of heavy manufacturing, industrial, and transportation operations are subject to Ecology’s industrial stormwater permit requirements, including wood and paper products, landfills, recycling, warehousing, and farm products. Ecology issued its first baseline stormwater discharge permit in 1992, which covered stormwater discharges from both industrial facilities and construction sites. In 1995, Ecology separated the industrial and construction permits. Ecology’s current industrial stormwater permit has been in place since January 14, 2005.

The Current Permit, which covers stormwater discharges from over 1,100 industrial facilities in Washington, was set to expire in September 2007. It has two primary components: sampling and response actions, and SWPPP implementation. It establishes “benchmarks” and “action levels” for four core effluents (known as “parameters”) – turbidity, pH, zinc, and petroleum (oil and grease).[10] All facilities subject to the permit are required to collect and analyze quarterly stormwater samples for the four key parameters and submit the results to Ecology. Facilities are required to perform certain adaptive management response actions in response to either benchmark or action level exceedances, including inspecting the facility and implementing additional source, operational, or treatment controls. The current permit also requires facilities to develop and implement a site-specific SWPPP, which identifies potential contaminant sources and describes best management practices (BMPs) designed to limit stormwater impacts. [11]

II. Ecology’s Revised Industrial Stormwater General Permit

In February 2007, Ecology published the Revised Permit, which was available for public review and comment from February 21, 2007 to April 20, 2007. The Revised Permit contains the two core components of the Current Permit (quarterly sampling and the SWPPP requirement). Significantly, under the current version of the Revised Permit, all facilities would be required to analyze quarterly stormwater samples for copper in addition to the four parameters listed in the Current Permit. Facilities are only required to sample for copper under the Current Permit if stormwater samples exceed the zinc parameter for two consecutive quarters

Based on the high volume of comments received, Ecology decided to rework the Revised Permit and anticipates having a new draft out for public comment by the end of October. The agency plans to issue the final Revised Permit in spring 2008. The final Revised Permit will then supersede the extended Current Permit.

Current permit holders were required to apply for the Revised Permit by March 20, 2007. Facilities that submitted an application prior to the deadline and continue to monitor and submit quarterly DMRs to Ecology will be in compliance with the Current Permit until the final Revised Permit is issued. However, current permit holders that have not yet submitted an application, or facilities subject to Ecology’s industrial stormwater regulations that do not have a permit, are being encouraged by Ecology to submit an application as soon as possible in order to avoid potential enforcement or third-party citizen lawsuits.

For more information on Ecology’s Industrial Stormwater General Permit or water quality issues generally, please contact Dustin Till.