Articles on Water Quality

 

State Water Board Approves Composting General Order

Water Quality

     Earlier this month, the California State Water Quality Control Board (“State Water Board”) approved a General Order for Waste Discharge Requirements (“WDRs”) for composting operations, which will streamline and standardize permitting processes and regulate water quality at new and existing composting facilities.  While the General Order was approved with very little fanfare or media coverage, its implications are significant.

General Order Coverage

    The General Order, which applies to State composting facilities that process at least 500 cubic yards of material per year, will impose a regulatory scheme on a large number of the organics facilities already operating in the State.  Moreover, the General Order’s facility coverage is likely to expand in the coming years, given the recent passage of California Assembly Bill 341 (“A.B. 341”) (2011), which encourages the addition and expansion of State composting facilities by establishing a State policy goal that at least 75 percent of the solid waste generated in the State be source-reduced, recycled, or composted by 2020.

Waste Disposal and Composting in California

     The State of California currently disposes of an annual estimated 35 million tons of waste in landfills, of which an estimated 32 percent is compostable organic material, 29 percent is construction debris, and 17 percent is paper.  Much of the organic material could be, but is not being, composted, which is leading to the excessive and unnecessary filling of State landfills.  Composting yields environmental benefits by preserving nutrients, diverting waste from landfills, improving soil, reducing runoff, and sequestering carbon.

Prior Regulatory Scheme 

     In the past, potential water quality issues arising from composting facilities were regulated by the State’s nine Regional Water Quality Control Boards through individual facility WDRs, or waivers of WDRs.  California Water Code section 13263 requires that the water boards prescribe WDRs that, among other things, implement water quality control plans and consider the beneficial uses to be protected.

     Historically, the principal water quality issue at composting facilities has been the control of “leachate,” a liquid byproduct of composting.  Leachate consists of a variety of pollutants, including salts, nitrates, pesticides, and metals, which have the potential to impact ground waters and surface waters of the State.

Permit Basics

     The General Order puts most composting facilities in either a Tier I or a Tier II category, with Tier II facilities being subject to heightened regulatory requirements.  Classification is predominantly based on feedstock type, total volume of materials, and hydrogeological siting.

     With respect to each tier, the General Order sets forth standards for depth to groundwater, distance to surface water, allowable and prohibited feedstocks, additives, surface pads, wastewater handling, berms, and facility monitoring.  Some composting facilities will fall into neither tier, necessitating the continued use of individual WDRs.

 Over-Regulation of Composting?

     A number of composting industry participants have suggested that the cost of compliance with the General Order is high compared to the relatively innocuous threats posed to water quality by composting activities.  Consequently, they argue, composting facilities may consider shutting down or raising fees—both of which would be detrimental to the State’s A.B. 341 goals.

     In response to industry comments, the State Water Board revised a number of the General Order’s more onerous regulatory requirements.   For example, in an earlier draft of the General Order, detention ponds at composting facilities were required to contain all runoff from working surfaces in addition to precipitation from a 25-year, 24-hour storm event.  Industry participants argued that the requirement lacked flexibility.  In response, the General Order was revised to indicate than an “equivalent alternative” to the detention pond requirement could be approved by a regional water board.

     Whether the General Order strikes the appropriate regulatory balance between encouraging composting and adequately protecting water quality is still in question.  Only time will tell whether the General Order accomplishes those dual objectives.

 Next Steps for Composting Facilities

     Existing composting facilities, except those with individual WDRs or conditional waivers of WDRs, are required to seek coverage under the General Order by submitting a Notice of Intent (“NOI”), filing fee, and technical report within one year of adoption of the General Order (as indicated above, the General Order was adopted on August 4, 2015).  New composting operations that propose to begin operating after adoption of the General Order, are required to seek coverage under the General Order by submitting a complete NOI, filing fee, and technical report at least 90 days prior to commencement of operations.

     After the appropriate regional water board determines that an NOI and technical report are complete and the operation can be appropriately regulated under the General Order, the regional water board will issue a Notice of Applicability (“NOA”) which will confirm the facility’s tier and a timeline for compliance with the General Order.  Existing facilities will have six years to come into full compliance with the General Order.

State Water Board Continues Deadline for Compliance with New California Industrial General Permit for Stormwater until August 14, 2015

Water Quality

As an update to a previous write-up on the deadline for compliance with the new California Industrial General Permit for Stormwater (General Permit), the State Water Resources Control Board (State Water Board) has continued the deadline for registration and compliance from July 1, 2015 to August 14, 2015.

In a notice circulated on the original deadline for compliance, July 1, 2015, the State Water Board acknowledged that its web-based database for stormwater compliance (SMARTS) was experiencing technical issues which were limiting registration access.

As a result, the State Water Board extended the deadline for registration from July 1, 2015 to August 14, 2015.  This extended deadline should enable those industrial facilities that were either unaware of the July 1, 2015 deadline or those struggling to meet that deadline to timely register.

As mentioned before, determining whether an industrial facility is subject to the General Permit and maintaining compliance with the General Permit can be complicated.  Simplifying that process can be done through enlisting the assistance of water quality professionals such as legal counsel or consultants.  If you haven’t already, it is important to identify water quality professionals with experience in stormwater permitting and compliance to ensure a facility appropriately complies with the new General Permit.

 

 

 

 

 

Christopher ‘Smitty’ Smith
CSmith@GreenbergGlusker.com
310.201.7579

 

Deadline For Compliance With New California Industrial General Permit For Stormwater Is A Week Away (July 1, 2015)

Water Quality

On July 1, 2015, the new California Industrial General Permit for Stormwater (General Permit) will take effect and along with it come a host of new compliance obligations. Chief among those obligations is the completion and submission of a notice of intent (NOI) to be bound by the new General Permit. The last time industrial facilities were obliged to submit an NOI was when the soon-to-be-expired General Permit was updated back in 1997.  Much has changed in the world of industrial stormwater compliance since then.

For those less familiar with the General Permit, it applies in California to the tens of thousands of industrial facilities throughout the state and serves to regulate stormwater emanating from those facilities. The application of the General Permit to any given facility is based on that facility’s Standard Industry Classification (SIC) code. The SIC code for a given facility is determined based on the primary industrial activity at the facility.

The first step in complying with the new General Permit is to determine if an industrial facility is subject to it.  For those industrial facilities that already have their own individualized permit for stormwater, the General Permit’s compliance obligations are inapplicable. And for those industrial facilities that are already operating under the soon-to-be-expired General Permit, the new General Permit’s compliance obligations may be inapplicable.  Oftentimes, industrial facilities will just re-notice their intent to be bound by a new permit without evaluating whether their facility should be subject to a permit. This common practice should be avoided, if possible, to ensure that a facility is not expending time and money to comply with a permit that is inapplicable. Finally, for those industrial facilities that are not already operating under the General Permit, it’s time to evaluate whether the General Permit applies.

Determining whether a facility is subject to the General Permit begins with identifying the primary operations at a facility and locating the associated SIC code. To determine a facility’s SIC code, the State Water Resources Control Board has included Attachment A to the new General Permit which matches up SIC codes with a facility’s primary activity. Generally, the SIC codes covered include industrial operations ranging from manufacturing, oil and gas, mining, hazardous waste, landfill and recycling, transportation, and sewage and wastewater treatment works.

Bear in mind that if it is determined that a facility was not previously obligated to comply with the General Permit because that facility fell under the light industry exemption, that exemption is not carried through to the new General Permit. It remains unclear how many new facilities will be obligated to comply with the new General Permit based on the removal of this exemption, but the estimates are in the tens of thousands statewide. Despite doing away with the oft-utilized light industry exemption, the new General Permit provides a separate carve out from coverage known as the no exposure certificate (NEC). An NEC is available to a facility if that facility does not expose stormwater to industrial activities.  Practically, obtaining an NEC serves to circumvent the obligations associated with compliance with the General Permit.

Assuming an industrial facility is obligated to comply with the new General Permit, then along with completing and submitting an NOI, that facility must ensure registration in the stormwater multiple application and report tracking system (SMARTS). SMARTS is a web-based database for stormwater compliance and reporting. Instituting SMARTS is a change from the old model which involved submitting quarterly and annual reports in hardcopy. While SMARTS will make it easier and less expensive to maintain compliance with regulators, it will equally enable concerned citizens and environmental groups to have instant and up-to-date access to a facility’s records of compliance. A facility’s stormwater pollution prevention plan (SWPPP) may serve as the best example of how SMARTS may change the landscape for stormwater compliance.  Historically, some industrial facilities have been lax about maintaining and updating SWPPPs.  Prior to SMARTS, this lax effort may have gone unnoticed, but now that same lax effort is more likely to garner the attention of regulators, concerned citizens and environmental groups, or both.  And with the recent spike in Clean Water Act citizen suits filed in federal courts around the state, garnering the attention of any one of these groups can prove to be very costly and time consuming.

Determining whether your facility is subject to the General Permit and maintaining compliance with the General Permit can be complicated. Simplifying that process can be done through enlisting the assistance of water quality professionals such as legal counsel or consultants.  If you haven’t already, it is important to identify water quality professionals with experience in stormwater permitting and compliance to ensure a facility is afforded the protections available for compliance with the General Permit.

 

 

 Christopher ‘Smitty’ Smith
CSmith@GreenbergGlusker.com
310.201.7579

Guiding Us Through the Waters of the United States: New Guidelines Proposed Clarifying What Waters are Protected by Clean Water Act

Water Quality

WaterfallOn May 2, the Environmental Protection Agency (EPA) and Army Corps of Engineers formally proposed new guidelines for determining which waters and wetlands are “waters of the United States” and are, therefore, protected under the Clean Water Act (CWA).

According to the notice, jointly published in the Federal Register, the new guidelines will provide clarity and predictability regarding the scope of the “waters of the United States.” The agencies saw this as needed since the waters have become somewhat murky (terrible pun, I know…) after the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006.

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Sorry Sixth Circuit – You Just Got Housed: House passes a bill taking pesticides out of CWA’s jurisdiction

Water Quality

CongressOn Tuesday, the House of Representatives passed a bill sponsored by Rep. Bob Gibbs (R-Ohio) known as the Reducing Regulatory Burdens Act of 2011 (or H.R. 872). The bill would amend the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) such that CWA permits, known as National Pollutant Discharge Elimination System permits (or NPDES permits), would not be required when a pesticide is applied to or near a navigable waterway in accordance with its FIFRA label.

Essentially, the bill takes pesticides out of the definition of pollutant such that these permits are not mandated.
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Can Construction Site Webcams Be Far Behind?

Water Quality

New Construction Water Quality Regulations Impose Tough Numeric Limits And Internet Reporting Requirements

The State Water Resources Control Board (“State Water Board”) recently adopted toughened standards for water flows generated by construction sites under a new statewide storm water construction general permit, Water at Construction Siteeffective July 1, 2010. The new permit (the “2010 Permit”) replaces the storm water construction general permit in place since 1999 (the “1999 Permit”) and imposes heightened requirements for managing water during construction. The 2010 Permit applies to construction sites of at least one acre and smaller sites that are part of a common development plan.

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EPA Holds Hearings on Hydraulic Fracturing

Water Quality

Hydraulic FracturingAs part of a broad investigation into the practice of pressurized injection of water, sand, and chemicals to extract natural gas from shale, known as hydraulic fracturing or fracking, the Environmental Protection Agency (EPA) held several public hearings this week in Binghamton, New York. Hydraulic fracturing operates by the pressure of the injected materials exceeding the rock strength and the fluid then opening or enlarging fractures in the rock. As the formation is fractured, a “propping agent,” such as sand or ceramic beads, is pumped into the fractures to keep them from closing as the pumping pressure is released.

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EPA Takes Steps Under The Clean Water Act to Protect California’s Coastline

Water Quality

On August 25, 2010, the Environmental Protection Agency (EPA) proposed the nation’s largest coastal “No Discharge Zone,” covering California’s entire 1,624 miles of coastline. Pursuant to the federal Clean Water Act, states may request EPA to establish vessel no-discharge zones to protect and restore water quality. Non-sewage discharge from vessels is regulated under state law. Acting pursuant to California’s Clean Coast Act of 2005, the State Water Resources Control Board requested EPA to adopt the protective zone.
San Francisco Cruise Ship

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There’s a “Canary” in My Water – EPA Software Detects Hazardous Contaminants in Drinking Water Systems

Water Quality

CanaryBringing to mind the old adage “canary in a coalmine,” the Environmental Protection Agency (EPA) announced this week its innovative water quality software aptly named “Canary.” Developed by EPA scientists in collaboration with the Department of Energy (DOE), the Canary software can help detect chemical and biological contaminants including pesticides, metals and pathogens in drinking water.

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What’s Coming Down the River – How EPA’s Designation of the Los Angeles River as a “Navigable Waterway” May Impact Future Development

Water Quality

As reported by the Los Angeles Times, the U.S. Environmental Protection Agency (EPA) designated the entire 51-mile, concrete lined Los Angeles River a “traditional navigable water,” under the Clean Water Act on Wednesday. Although it may be hard to picture the Los Angeles River as a navigable waterway on par with the mighty Mississippi, EPA made the designation based “on a myriad of factors including the river’s current and historical navigation by water craft, current commercial and recreation uses, and established local plans for restoration of the river.” The designation clarifies the Los Angeles River’s legal status
under the Clean Water Act and strengthens the protection to the small streams and wetlands that make up the 834-square mile Los Angeles River watershed. It also helps ensure the health and safety of those who use the river. While many Angelenos have reason to applaud this designation, it may make it more costly and difficult to develop along the river because developers will have to comply with the Clean Water Act.Los Angeles River

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