After many years of drought, in late 2023 and early 2024 California experienced significant rain. Indeed, the National Oceanic and Atmospheric Administration reported rainfall quantities far exceeding averages in most areas statewide. With the rain came consequences for many of California's industrial facilities including an onslaught of 60-day notices of violation (NOVs) from private enforcers threatening to file federal Clean Water Act complaints.
Consequences arose because many of California's industrial facilities are subject to California's General Industrial Storm Water Permit (IGP). For those new to this regulatory framework, the IGP regulates industrial stormwater discharges and non-storm water discharges from specified industrial facilities in California. Legally, the IGP implements the federally required stormwater regulations under the Clean Water Act in California for stormwater discharges to waters of the United States — a vague term, per the U.S. Supreme Court's recent decision on that topic.
The current iteration of the IGP (WQ 2014-0057-DWQ as amended in 2015 by WQ 2015-0122-DWQ and in 2018 by WQ-0028-DWQ) became originally effective in 2015 and contains provisions regarding Discharge Prohibitions, Effluent Limitations, Receiving Water Limitations, Total Maximum Daily Loads, Storm Water Pollution Prevention Planning, Sampling, Monitoring, and Reporting, among other topics. While the 2015 IGP brought many new changes to stormwater regulation, perhaps the greatest change was to require mandatory electric filing under the Storm Water Multiple Application & Report Tracking Systems (SMARTS). SMARTS was designed to foster greater public transparency and data management with respect to stormwater.
However, parties subject to the IGP have become acutely aware that they are being watched closely. Prior to SMARTS, it was more difficult for private enforcers to identify IGP non-compliance, as records could only be requested by formal public records act requests. Since the advent of mandatory electronic filing via SMARTS, almost anyone can quickly and efficiently identify facilities that are potentially out of compliance with the IGP.
7 Tips For Responding To An IGP NOV
Responding to an IGP NOV can be a complex matter. Here are some tips we've developed to facilitate success:
- Understand The Violations: Thoroughly review the NOV to understand the specific violations cited by the private enforcer. Make sure you understand the allegations against your facility or operation.
- Gather Information: Collect all relevant documents, records, and sampling data to understand whether a violation has occurred. This may include permits, monitoring reports, sampling data, training records, photos, sweeping logs, and any other evidence that demonstrates compliance with the IGP and Clean Water Act.
- Consult Legal Counsel: Immediately consult with legal counsel experienced in compliance with the IGP. They can provide valuable advice on how to respond effectively, protect your interests, and minimize or resolve liability.
- Engage An Appropriate Stormwater Consultant: Not every stormwater consultant is equally positioned to help a facility that faces allegations of non-compliance. The IGP is complex and requires a well-trained practitioner to interpret. Matters to consider are whether your attorney should directly retain the consultant to facilitate privilege, the consultant's level of experience in stormwater matters, and whether the consultant is a Qualified Industrial Stormwater Practitioner (QISP) or Trainer of Record (TOR). A QISP is a specific certification involving IGP matters and a TOR Record is a certification level above a QISP.
- Respond Promptly: Don't delay your response. Because a lawsuit is typically filed 60 days after service of the NOV, the clock starts ticking instantly. Most facilities need that time to develop a compliance and response strategy. This is particularly true as many advanced BMPs (a term for stormwater "best management practices") may require engineering design and permitting.
- Document Everything: Keep detailed records of all communications, meetings, and actions taken in response to the NOV. These records may be important if the matter escalates or if there are disputes about compliance efforts.
- Prevent Future Violations: Implement measures to prevent similar violations from occurring in the future at the facility at issue as well as other facilities in the company's control. This may involve updating procedures, providing additional training to staff, greater consultant involvement, or investing in new technologies or infrastructure.
Remember that each situation is unique, and the appropriate response will depend on the specific circumstances of the violations alleged in the NOV. It's essential to approach the process thoughtfully and diligently to achieve the best possible outcome for your company.
Originally published by Facility Executive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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