Stormwater discharge update: your NPDES permit is key to your Clean Water Act (CWA) liability
 Oct. 31, 2013

California's environmental regulatory agencies (Regional Water Quality Control Boards, AQMD, and DTSC, in particular) like other State agencies are not fully funded. Penalties can infuse these agencies with funds; manufacturers are a target. The August 8, 2013, National Resources Defense Council, Inc. v. County of Los Angeles ("NRDC") affirms the importance of having negotiated an NPDES permit that a permittee (manufacturers included) can meet, based on requirements that a permittee fully comprehends. For instance, does your NPDES permit call for specific pollution testing that could suffice alone equate to an NPDES permit violation? That was the issue in the NRDC decision.

Overview

NRDC filed suit against Los Angeles County, ("County"), and County Flood Control District, ("District") alleging that stormwater discharges by the County, the District, and the 84 incorporated municipalities in the District that discharge into municipal sewer system, ("MS4") violated NPDES ("Permit") limits. The parties to this case did not dispute that County and District violated Permit terms by discharging pollutants into the Los Angeles and San Gabriel Rivers in excess of permitted limits. Moreover, the County did not dispute that its own mass-emissions monitoring data that was taken at several County Monitoring Stations exceeded Permit limits. County and District argued that NRDC could not rely on County's and District's own mass-emissions monitoring data to establish their liability, but would have to produce independent data proving that County, District, or both were liable for pollution exceedances. The Ninth Circuit Federal Appeal Court rejected County's and District's argument finding both liable based on the Permit text clearly stating that mass-emissions monitoring is required to measure Permit compliance "of any Permittee." County's and District's own test results could prove a Permit violation independent of any other evidence, and, independent of evidence suggesting that any one was liable.

Background

The Clean Water Act, ("CWA"), is intended to restore and maintain the "integrity of the Nation's waters." 33 U.S.C. section 1251(a). CWA directs that no one is entitled to discharge any pollutant from any point source into waters of the United States. 33 U.S.C. sections 1311(a), 1362(12). Discharges are privileged conditioned on compliance with the requirements of an NPDES permit. Id. Sections 1311(a), 1342. One of the hallmarks of an NPDES is its requirement that the permittee conduct monitoring adequate to demonstrate compliance or non-compliance with the permit's terms, requiring the certification of the results under threat of criminal sanction. Id. Sections 1342(a) (2), 1318(a) (A); 40 C.F.R. Sections 122.44(i) (1). As the Fifth Circuit held, the CWA is "strong medicine." Tex. Mun. Power Agency v. EPA, 836 F.2d 1482, 1488 (5th. Cir. 1988).

Stormwater runoff is normally associated with precipitation events, such as rainstorms, which flow over streets, commercial sites, parking lots, and other developed sites. Most of the concern regarding stormwater is that it can become polluted by contaminants, such as heavy metals in street drainage, which can cause impairment of the beneficial uses of water bodies. Stormwater-associated contaminants often make its way into storm drains and ???? ?sewers, which "generally channel collected runoff into federally protected water bodies," such as rivers and oceans. Envtl. Def. Ctr. Inc. v. EPA, 344 F.3d 832, 840 (9th Cir. 2003). Although the term "nonpoint source" is not statutorily defined, several courts have held that storm sewers are established point sources that must satisfy the NPDES requirements.

The Regional Water Quality Control Board ("RWQCB") first issued an NPDES permit to the County and District on June 18, 1990, covering an extensive MS4 system that is composed of gutters, catch basins, storm drains, and pipes that collect and convey stormwater over a sprawling swath of incorporated cities and unincorporated lands, channeling and releasing untreated stormwater from its MS4 outfalls into the Los Angeles and San Gabriel Rivers, which, in turn, drain into coastal waters, including Santa Monica Bay and the Pacific Ocean. This Permit broadly covers all relevant discharges that occur within the boundaries of the Permittee municipalities, and incorporates RWQCB area-based pollution standards set forth in the RWQCB's Basin Plan. The Permit required County and District to conduct mass-emission monitoring at seven monitoring stations, testing that the Permit stated would measure County's and District's Permit compliance. Based on its Permit, County and District agreed that stormwater discharges exceeding Permit limits, based on bulk testing data alone, would amount to a Permit violation, and, a violation of RWQCB pollution standards.

County's and District's own data from its monitoring stations identifying 140 separate exceedances of the Permit's water quality standards-including excessive levels of aluminum, copper, cyanide, zinc, fecal coliform bacteria-in both the Los Angeles and San Gabriel Rivers. Court's Rationale County and District argued that mass-emission monitoring "....neither measures nor was designed to measure any individual permittee's compliance with the Permit," and cannot, therefore, be the basis for CWA liability. This argument failed as it ignored the Permit's clear text that based County's and District's liability, as a whole, on its mass-emissions data. NRDC did not have to produce data showing how any specific defendant was liable for any particular violation. All Permit holders were doomed by their own mass-emissions data.

Conclusion

The lessons from this case are not limited to the County's and District's Permit.

First, the County's and District's arguments that they subject to a less rigorous or unenforceable regulatory scheme for their stormwater discharges could not be reconciled by their Permit terms. This lesson applies to all permit holders, manufacturers included. Essentially, each NPDES permit is enforced as written meaning that exceedances through mass-emissions monitoring is a Permit violation giving rise to CWA liability for those contributing dischargers. For this reason, I invoke permit strategies with my manufacturing clients beginning with permit negotiations based on testing protocols that can consistently be met. For best practices, I then work with my clients on mock testing processes performed under the attorney/client/work product privileges to ensure ongoing compliance.

Second, manufacturers will face greater permit scrutiny as regulatory agencies are looking for ways to bring in greater fines, and an NPDES permit violation is a logical start. Why? Violate your permit and you have set yourself up for environmental liability.

Thierry R. Montoya is a Shareholder with AlvaradoSmith, APC representing manufacturers statewide in EPA, DTSC, AQMC, and Regional Board environmental matters in state and federal courts, in administrative courts on violation notices, and in all courts on environmental crimes. Thierry can be reached at: 714.852.6862, tmontoya@alvaradosmith.com

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