Environmental Checkup: Is Your Business in Compliance With Virginia’s Industrial Storm Water General Permit?

Virginia’s new Industrial Storm Water General Permit, covering “point source” discharges of storm water “associated with industrial activity” to surface waters of the Commonwealth, became effective June 30, 1999. The general permit mandates the development and implementation of a facility-specific Storm Water Pollution Prevention Plan (SWPPP) for each covered facility, and various monitoring and sampling requirements depending on a facility’s industry sector. Point source discharges are those that flow through any discernable, defined and discrete conveyance (such as, a ditch, channel or swale ), as compared to uncollected “sheet-flow” run-off. Facilities conducting industrial activities required to have registered under the general permit (or to have obtained an individual permit) generally include those within Standard Industrial Classification (SIC) codes 10-14, 20-45, 50 and 51, with many specific exceptions or limitations. A facility may qualify for an exemption from the requirement to obtain a permit if it properly certifies to the Virginia Department of Environmental Quality (DEQ) that storm water is not contaminated by exposure to industrial activity at the facility.

The SWPPP must identify potential sources of storm water pollution, and detail measures to limit contamination of storm water and assure compliance with the other requirements of the general permit such as training, inspections, and maintenance — all of which must be documented in plan. The SWPPP must also contain a certification that the discharge has been tested or evaluated for the presence of non-storm water discharges.

All covered facilities are required to obtain and visually inspect quarterly grab-samples of storm water discharges for obvious signs of contamination. Facilities in numerous sectors (e.g., timber products, chemicals and allied products manufacturing, landfills, automobile salvage yards, scrap/waste recycling, food and kindred products, concrete products, transportation, printing, fabricated metal products, mining and many others) are required to obtain and analyze samples for specified pollutants of concern (POCs) twice a year, during years two and four of the general permit, in order to determine the effectiveness of their SWPPPs. Many facilities are also subject to enforceable numeric effluent limitations under the general permit and must obtain and analyze samples for the limited contaminants annually to verify compliance.

For most covered facilities, the SWPPP, including any revisions required to comply with the new general permit, must have been prepared and implemented no later than March 26, 2000. If construction is required to fully implement measures required by the plan, reasonable interim measures must be taken and full compliance must be achieved as soon as practicable, but no later than June 30, 2002.

If your facility is currently operating under a general permit, you should be conducting quarterly visual monitoring of your storm water discharges and maintaining reports of the observations on-site with your SWPPP. Visual monitoring for the fourth quarter of 2000 may be performed during any storm event occurring any time from October 1st to December 31st.. Facilities subject to numeric effluent limitations should have completed the first annual sampling and analyses of their storm water discharges for the limited contaminants by June 30, 2000, and submitted the results in Discharge Monitoring Reports (DMRs) to the DEQ. For those facilities included within sectors required to conduct semi-annual sampling for POCs in years two and four of the permit, the first semi-annual sampling event must be completed prior to the end of this year and the results submitted to DEQ in a DMR. Check your permit carefully; if you are subject to numeric effluent limitations and/or are required to conduct semi-annual sampling in years two and four of the permit and you miss the deadlines for submitting the data to DEQ, you could be inviting some unwanted attention.

If your permit includes numeric effluent limitations and you exceed those limitations, you could be in violation of your permit and be subject to action by the DEQ. Significant fines may be assessed and other remedies may include additional sampling, review of processes and operations, and changes to the SWPPP.

If your facility is required to conduct semi-annual sampling in years two and four of the permit, the average concentrations of the POCs for the second year sampling events are compared to specified “monitoring cut-off concentrations” (MCOCs). These MCOCs are not enforceable limits; rather, the DEQ utilizes them to assist in evaluating whether the facility’s SWPPP is adequate and being successfully implemented. If an annual average POC concentration during the second year exceeds the MCOC, the DEQ will request that the facility review and improve their SWPPP. The sampling in the fourth year will demonstrate whether the improvements were effective. If the annual average concentrations for the POCs in the second year do not exceed the MCOCs, the fourth year sampling may be waived (on a pollutant-by-pollutant and discharge-by-discharge basis) provided that the facility continues to implement the successful SWPPP.

If either numeric effluent limitations or MCOCs are exceeded, you should be prepared for an inspection by the DEQ. At this point, legal and technical advice is essential. One focus of the inspection will be your SWPPP. If your SWPPP is not up-to-date, or if there is no documentation for the required activities, the DEQ could consider you to be out of compliance with your permit. Regardless, changes to the facility and/or its practices and procedures will be required in an effort to eliminate the exceedances.

Copyright, Gentry Locke Rakes & Moore, November 2000

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.