Compliance Challenges: California Construction

General PermitPresentation by Brenda W. Davis

AGC of CaliforniaBoard of Directors Meeting

January 26, 2012

General Permit Background

The federal Clean Water Act [33 U.S.C.A. §§ 1251 et seq.] provides for a permit system to regulate the discharge of pollutants and dredged or fill material to the “ navigable” waters of the United States and to regulate the use and disposal of sewage sludge. [Wat. Code, § 13370 subd. (a); see 33 U.S.C.A. § 1342]

National Pollutant Discharge Elimination System (“NPDES”)

The permit system is called the NPDES. The Clean Water Act provides that NPDES permits may be issued by states that are authorized to implement the provisions of the act. [ Wat. Code, § 13370 subd. (b); 33 U.S.C.A. § 1342(b)]

California is authorized to implement the NPDES [Wat. Code, § 13370 subd. (c)], which it does by ensuring that each report of waste discharge related to discharges of pollutants from point sources to navigable water is filed and processed in compliance with the federal regulations governing the NPDES program [Wat. Code, § 13376; Cal. Code Reg, tit. 23, § 2235.1] and that waste discharge requirements issued by the boards for discharges from point sources to navigable waters comply with the Clean Water Act provisions. [Wat. Code, §§ 13374, 13377; Cal. Code Reg., tit. 23, § 2235.2]

General Permit for Discharges of Storm Water Associated with Construction Activity

While federal regulations allow two permitting options for storm water discharges (individual permits and General Permits), the SWRCB has elected to adopt only one statewide General Permit at this time that will apply to all storm water discharges associated with construction activity

Construction General Permit Order 2009-0009-DWQ.

To obtain coverage under this General Permit, dischargers shall electronically file: The Permit Registration Documents (PRDs), which

includes a Notice of Intent (NOI), Storm Water Pollution Prevention Plan (SWPPP), and other compliance related documents required …

It is expected that as the storm water program develops, the Regional Water Quality Control Boards (Regional Water Boards) may issue General Permits or Individual Permits containing more specific permit provisions.

CWA Discharges and SWRCB Reporting

A person who discharges pollutants or proposes to discharge pollutants to the navigable waters of the United States …shall file a report of the discharge in compliance with the procedures set forth in Section 13260. Cal. Water Code § 13376

All permits require the facility to submit periodic monitoring reports to the Regional Board. Dischargers must also report on compliance with time schedules contained in orders. Finally, dischargers must report any incident that could impact water quality, such as spills or permit violations.

SWRCB Enforcement

◦ Inspection Reports/Notices of Violation/Staff Enforcement Letters/Verbal Notification – Provide notification of violations;

◦ 13267 Letters – Directives to provide information; ◦ Cleanup and Abatement Orders; ◦ Cease and Desist Orders: may be issued directly by a

regional water quality control board, after notice and hearing; C/D orders of a regional water quality control board become effective and final upon issuance;

◦ Administrative Civil Liabilities; ◦ Referral to the Attorney General or a District Attorney for

prosecution in the courts; ◦ Citizen Suits.

Ranking Violations

The first step in SWRCB enforcement ranking is determining the relative significance of each violation Class I priority violations are those violations that pose an immediate and substantial

threat to water quality and that have the potential to cause significant detrimental impacts to human health or the environment; Class I priority violations include, but are not limited to, the following:◦ a. Significant measured or calculated violations with lasting effects on water quality

objectives or criteria in the receiving waters;◦ b. Violations that result in significant lasting impacts to existing beneficial uses of

waters of the State; ◦ c. Violations that result in significant harm to, or the destruction of, fish or wildlife;◦ d. Violations that present an imminent danger to public health;◦ e. Unauthorized discharges that pose a significant threat to water quality;◦ f. Falsification of information submitted to the Water Boards or intentional

withholding of information required by applicable laws, regulations, or enforceable orders;

◦ g. Violation of a prior enforcement action Class II violations are those violations that pose a moderate, indirect, or cumulative

threat to water quality and, therefore, have the potential to cause detrimental impacts on human health and the environment. Negligent or inadvertent noncompliance with water quality regulations that has the potential for causing or allowing the continuation of an unauthorized discharge or obscuring past violations is also a class II violation.

Class III violations are all violations that are not class I priority or class II violations.

Enforcement Priorities for Individual Entities

The second step in enforcement ranking involves examining the enforcement records of specific entities based on the significance and severity of their violations.

Factors considered include: ◦ Class of the entity’s violations;◦ History of the entity

a. Whether the violations have continued over an unreasonably long period after being brought to the entity’s attention and are reoccurring;

b. Whether the entity has a history of chronic noncompliance; c. Compliance history of the entity and good-faith efforts to eliminate

noncompliance;◦ Evidence of, or threat of, pollution or nuisance caused by violations;◦ The magnitude or impacts of the violations;◦ Case-by-case factors that may mitigate a violation.

Contractors’ rights and remedies

Appeal of RWQCB Decision: ◦Any party may appeal a Regional Board action,

or inaction, not just the party being regulated. Appeals must be made within 30 days of the Regional Board's action and can be done by writing a letter to the State Board.

Calculating Penalties

Some Factors in calculating the “Total Base Liability Amount” include: ◦Potential for Harm for Discharge Violations –

Calculate Potential for Harm considering: (1) the potential for harm to beneficial uses; (2) the degree of toxicity of the discharge; and (3) the discharge’s susceptibility to cleanup or abatement;

◦Per Gallon and Per Day Assessments; ◦Adjustment Factors – Adjust the initial amounts for

each violation by factors addressing the violator’s conduct, multiple instances of the same violation, and multiple day violations;

Adjustments

Total Base Liability amount may be adjusted, based on consideration of: ◦Ability to Pay and Ability to Continue in

Business; ◦Other Factors as Justice May Require;◦Economic Benefit;◦Maximum and Minimum Liability Amounts.

Once adjustments are considered, the “Final Liability Amount” will be assessed.

Judicial Review

C/D Order: An aggrieved person may obtain review of any preliminary cease and desist order by petition for administrative mandamus;

Cal. Water Code § 1126: “Any party aggrieved by any decision or order may, not later than 30 days from the date of final action by the board, file a petition for …for review of the decision or order. Except in cases where the decision or order is issued under authority delegated to an officer or employee of the board, reconsideration before the board is not an administrative remedy that is required to be exhausted before filing a petition for writ of mandate.

California Rulemaking

CA APA: To comply with the Administrative Procedures Act (APA) …an agency must:◦ give the public notice of its proposed regulatory action;◦ issue a complete text of the proposed regulation with a statement of

the reasons for it;◦ give interested parties an opportunity to comment on the proposed

regulation;◦ respond in writing to public comments, and;◦ forward a file of all materials on which the agency relied in the

regulatory process to the Office of Administrative Law, which reviews the regulation for consistency with the law, clarity, and necessity. Any regulation that substantially fails to comply with these requirements

may be judicially declared invalid. Cal.Gov.Code §§ 11340.5(a), 11346.2, 11346.4, 11346.5, 11346.8(a), 11346.9, 11347.3(b), 11349.1, 11349.3.

Federal Rulemaking

Federal Administrative Procedure Act requires: ◦ Notice; General notice of proposed rule making shall be

published in the Federal Register… Contents-5 U.S.C.A. § 553: “The notice shall include--(1) a

statement of the time, place, and nature of public rule making proceedings;(2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

◦ Public comments (the golden key to public participation)-5 U.S.C.A. § 553: c) After notice required, the agency shall give interested persons: an opportunity to participate in the rule making through

submission of written data, views, or arguments with or without opportunity for oral presentation

After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.

Looking Forward

General Permit Renewal in 2014