Storm Water Update

We recently informed our clients that there has been an apparent uptick in recent months of citizens suits against storm water permittees for alleged storm water violations under the Clean Water Act. According to a recent article in The Guardian, plastic manufacturers are a primary target of these suits. A non-profit group called the Plastic Pollution Coalition ("PPC") has reportedly teamed up with the environmental law firm Greenfire to go after some of the 3,000 plastic manufacturers in California. PPC claims that these businesses are violating their storm water permits by allowing pre-production microbeads and plastic byproducts to end up in rivers or the ocean. We are also aware that similar claims have been brought by other organizations. In addition, while the focus is on discharges of pre-production plastics, these organizations also look at discharges of other pollutants, as well as compliance with other storm water permit requirements such as observations, sampling, reporting, implementation of best management practices and updating Storm Water Pollution Prevention Programs ("SWPPPs").

Some environmental groups have also alleged in their 60-day notice letters and court filings that parties that reported sampling results for parameters such as total suspended solids and oils and grease that exceeded EPA "benchmarks" violated their industrial storm water permits. However, the EPA "benchmarks" are not enforceable standards and are not a part of, or even mentioned in, California's current General Industrial Storm Water Permit. Therefore, the mere exceedance of a "benchmark" is not, in and of itself, a violation of the permit. Exceeding the EPA benchmarks will also not constitute a violation of California's new industrial storm water permit scheduled to go into effect on July 1, 2015. The new permit expressly states that "exceedances . . . are not, in and of themselves, violations of this General Permit." Rather, under the new permit, an exceedance of these levels requires the discharger to undertake Exceedance Response Actions and changes the discharger's status under the permit.

In addition, a single exceedance of an EPA benchmark level is generally not of significant concern. Under EPA's Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Facilities, exceedances are only of concern where the average of samples taken over four consecutive quarters exceeds the benchmark for a pollutant. Under California's new industrial permit, an "annual" exceedance occurs only when the average of all sampling results within a reporting year exceeds the value and an "instantaneous maximum" is only exceeded when two or more analytical results taken within a reporting year exceed the value. Thus, whether under California's current industrial permit or the new permit, the mere exceedance of an EPA benchmark ought not to be considered a violation of the storm water permit. At the same time, however, when a number is in excess of these levels, it may be appropriate to try to determine the reason for the exceedance and whether steps should be taken to prevent exceedances in the future.

Under the Clean Water Act, a private party can file suit only (a) after providing 60 days advance notice and (b) if the violation is ongoing at the time it files suit. Therefore, if you receive a notice, it is important that you take immediate action to determine whether you are violating your storm water permit and, if so, take appropriate action to come into compliance. Doing so may eliminate the risk of suit being filed and penalties imposed.

This report is a publication of Loeb & Loeb LLP and is intended to provide information on recent legal developments. This report does not create or continue an attorney client relationship nor should it be construed as legal advice or an opinion on specific situations.