The Rising Tide of Storm Water Permit Enforcement

It is a safe bet that every owner or operator of industrial property reading this article has one or more sites which will be the subject of a state, federal or local storm water inspection or enforcement action in the coming twelve months. The Clean Water Act (CWA) has, since 1972, required that a CWA permit be obtained prior to any discharge into waters of the United States. However, EPA regulation of storm water runoff did not begin until 1990. Since then, storm water-related obligations and the enforcement of these rules have grown dramatically. State, local and federal programs now involve literally thousands of inspectors and enforcement personnel.

In general, state and federal storm water permits require that "operators" of "industrial activities" (i.e., facilities described by eleven Standard Industrial Classification (SIC) codes) must design, document and implement a site-specific program to reduce exposure of industrial pollutants to storm water. Note that in Texas, the requirement to obtain a storm water permit is imposed on both the industrial site operator and the property owner, even if the owner is a passive landlord.

The adequacy of the permittee's chosen site-specific controls are only reviewed in the context of enforcement inspections. Permittees can reduce risks of enforcement by: (1) prevention of obvious or significant non-compliance, (2) careful preparation for the inevitable storm water inspection, and (3) "deflection" of formal penalty actions by immediate response to issues raised by inspectors and enforcement personnel.

Basic Storm Water Permit Compliance

The first step in minimizing storm water enforcement costs is to ensure that obvious and serious "core" violations are not present during inspections. Many inspectors will merely verbally identify minor problems if none of the core issues are present. If core violations are detected, however, the inspector will proceed to catalogue all deficiencies so as to "add weight" to the coming enforcement case.

If the core components of a storm water pollution control program are present, enforcement personnel will be less likely to punish a minimally compliant operator because "more" could be done to reduce pollutant exposure to storm water. However, if any of these are absent, it is likely that an enforcement action will result and that a very thorough recitation of other, more technical deficiencies will be documented and used to maximize a civil penalty assessment.

Managing Government Inspections

The second step in minimizing enforcement costs is to anticipate and prepare for the inevitable storm water inspection. There are four goals in preparing for any government inspection:

• Ensure that the facility has eliminated violations which lead the inspector to conclude that formal enforcement action will be required.
• Minimize inspector time onsite by having all desired information ready at hand and, if possible, in a format that imparts the impression that storm water permit obligations are addressed with some degree of organization and efficiency.
• Ensure that all observations, comments or conclusions by the inspector are documented by facility staff through close observation during the inspection and by debriefing the inspector in an "exit" conference.
• Do not challenge, intimidate or otherwise aggravate the inspector.

If the inspector has been closely observed during the inspection and gently interrogated in the exit interview, the facility operator will know whether and to what degree its storm water program has been found to be deficient. At this point (i.e., prior to the departure of the inspector), facility staff should make any feasible corrections or improvements to address stated violations or inspector concerns. This immediate action will, at a minimum, "stop the penalty clock" for daily violations and may convince agency enforcement staff that formal enforcement is not necessary to deter future violations.

Minimize The Agency's Enforcement Response

If the inspector identifies a significant violation or numerous small deficiencies, the effort to deflect formal enforcement must then focus on agency enforcement staff after they receive the inspector's findings. The goal of negotiations at this point is to convince the relevant agency officials that full compliance has been achieved, that the inspection itself has (re)invigorated the facility's commitment to storm water management, that significant improvements have been implemented (ideally, before the meeting date), and that the government's ultimate goal of assuring compliance will not be served by further "escalation" of the enforcement process. If it is possible to disprove or undermine any of the core violations identified by the inspector, these anecdotes should be presented as support for the premise that no further action is needed.

Conclusion

The EPA's delegation of state and local storm water programs means that many property owners will have some interaction with the storm water enforcement process over the coming year. If your facility managers have not taken efforts to prevent violations, or if they fail to quickly deflect formal enforcement, these costs of proactive compliance will quickly be surpassed, if not dwarfed, by the costs of administrative or judicial process, litigation of liability and negotiation of civil penalties.
  

For further information on this topic, please contact Pat Larkin at patrick.larkin@strasburger.com or Beth Tiggelaar at beth.tiggelaar@strasburger.com.

     
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