Managing Clean Water Act Compliance: What Businesses Need to Know About Industrial General Permit Coverage

Permitting is a key aspect of Clean Water Act compliance for companies doing business in California. For many companies, this includes obtaining and maintaining Industrial General Permit (IGP) coverage for businesses with industrial operations coming into contact with stormwater. If your company is required to have IGP coverage, what do you need to know about compliance? Find out from an experienced California water lawyer at Bick Law LLP.

Using Industrial General Permit Coverage for NPDES Permit Compliance

As the California State Water Resources Control Board (SWRCB) explains, “[i]f you discharge pollutants from a point source to a water of the United States you need an NPDES permit.” While there are multiple types of National Pollutant Discharge Elimination System (NPDES) permits, many companies can use the IGP to satisfy their NPDES permit obligations. As the California SWRCB also explains:

“The Industrial General Permit regulates industrial storm water discharges and authorized non-storm water discharges from industrial facilities in California . . . . Industrial facilities such as manufacturers, landfills, mining, steam generating electricity, hazardous waste facilities, transportation with vehicle maintenance, larger sewage and wastewater plants, recycling facilities, and oil and gas facilities are typically required to obtain Industrial General Permit coverage.”

While obtaining IGP coverage can be a critical step for maintaining Clean Water Act compliance in California, companies that have IIGP coverage must take the necessary steps to maintain their coverage as well. Failure to do so can result in enforcement actions and substantial penalties. Some of the steps companies may need to take to maintain IGP coverage include:

• Certifying ad hoc reports within 30 days of lab report issuance and uploading to the State Water Board’s database site, known as the Stormwater Multiple Application and Report Tracking System (SMARTS);
• Preventing Numeric Effluent Limitation (NEL) and Numeric Action Level (NAL) exceedances;
• Implementing Stormwater Pollution Prevention Plan (SWPPP) measures necessary to address NEL and NAL exceedances and prevent future exceedances;
• Timely making necessary changes to SWPPPs and submitting the updated SWPPPs to the State Water Board via SMARTS; and,
• Keeping five years’ work of IGP compliance documentation available for onsite inspection.

These are just examples of some of the requirements that can potentially apply depending on a company’s type of Industrial General Permit coverage. There are three types of coverage—Notice of Intent (NOI), No Exposure Certification (NEC), and Notice of Non-Applicability (NONA)—each of which presents its own unique set of compliance challenges. NOI is applicable if there is a discharge of stormwater that may contain pollutants authorized by the IGP, which requires full IGP permit coverage and compliance with IGP requirements. 

NEC is applicable if a facility can eliminate potential sources of pollution in stormwater discharges; many permitting requirements do not apply unless exposure occurs at that site at any time during the 5-year term. If exposure occurs during a 5-year term, then full IGP permit coverage through an NOI is automatically triggered. An NEC is renewed by application every 5 years. 

NONA is a state-level exemption to the IGP; California’s Notice of Non-Applicability provides an exemption from federal permitting requirements under certain conditions. To receive a NONA, an industrial facility must prevent all stormwater from discharging to waters of the United States, even during a maximum historic precipitation event. This can be accomplished by collecting all stormwater on the facility’s property and preventing 100 percent of the discharge of stormwater from flowing offsite. 

For companies that need to maintain IGP coverage, identifying, documenting, and applying for the correct type of coverage – NOI, NEC, or NONA – is essential.  Complying with the wrong set of requirements is a violation of the Clean Water Act.

It is also important to note that, like many other aspects of Clean Water Act compliance, IGP compliance can be a moving target and varies by state. We have seen some significant changes to California’s IGP compliance requirements in recent years. As a result, along with managing compliance internally, companies must also monitor for external developments that may require amendments to their SWPPPs or other compliance resources.

The IGP only applies to industrial operations coming into contact with stormwater that is discharged to waters of the United States. It does not apply to construction on properties, which requires a General Permit for Stormwater Discharges Associated with Construction and Land Disturbance Activities (Construction General Permit or CGP). Construction activity subject to this permit includes clearing, grading, and disturbances to the ground, such as stockpiling or excavation, but does not include regular maintenance activities performed to restore the original line, grade, or capacity of the facility. Dischargers whose projects disturb one or more acres of soil or whose projects disturb less than one acre, but are part of a larger common plan of development that in total disturbs one or more acres, are required to obtain coverage under the CGP..

Enforcement Through Citizen Suits

It is important to know that any citizen can bring a lawsuit to enforce the Clean Water Act, including seeking penalties and attorneys’ fees for alleged violations of the IGP or CGP. A citizen suit requires notifying the alleged violator at least 60 days prior to filing. During this 60-day period, the alleged violator may negotiate a settlement with the petitioner, come into compliance, or assert a defense. For example, a violator may already be subject to an enforcement action from the State Water Board, in which case there may be a diligent prosecution defense. 

Need to Know More? Schedule a Call with an Experienced California Water Lawyer Today

If you receive a 60-day notice letter, or you would like to learn more about IGP or CGP coverage, or any other aspect of Clean Water Act compliance in California, we invite you to contact us. To schedule a call with an experienced California water lawyer at Bick Law LLP, call 949-432-3500 today.