California s General Industrial Storm Water Permit And Citizen Litigation

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1 California s General Industrial Storm Water Permit And Citizen Litigation Sophia Belloli Counsel, Downey Brand LLP 455 Market Street Suite 1420 San Francisco Phone: 415/ sbelloli@downeybrand.com 1

2 Clean Water Act Citizen Suit Authority The Clean Water Act (33 U.S.C. 1365(a)(1)) allows citizens to step into the shoes of government regulators and file a lawsuit against any person who is alleged to be in violation of: An effluent standard or limitation under the Clean Water Act; or An order issued by the EPA or a State with respect to an effluent standard or limitation. California s Industrial General Storm Water Permit = An Order Issued by the EPA or a State. Industrial Storm Water Permit regulates discharges of storm water from industrial facilities throughout the state. 2

3 Industrial Storm Water Permit As A Source of Citizen Litigation This means that citizen groups can sue industrial businesses that are covered by Industrial Storm Water Permit. Over the last several years, the current Industrial Storm Water Permit has been a significant source of citizen litigation. 3

4 Why Industrial Storm Water Permit Is a Source of Citizen Litigation Notice of Intent to participate in existing General Industrial Storm Water Permit is public record. Annual Reports required to be filed with Regional Boards each year (demonstrating compliance with the Permit) are also public record. Any other correspondence with the Regional Boards relating to compliance with the Permit is public record. Citizen plaintiff groups have access to and review Annual Reports and other correspondence sent to the Regional Boards by permittees. 4

5 Why Industrial Storm Water Permit Is a Source of Citizen Litigation If records at the Regional Board indicate that a permittee is not complying with the Permit, citizen groups have targeted permittees in a lawsuit. Citizen groups have alleged that permittees: (1) did not implement effective BMPs to manage storm water discharges at their industrial facility, as evidenced by test results, (2) did not conduct the appropriate storm water tests at the appropriate times, or (3) failed to comply with other administrative reporting/paperwork requirements the Permit imposes. 5

6 Attorneys' Fees Are Added Motivation for Clean Water Act Citizen Suits Added incentive for citizen groups is recovering attorneys fees! 33 U.S.C 1365(d). This means that if plaintiff citizen groups prevail in litigation, they are entitled to recover the costs of their attorneys. Practically, in settlement of storm water citizen litigation, citizen groups also recover their attorneys' fees as part of the settlement (i.e. the permittee pays for citizen group's attorneys' fees). 6

7 Exposure to Citizen Suits Under New Industrial Storm Water Permit New General Industrial Permit (effective July 1, 2015) has more detailed requirements than current Permit. Therefore, potential for citizen suits exists. Caveat The new Permit has not gone into effect and no litigation has been filed alleging violations of its terms. The following provides an overview of areas that are important to consider. 7

8 Exposure to Citizen Suits Under New Industrial Storm Water Permit Key Dates July 1, 2015: New Permit Goes Into Effect; Must Register for Coverage If Discharge Industrial Storm Water to Waters of the United States. October 1, 2015: No Exposure Certification Documents Due (Certifying that Facility Has No Exposure of Industrial Activities or Materials to Storm Water). July 15, 2016: First Annual Report Due Under New Permit. 8

9 Exposure to Citizen Suits Under New Industrial Storm Water Permit Following Documents Must Be Uploaded Online: NOI/NEC SWPPP and Site Map Annual Reports Technical Level 1 and Level 2 ERA Reports Old Permit did not require this. Important Because: Easier for citizen groups to review. 9

10 Exposure to Citizen Suits Under New Industrial Storm Water Permit Engineering and Certification Requirements Certain Documents Require Signature by Licensed Professional Engineer: Example, NONA reports. Certain Documents Require Preparation by a QISP (Qualified Industrial Storm Water Practitioner): Example, Level 1 and 2 Technical Reports. 10

11 Exposure to Citizen Suits Under New Industrial Storm Water Permit SWPPP Filed Online Contains Detailed Information Industrial Materials Potential Pollutant Sources Assessment of Potential Pollutant Sources Minimum BMPs Monitoring Plan Annual Evaluation SWPPP Preparation Date and Amendments 11

12 Exposure to Citizen Suits Under New Industrial Storm Water Permit Technical Reports Required If Exceed Certain Levels of Pollutants In Storm Water, Specific Contents If Storm Water Samples Exceed NALs.... Prepare Report Update SWPPP Update BMPs Level 1 & Level 2 Status Sampling is tricky!! 12

13 Exposure to Citizen Suits Under New Industrial Storm Water Permit Effect of Exceeding NALs Permit Violation Argument Now Prepare Technical Reports 13

14 The Beginning of the Law Suit: 60-Day Notice Letter Statutory Requirement Under the Clean Water Act. 33 U.S.C. 1365(b). 60-Day Notice usually in the form of a letter. 60-Day Notice must tell your facility what they are doing wrong, and give the facility a chance to fix it before the case is filed. 60-Day Notice presents an opportunity to settle the dispute with the citizen group early, and save money on your attorneys fees. If you do not respond to the citizen group well before the 60 days elapse, the citizen group will file a complaint against you in federal court. 14

15 Litigating a Storm Water Case in Federal Court File Response to Complaint: Answer/Motion to Dismiss Discovery Facility Inspections During Dry and Rainy Weather Document Requests Interrogatories and Requests for Admissions Depositions of Knowledgeable People Motion(s) for Summary Judgment Expert Discovery Storm Water Consultants and Engineers These Cases Usually Do Not Make it to Trial! Expensive to litigate and take to trial, for both sides. 15

16 How to Limit Exposure to Storm Water Citizen Suits Understand and comply with the General Permit and CWA; hire an outside consultant. Train staff to understand and comply with General Permit obligations. Make sure your Regional Board file and other public records (i.e. with local municipalities, if required) show compliance with the General Permit and Clean Water Act. Work with your Regional Board if you have questions. Paper the Regional Board file. 16

17 If You Are Sued, Should You Settle or Litigate? Some Factors to Consider. Litigation is expensive and time consuming! Do you have exposure to liability? If so, it may be more cost effective to settle early. Statutory penalties for violations of the Clean Water Act range from $32,500 to $37,500 per day, per violation, depending on when the violation occurred. Five year statute of limitations. Can you afford the BMPs that the citizen group insists upon? Extensive technology or structural improvements to your facility may not be cost effective to implement, and it may be worthwhile to litigate for this reason alone. 17

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