Riding the Rising Tide of Storm Water Enforcement

Patrick J. Larkin
Strasburger & Price, L.L.P.

It is safe to suggest that every lawyer reading this article has one or more clients who will be the subject of a storm water inspection or enforcement action in the coming twelve months. Although the Clean Water Act has, since 1972, required that a National Pollution Discharge Elimination System (NPDES) or state-equivalent permit be obtained prior to any form of discharge into the navigable waters of the United States, EPA control over pollutants in storm water runoff remained virtually non-existent until 1990. Since then, the scope of storm water regulatory obligations and the resources applied to enforce these rules have grown dramatically. Through authorization of state NPDES programs and imposition of the Storm Water Management Programs (SWMP) on "Large" and "Medium" municipalities (see Storm Water Phase I Final Rule, 55 FR 47990 (Nov. 16, 1990)), the EPA has created a storm water permit program that involves literally thousands of federal, state and local 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. (See Final Reissuance of National Pollution Discharge Elimination System (NPDES) Storm Water Multi-Sector General Permit for Industrial Activities, 65 F.R. 64805, Table I (October 30, 2000). Cf. Texas Pollution Discharge Elimination System General Permit No. TXR50000 dated Aug. 20, 2001 (permit obligation for operator and property owner)).

The adequacy of the permittee's chosen site-specific controls are only reviewed in the context of enforcement inspections. Thus, as with most regulatory programs, the actual costs of compliance and the mechanisms to contain these costs must be evaluated with a holistic view of both initial compliance costs and costs relating to or arising from enforcement activity by the government. Enforcement costs are minimized by: (1) prevention of obvious or significant non-compliance, (2) calculated preparation for the inevitable storm water inspection, and (3) "deflection" of formal penalty actions by immediate response to compliance issues raised by inspectors and enforcement personnel.

The first step in minimizing storm water enforcement costs is to ensure, ideally through client education and auditing, that obvious and serious "core" violations are not present during inspections. (See EPA Region 6 Storm Water Training Presentations, published at http://www.epa.gov/earth1r6/6en/w/sw/home.htm.) If core violations are detected, the inspector will typically catalogue all deficiencies so as to "add weight" to the coming enforcement case. The following are some of the core components of storm water compliance, and include the objective components of a storm water program that each inspector will verify within the first minutes of an inspection:

3. Basic permit coverage, obtained by filing a Notice of Intent (NOI) with the EPA or applicable permitting authority.
4. Absolutely no discharge of process wastewater to storm drains, including, e.g., illicit connections from interior drains or from industrial processes conducted outdoors (vehicle washing, product handling or storage).
5. Onsite availability of a Storm Water Pollution Prevention Plan (SWPPP), including a site map, potential pollutant inventory and list of control measures (Best Management Practices, "BMPs") targeting each of the potential pollutants. The SWPPP is required to have numerous other components, but the absence of any of these three components will ensure follow up corrective or enforcement action.
6. Periodic site inspections to determine whether storm water runoff quality is affected by site activities and, thus, whether BMPs must be changed or improved to further reduce exposure of pollutants to storm water. State and federal storm water permits vary somewhat, but typically require quarterly self-inspections combined with a comprehensive annual review of BMPs and update of SWPPP documentation. These inspections must be documented ? in the eyes of the EPA, a site inspection that is not documented is a site inspection that did not occur.

The NPDES storm water permit program is designed to reduce pollutants through a somewhat subjective process of selecting, evaluating and upgrading BMPs. Accordingly, if the fundamental components of a storm water pollution control program are present, enforcement personnel will be less likely to dedicate resources 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.

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: First, as discussed above, ensure that the facility has eliminated "low hanging fruit" violations which lead the inspector to conclude that formal enforcement action will be required. Second, 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. Third, ensure that all observations, concerns or conclusions made by the inspector are also observed and documented by facility staff through close observation during the inspection and by thorough debriefing of the inspector in an "exit" conference. Fourth, do not challenge, intimidate or otherwise aggravate the inspector. Such activity may eliminate the opportunity for informal resolution of non-fundamental deficiencies. These considerations should be part of regular training for facility managers and other personnel who will greet and accompany inspectors.

Formal enforcement proceedings typically arise from either a single "core" violation (e.g., process discharge observed) or from an accumulation of small SWPPP deficiencies. 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 could convince the inspector and agency enforcement staff that formal enforcement is not necessary to deter future violations.

If the inspector identifies a significant violation or numerous small deficiencies, the effort to deflect formal enforcement must then focus on enforcement staff after formalization of the inspector's findings. This does not mean that facility staff should await delivery of a written Notice of Violation or other contact by the agency. Rather, it is at this early stage in the enforcement process that agency staff are most open to requests for pre-enforcement review of potential violations.

For example, the U.S. EPA Region 6 storm water enforcement program has instituted the practice of inviting facility staff to attend a "show cause" meeting to make the facility's best case for why formal enforcement is not appropriate. Because EPA and state storm water permits impose numerous, arcane paperwork obligations, the EPA is able to document and litigate violations with relative ease. Accordingly, it is nearly pointless to use these "show cause" meetings as a forum to debate the "weakness" of the government case. At this point, the goal of negotiations 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, demonstrable 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.

The EPA's roll out of state and local storm water programs means that each of you will in all likelihood have some interaction with the storm water enforcement process over the coming year. If your clients have not undertaken efforts to prevent violations, or if they fail to take the opportunity to deflect imminent formal enforcement, the relative costs of proactive compliance and preparation for inspections will quickly be surpassed, if not dwarfed, by the costs of responding to administrative or judicial process, litigation of liability and negotiation of civil penalties.