Minnesota's New Stormwater General Permit For Discharge From Industrial Facilities

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Introduction

 

Congress has sought to protect and improve the nation’s navigable waters since passing the Federal Clean Water Act in 1972. The Clean Water Act (“CWA”) addresses water pollution by source. After dealing extensively—and rather successfully—with other sources of water pollution, amendments to the Clean Water Act, 33 U.S.C. § 1251, et seq., in 1987, required the U.S. Environmental Protection Agency (“EPA”) to develop regulations for stormwater discharges associated with eleven categories of industrial activity. Stormwater is runoff from natural precipitation and snow melt which may pick up contaminants that can degrade the quality of the water bodies the stormwater runs into. Stormwater regulations are part of the National Pollutant Discharge Elimination System (“NPDES”) permit program and the State Discharge System (“SDS”). In 1992, the EPA delegated stormwater permitting authority to the Minnesota Pollution Control Agency (“MPCA”).

 

The MPCA has taken the “divide and conquer” approach to the challenge of regulating stormwater impacts. The regulation of stormwater is divided into three separate programs: the Construction program, the Municipal Separate Storm Sewer System (“MS4”) program, and the Industrial program. The construction program regulates earth-moving construction activities that disturb one or more acres of land. The MS4 program regulates discharges from storm sewer systems that are physically separate from sanitary sewer systems. The industrial program regulates stormwater discharges from industrial sites. The first two programs have updated their respective permits in the last few years. Consequently, this analysis will focus on the draft Minnesota Stormwater General Permit for Industrial Activity which is currently under development by the MPCA with input from stakeholders, and how that permit may interact with ongoing Total Maximum Daily Load (“TMDL”) and impaired waters programs.

 

Background of Stormwater Regulation

 

Early efforts at controlling impacts on public waters focused on “point sources” such as industrial discharge pipes. Efforts to address such relatively straightforward sources of pollution have been generally successful.i Those efforts have not, however, proven sufficient to bring the quality of Minnesota’s water bodies to the level desired. Despite its significant influence on water quality, stormwater has thus far remained relatively unregulated due primarily to the difficulty of dealing with the issue.

 

The inherent difficulties, political, technical and otherwise, of regulating stormwater do not change because of this need. A significant portion of stormwater’s difficulty comes from its non-adherence to anthropocentric processes and goals. In other words, it is nature’s wild card that must be accounted for in any human system of water pollution control that has a chance to succeed. Therefore, stormwater regulations should be seen in the context of—and as they interrelate with—other water quality rules, especially impaired waters and Total Maximum Daily Loads (“TMDLs”) for water discharges. TMDLs have been conceived as just what the acronym stands for: total maximum daily load (of a pollutant) that a specific water body can handle without additional impairment. Stormwater regulation interrelates and interacts with TMDLs and the impaired waters program as a total, if not comprehensive, regulatory scheme to address current water issues with the intent of improving the same. Lurking behind this and other regulatory efforts is the on-going difficulty of establishing TMDLs and otherwise acquiring the vast amount of data required to support successful water quality decision-making, not to mention political matters that interfere with the process as a whole. The recent posting of a new federal regulation for stormwaterii means that Minnesota must either regulate to that standard with reasonable success or be superseded by the Federal Government.

 

For example, an Issue Paper (#7) published in September 2008 by the MPCA addresses baseline conditions used in the assessment of impacts of stormwater on receiving waters of the State. MPCA is constrained in its analysis by the federal three-tiered framework. Tier 1 protects existing uses, creating the additional requirement of discovering those uses of water bodies on top of scientific requirements. Designated uses are desired uses of a water body, which may or may not overlap with existing uses. Certain such uses, for example warm water fisheries, may require regulation of even unpolluted discharges, such as sediment. This causes anti-pollution regulations to morph into habitat preservation or even recreation regulations. As the Issue Paper points out, there is often no data available on the quality of a water body with which to set these standards. This is especially troublesome with regard to stormwater. Stormwater, as mentioned, is natural precipitation. As such, it is inherently beyond human control, but can be affected by human activities, as in acid rain.

 

The original Minnesota Stormwater General Permit for Industrial Activity (MSGP) was issued in 1997 and expired in 2002. However, the MPCA has issued guidance under the authority of Minn. R. 7001.0160 that the old permit should be followed until a new permit is issued. The target for approval of the new permit is summer 2009, though it will likely be implemented in phases. The expired General Stormwater Permit for Industrial Activity allowed the discharge of stormwater from industrial sites covered by the permit. It prohibited non-stormwater discharges to any storm sewer (e.g. curb and gutter, road ditch), including process wastewater, cooling water, boiler blowdown, wash water, rinse water, or any other non-stormwater. The shortcoming of this approach is that it allows industry to use precipitation to do passively what TMDL and other regulations prohibit them from doing actively: washing pollutants into the waters of Minnesota.

 

The primary requirements of the old permit were:

 

1. Develop and implement a Stormwater Pollution Prevention Plan (“SWPPP”);

2. Develop and implement a Spill Prevention, Control and Countermeasures Plan (“SPCC”); and

3. Report discharges and implementation of those plans to MPCA annually.

Key factors that lead to the issuance of the new General Permit were the increased scope under EPA’s Phase II rules and the complexity of the relevant issues. To assist, MPCA has divided stormwater rulemaking into three phases: (1) rules to establish the NPDES permit requirements needed to administer the Phase II Stormwater Program (Stormwater Permit Rule), (2) amendments to Minnesota Rules Chapter 7050 to address how Outstanding Resource Value Waters and non-degradation requirements in state water rules relate to stormwater permits, (3) rules to address the remaining Phase II program requirements such as the federal waiver provision for small MS4’s/rules to establish performance standards and criteria for managing stormwater discharges.

 

With all of the potential sources of pollutant discharge in stormwater, it is important to have a basic understanding of how the various regulations in Minnesota affect run-off from facilities.

 

Interaction and Interrelation of the Minnesota Stormwater, Impaired Waters, Non-Degradation and Total Maximum Daily Load Programs

 

The Clean Water Act, Section 303(d) requires all states to submit lists of surface waters that do not meet applicable water quality standards. These waters are classified in Minnesota and other states as impaired waters. Section 303(d) goes on to require that each state implement some type of technology or practice-based effluent limitations through the use of BMPs, as described herein below, and to establish TMDLs for contaminants of concern that are causing these waters to be impaired. 

 

The TMDL program at both the Federal and State level is one of the major regulatory frameworks that the EPA has chosen for attempting to restore watersheds in the U.S., and it influences the choices that each facility owner has when creating and implementing a stormwater management system for the facility.  All watersheds with TMDLs are subject to stormwater discharge limits for the pollutant(s) of concern.  As stormwater leaves a site through some type of conveyance (including sheet flow and infiltration ponds), it becomes subject to regulation and is then classified as a point source discharge under Section 303(d) of the Clean Water Act and also subject to limitations, monitoring and potentially pre-treatment standards.

 

Generally, a TMDL for a particular water body and pollutant is determined as follows:

• Every water body within a state is classified into a specific use class.  A specific set of criteria is determined by the state for each use class based on historical data, social factors, and economic influences. 

• The water body is tested to see if it meets all criteria for its particular class.  If not, it becomes listed as an impaired water.

• All waters designated as impaired are potentially subject to a TMDL.

• Research and tests are conducted to determine the daily maximum pollutant load that the water body can tolerate without breaching its designated use criteria.

Once a TMDL is established for a particular water body, the regulated party must submit a permit application to be covered under the MSGP.

Regulation of stormwater is complicated. From interaction with the Federal Clean Water Act to local implementation of benchmarks as described herein, the goal of pollution reduction in surface water remains the same. The MSGP is the beginning of a new level of regulation that will eventually become the standard for both the MS4 and Construction Program and finally allow for mass balance and TMDL calculations of contaminant input to surface water bodies from stormwater run-off. The specifics of this permit indicate significant changes in future stormwater regulations.

Key Provisions of The New Minnesota Stormwater General Permit for Industrial Activities

The new MSGP was developed with the input of stakeholders to the process for the purpose of covering as many facilities as possible, but with the flexibility to allow individual facility operators to utilize the individual site permitting provisions of the CWA 303(d). The MSGP will likely cover the majority of facilities that are subject to regulation, so long as these facilities meet the permitting requirements.

 

Who Needs a Permit and How does One Get It?

 

Minnesota stormwater control regulations require both private and public operators of most types of industrial sites that utilize outdoor storage of raw materials, products, or transportation equipment, to either obtain an individual NPDES stormwater permit, apply to be covered under a general permit, or certify a condition of no exposure for stormwater discharges. The list of industrial activities that are subject to regulation is lengthy and comprehensive, encompassing most forms of industrial activity. To understand the scope of the industrial stormwater permit, consider that the MPCA has compiled a list of over 19,000 Minnesota businesses that will be affected by the new regulations.

 

A small summary of industrial activities regulated includes:

 

• Ready Mix Operations

• Aggregate Industries

• Salvage Metals Industries

• Auto Recyclers

• Power Generating Companies

• Mining

• Petroleum Refining

• Manufacturing

• Transportation Companies (Ground and Air)

• Lumber Yards

• Outdoor Materials or Finished Product

• Government agencies (MNDOT, MAC)

• Cities that receive industrial stormwater

For those facilities whose particular industrial activity type is not expressly listed, two general categories describe covered discharges:

 

1. Stormwater discharges associated with industrial activity as defined in 40 CFR § 122.26(b)(14)(i)-(xi), except (x), and summarized in Appendix B of the draft permit, which includes ten categories of industrial activity required to obtain a permit for industrial stormwater discharges and a list of related SIC codes organized by sectors of industrial activity required to have an NPDES/SDS permit.

2. Discharges not required to obtain NPDES/SDS permit authorization, but which are co-mingled with stormwater discharges authorized under the permit.

The following are not considered stormwater discharges requiring a permit pursuant to the new draft permit:

 

a. Discharges from practice fire-fighting activities;

b. Fire hydrant and fire suppression system flushings, provided that the flush waters are not treated with chemicals other than chlorine;

c. Potable water line flushings;

d. Uncontaminated air conditioning or compressor condensate;

e. Landscape watering provided all pesticides, herbicides, and fertilizers have been applied in accordance with manufacturer’s instructions;

f. Pavement wash waters where no detergents are used and no spills or leaks of potential pollutants such as fertilizers, salts, or toxic and hazardous materials have occurred unless all spilled material has been removed;

g. Routine external building washdown that does not use detergents, solvents or degreasers;

h. Uncontaminated groundwater or spring water;

i. Foundation or footing drains where flows are not contaminated;

j. Incidental windblown mist from cooling towers that collects on rooftops or adjacent portions of the facility, but not intentional discharges from the cooling tower (e.g., “piped” cooling tower blowdown or drains).

 

However, even where no discharge qualifies as stormwater for purposes of the permit, erosion and sediment control BMPs must still be utilized “where necessary.”iii

 

New Facilities (and existing unpermitted facilities) must apply for a current Industrial Stormwater Permit using the application form and instructions. Facilities which were previously covered under the current expired Minnesota stormwater general permit for industrial facilities must also apply for coverage under the new permit once finalized.iv

 

Industrial site operators who choose to seek coverage under the MSGP are required to do three things: (1) develop a Stormwater Pollution Prevention Plan (“SWPPP”), (2) conduct monitoring of stormwater discharge from the site, and (3) compare the results of the monitoring against benchmarks set by MPCA and the Minnesota Department of Health (“MDH”) to evaluate and improve Best Management Practices (“BMPs”).

 

However, a useful alternative exists to coverage under the MSGP for facilities that have an opportunity to make changes to current operational practices. With some adjustment to operational practices it may be possible for a facility to certify that its activities do not expose stormwater to contact with materials that will contribute to stormwater impacts.

 

No Exposure Exclusion

 

Possibly one of the most powerful and useful provisions of the new MSGP is a provision that allows some facilities which are subject to permitting to opt out of permitting requirements under a no exposure exclusion for a portion of, or even the entire facility. Owners must apply for this exclusion to the MPCA and certify that all industrial materials and activities are entirely sheltered from stormwater and runoff. An operator seeking to qualify for the exclusion must:

 

• Submit written certification that the facility meets the definition of “no exposure” to the MPCA once every 5 years.

• Submit a copy, upon request, of the certification to the municipality in which the facility is located.

• Allow the MPCA and, if discharging into an MS4, the operator of the system, to inspect the facility and make such inspection reports publicly available upon request.

Many efforts to achieve no exposure can employ simple good housekeeping and contaminant cleanup activities such as moving materials and activities into existing buildings or structures. In some cases industrial operators may make major changes at a site to achieve no exposure, such as constructing new buildings/shelters or constructing structures to prevent run-on.

 

The MPCA may still choose to regulate operators who certify that their facilities qualify for the conditional no exposure exclusion, based on a determination that stormwater discharges are likely to have an adverse impact on water quality.

 

However, significant changes undertaken to achieve no exposure can increase the

impervious area of the site. This occurs when a building or pavement is placed in a formerly vegetated area. An increase in impervious area often leads to an increase in the volume and velocity of runoff, which, in turn, can result in a higher concentration of pollutants in the discharge, since fewer pollutants are naturally filtered out.v

 

For facilities which cannot certify no exposure, there are several key elements to the permitting process that must be followed.

 

Stormwater Pollution Prevention Plans (“SWPPs”): Key Component of MSGP Compliance

 

Operators of industrial facilities subject to permitting are responsible for developing an SWPPP for their site as part of complying with the MSGP. The SWPPP must be tailored to site-specific conditions and designed with the goal of eliminating or minimizing stormwater contact with potential pollutants through the use of BMPs.

 

BMPs include a wide variety of practices, techniques, and measures that prevent or reduce contaminant contact with stormwater run-off from nonpoint sources by using the most effective and practicable means of achieving water quality goals. Best management practices can include, but are not limited to structural and nonstructural controls (such as storage location and covering storage areas) and operation and maintenance procedures (including house-keeping, sweeping of paved areas and common-sense type measures). Suggested BMPs are available for many industry types and types of activities.

 

In order fulfill the requirements described in the latest draft of the new MSGP, a SWPPP must contain the following elements:

 

1. Complete drainage map of the facility.

2. Complete inventory of exposed significant materials.

3. Evaluation of facility for exposure of significant materials to stormwater.

4. Describe appropriate BMPs.

5. Evaluate all discharge conveyances from the site to determine if liquids other than storm-water are being discharged from these conveyances.

6. Develop a preventative maintenance plan.

7. Develop a spill prevention and response procedure.

8. Develop and implement an employee training program to inform appropriate personnel of the components and goals of the SWPPP.

9. Identify personnel responsible for managing and implementing the SWPPP as well as those responsible for the reporting requirements of the permit.

Benchmark Monitoring

 

The most significant change from the previous Minnesota General Permit is the requirement for stormwater monitoring, sampling and analysis. Regulatory agencies have determined that rather than imposing site specific limits at this time, a series of benchmark monitoring requirements will be used. The benchmarks are not necessarily a compliance limit, but instead provide a regulatory threshold for further analysis. If a permittee cannot meet the benchmarks for various parameters described in the MSGP, it will be subject to additional monitoring and potentially required to obtain a site specific NPDES permit and provide pre-treatment for discharge of stormwater.

 

The new MSGP requires site owners to obtain samples of stormwater run-off on a quarterly basis analyze the contents, and record the findings. The current draft permit requires the holder to “collect and analyze samples from each discharge outfall.” The draft permit defines “industrial outfall” as “the point at which stormwater associated with industrial activity discharges to waters of the state or to a separate storm sewer not part of the facility.” Note that by this definition, the “outfall” may not be located on the facility. Samples may be collected by either grab or automated sampler.

 

No matter which method is used, there are specific guidelines governing when the samples may be taken. First, only samples following a storm event with at least 0.1 inches of precipitation may be used for benchmark monitoring purposes. Second, samples must be taken during the first 30 minutes of the storm event. The third and final requirement is that there must be a 72 hour interval between samples.

 

During the first year of the permit term, four samples must be collected and analyzed. At least three of the four first year samples must be collected between April 1 and December 1. If rainfall is inadequate, less than four samples may be used. However, other circumstances (for example inadequate staffing or preparation) may not be used as an excuse for collecting less than four samples. For permit holders, the first year is critical. If the benchmark requirements are met that year, subsequent monitoring obligations are minimized. If the benchmarks are exceeded, however, the permit holder will be subject to additional monitoring and must redesign its management practices until the benchmarks are met.

 

First Year Monitoring

 

If the average of the four sample values meets the benchmarks applicable to the site, the operator has proven to the MPCA that their SWPPP and BMPs are adequate. As a reward for meeting the benchmarks in the first year, monitoring requirements are thereafter reduced to one sample collection during the second and fourth year of the permit term. Permit holders who fail to meet benchmark values in year one must take another four samples during year two.

 

If the average of the four sample values exceeds benchmark values in the first year, the site operator is required to analyze their SWPPP and BMPs to determine why the benchmark values were not met. From that analysis, the permit holder must make all the necessary changes or upgrades to BMPs as required bringing the site into compliance with the applicable benchmark values. Such changes must be made as soon as possible, and in no case later than the end of the second permit year.

 

Second Year Monitoring:

 

Even after changes are made to BMPs, if the second year sample results exceed benchmark values, the permit holder is required to submit a report to the MPCA explaining why benchmark values have not been met.

 

Third Year Monitoring:

 

If benchmark parameters are met in the third year, then only one sample needs to be taken during the fourth year. However, if benchmark parameters are exceeded once again in the third year, then the permit holder must submit a series of reports to the MPCA. The MPCA will review the reports and investigate the site in order to determine whether an individual NPDES Permit will be required for the site.

 

Monitoring is likely the most onerous part of the new permit and the most significant difference between the new and old permitting scheme. Monitoring will likely be completed at most facilities by hired consultants and laboratories and lead to an increase in operating costs of the regulated facilities.

 

In addition to the monitoring, although not significantly different from the current permit, the current draft of the MSGP requires other provisions for compliance.

 

Spill Prevention Countermeasures and Control

 

Some facilities may already have a Spill Prevention, Control & Countermeasure (“SPCC”) plan. A SPCC addresses the proper use, handling, availability, and storage of materials and equipment needed to prevent or respond to a spill. The SWPPP should incorporate those parts of the SPCC and other management plans that are relevant to stormwater discharge from a site. Suggested BMPs are, again, available, and a certification program may be established for responsible personnel. The best countermeasure, of course, is to prevent contact between industrial uses and stormwater and qualification for the “no exposure” exception.

 

Annual Reporting

 

The MPCA will send a copy of the annual report form to facilities each year during the first week of January. Annual reports must be submitted to the MPCA no later than March 31 of each year. The facility’s first annual report will cover the time period from receipt of coverage through December 31 of the reporting year. Subsequent annual reports will cover the calendar year January 1 through December 31. The annual report must include:

 

• A brief summary of the SWPPP.

• List of any releases that occurred during the reporting period.

• Description of inspections.

• Description of implemented non-structural and structural BMPs.

 

While monitoring is the most notable change from the current permit that will affect current industrial facility owners, it is not the only issue. There are several provisions of the permit that remain unresolved with respect to enforcement and usability of the permit.

 

Unresolved Issues

 

The MSGP stakeholders’ task force in conjunction with the MPCA has been struggling for more than a year with many issues that have not been resolved or finalized on permit implementation. This situation is typical of a complicated system of regulation with respect to a general permitting strategy. There is no way to address every single situation at every facility regarding the myriad of possibilities for stormwater to come into contact with potential sources of impacts to surface water. Many of these situations result from the interaction of the Impaired Waters, TMDL and stormwater regulatory programs discussed above and not the permit process itself.

 

Below is a brief summary of the issues that will likely result in a need for new policy approaches, new technology, or new regulation of stormwater discharges.

 

• How to handle facility expansion or movement – If a facility changes its processes or location, it is not clear how permitting will be affected for new discharges and new potential contaminants.

• Will Waste Load Allocations (“WLA”) as determined in the TMDL program and applicable to the MSGP coverage for a particular facility be based on environmental requirements for technical feasibility?

• How should those limits be stated for permitting purposes (mandatory BMPs, total discharges, receiving water quality)?

• How should the MSGP be formatted to address pre/post TMDL issuance? – Do permit compliance requirements automatically update for facility operators as TMDLs are established for a particular water body receiving discharge from a facility.

• If challenged, what are the particular facts and information necessary to demonstrate “no exposure?”

• Can a facility be required to implement additional stormwater treatment if its discharge to an Impaired Water meets current Water Quality Discharge Standards?

• How will MPCA handle tribal requirements in the MSGP?

• Once a TMDL is established, should WLA be dictated for individual facilities or categorical by industry or area?

• Should effluent limits or dictated BMPs be used to meet TMDL requirements?

• Should TMDLs/and MSGP requirements dictate particular BMPs or should the permittee choose BMPs?

Schedule of Implementation or Completion

 

Shown below is figure presented by the MPCA as the most current schedule for implementation of the new MSGP.

 

Conclusion

 

At a minimum, once the MSGP is finalized, facility owners for listed SIC codes will have to either submit a permit application for coverage under the MSGP or qualify for the “no exposure” exception. If covered by the permit, owners will be required to sample and test stormwater runoff from their properties. At a minimum this will require investment in the sampling and analysis, which may require the hiring of a contractor. If the runoff exceeds or contributes with others to the exceedence of the benchmarks, owners must develop a SWPPP to describe and implement BMPs to reduce or eliminate contamination of runoff leaving their properties. This will likely require new infrastructure, equipment, or perhaps the reengineering of processes to prevent contamination or to eliminate the use of contaminants. To its credit, the system is set up to encourage owners to get it right the first time and minimize monitoring costs once benchmarks are met. Those unable to meet the benchmarks, however, may face applying for an NPDES permit. Bottom line: achieving required improvements in Minnesota’s water quality will cause changes in current operations of facilities covered by the permit and may cause increased expenses for many industrial facility operators and property owners.

 

 

By:

Daniel S. Schleck and John M. Bryant

 

For Additional information, see:

 

http://cfpub.epa.gov/npdes/

http://www.pca.state.mn.us/publications/wq-strm3-01.pdf

http://www.pca.state.mn.us/water/storm-water/storm-water-i.html#overview

http://www.pca.state.mn.us/water/storm-water/storm-water-i.html

Overview of Minnesota’s NPDES

General Storm-water Permit for Industrial Activity, Water Quality/Stormwater # 3.01, April 2003, Minnesota Pollution Control Agency.

http://www.pca.state.mn.us/water/storm-water/storm-water-i.html

http://www.pca.state.mn.us/publications/wq-strm3-01.pdf

Minn. Stat. §103F.711, Minnesota Clean Water Partnership Act