There is an increase in the number of third-party lawsuits targeting facilities operating under the California Industrial General Permit (IGP) for storm water, including members of the California Trucking Association. This memorandum outlines a few of the more common allegations made against transportation facilities and provides suggestions to CTA members that might reduce the risk of these often frivolous but still costly lawsuits.
Transportation facilities that perform vehicle maintenance, including repairs, fueling and washing, are required to obtain IGP coverage through the State Water Board if the activity is conducted outdoors, is exposed to precipitation during storm events (i.e. outdoors and uncovered), and the rain water discharges from the property. Discharge can include flowing into a storm drain inlet or off the curb line to the city storm system. Facilities that contain all storm water onsite (i.e. in a retention pond) or conduct all industrial activities indoors or under a permanent canopy, are not required to apply for a full permit. Transportation facilities that operate without a permit are at a much higher risk for third-party lawsuits in addition to Water Board enforcement actions.
Since the new IGP was adopted in 2015, there have been over 400 lawsuits targeting California facilities. This number is rising and could increase even more with the upcoming permit changes in July 2020. These third-party groups are independent of the Regional Water Quality Control Boards (RWQCBs) and use authority granted under the Federal Clean Water Act to enforce the requirements of NPDES Permits through civil lawsuits. Third-party lawsuits could cost targeted facilities thousands to several hundreds of thousands of dollars to defend against, often depending on the nature of the allegations and time frames cited in these lawsuits.
The typical process of a third-party lawsuit begins with a facility receiving a 60-Day Notice of Violations and Intent to File Suit (60-Day Notice). This notice outlines the alleged storm water violations against the facility and is the formal notification to the facility that the third-party group is going to file a lawsuit in 60 days. If a facility receives a 60-Day Notice, they should seek legal counsel immediately and begin gathering necessary documentation for a response as soon as possible. Do not wait too long to respond to such notices.
Third-party groups are using information and documents uploaded to the Stormwater Multiple Application and Report Tracking System (SMARTS) Database as potential evidence against facilities. All information uploaded on SMARTS, including the facility’s Storm Water Pollution Prevention Plan (SWPPP), Annual Reports, and storm water sampling data are available to the public once they are uploaded. It is crucial that each facility’s Legally Responsible Person (LRP) is familiar with applicable facility stormwater program documents and data on SMARTS and confirms that the information available to the public is both current and accurate.
Some of the allegations we have noted commonly made against industrial facilities include, but are not limited to, the following:
| Allegations | Actions that Might Be Taken |
|
Operating without Industrial General Permit Coverage |
• Transportation facilities that perform vehicle maintenance, including repairs, fueling and washing, are required to apply for permit coverage if the activity is performed outdoors, is exposed to precipitation, and the storm water discharges from the property. This also includes maintenance performed by mobile vendors. |
| Failure to maintain a site-specific SWPPP and Site Map | • Update SWPPP and Site Map with facility modifications/changes; if they are reviewed, document when. If no changes are made, state “no changes needed”. |
| Failure to collect the required number of storm water discharge samples | • Document all rain events and if they were not a qualifying event, explain why. Include, when practical, photographs with date and time stamp. • Install a rain gauge at the facility; possibly connected to a data logger. • Inspect discharge locations during each rain event and prepare field notes with photographs to support your assessment. |
| Failure to perform monthly visual observations | • Conduct the observation EVERY month. If a monthly inspection was missed for extenuating circumstances, document that reason. • Document the observation when they occur – not just on the form; produce date-stamped photographs that support your findings. • Correct any non-conforming findings and document how and when those findings were corrected. |
| Failure to train on-site personnel on storm water program requirements | • Confirm all personnel who could affect storm water quality are aware of their respective obligations to ensure the facility can meet program elements. Include storm water prevention measures in your regular tail-gate meetings. • Document all such training and maintain records in the SWPPP binder. |
| Failure to implement effective Best Management Practices (BMPs) to reduce pollutant concentrations below permit Numerical Action Levels (NALs) | • Review laboratory results upon receipt and compare them to the NALs; graph the results and look for trends over time. • If NALs are exceeded – act. Review the results, identify the root cause reasonable actions to reduce those levels. |
| Failure to submit reports by their deadlines (Ad Hoc Reports & Annual Reports) | • Submit the required reports by or before the deadlines. If a deadline is missed, follow up quickly and document the follow up. |
The facility must meet the IGP requirements to significantly lower the chances of being sued by a third-party. Documentation that can counter some of the common allegations contained in these notices could prove important to fight these allegations, even baseless ones. Documentation could include photographic evidence (with time stamp), field inspection of the discharge locations and notes documenting the observations, and even going so far as setting up an on-site rain gauge, one which could be equipped with a data logger.
The CTA stormwater programs are designed to help transportation facilities develop and implement effective storm water pollution prevention programs at their facilities. We provide the necessary observation forms, SWPPP template, guidance documents, sampling kits, and SMARTS Database assistance to all member facilities. Facilities must be able to document that they are implementing a storm water pollution prevention program that conforms with the regulatory requirements.
If you have any questions or would like to enroll in the CTA Storm Water Program, please reach out to our storm water team at cta@nesglobal.net. We are here to help!