Kentucky Division of Water Issues Final KPDES General Permit for Stormwater Discharges Associated with Industrial Activity
As reported in prior issues of the Environmental Letter, the Kentucky Division of Water (DOW) accepted informal and formal comments on several drafts of the General KPDES Permit for stormwater discharges associated with industrial activity (KYR000000). Those comments resulted in removal from an initial draft permit of first-time effluent limitations on stormwater discharges for total suspended solids (TSS) and oil and grease that would have uniformly applied, without regard to site-specific conditions, to the estimated 1,000 plus facilities in Kentucky that are expected to need coverage under the General Permit. The prior General KPDES Permit for stormwater discharges associated with industrial activity expired in 2007.
While DOW is to be commended for deleting the proposed numeric effluent limitations, the Draft KPDES Permit issued for formal public comment on March 1, 2013 still contained comprehensive first-time non-numeric requirements that dictate that facilities utilize numerous runoff control practices and oversight control procedures and maintain extensive records of those efforts. A number of industry organizations and individuals submitted comments on the March 1, 2013 Draft KPDES Permit.
On May 1, 2013, the Final KPDES Permit was issued with an effective date of June 1, 2013. For existing facilities that obtained coverage under the prior General Permit that expired in September 2007, an updated NOI must be submitted within 90 days of June 1, 2013. New facilities and existing facilities that commenced discharge after September 30, 2007 and need General Permit coverage, must submit an NOI within 15 days of June 1, 2013. It is unclear from the Permit when first time stormwater pollution prevention plans (SWPPPs) are to be prepared, but Section 4.4 of the Permit states that the permittee shall obtain compliance on the effective date of the Permit unless otherwise stated. DOW noted in the Response to Comments that compliance schedules are not available for new facilities, but facilities that had coverage under the prior permit would have six months to update their SWPPPs. It is unclear whether new facilities would include facilities that came into existence after September 2007.
A three-page Response to Comments was prepared by DOW, but the Response to Comments did not address many specific comments and changes requested by commenters. The General KPDES Permit creates significant new recordkeeping and compliance burdens and enforcement risks on the facilities that must obtain coverage. There is substantial risk that the non-numeric provisions of the Permit could be interpreted very stringently by inspectors and/or third parties, and it will be difficult for facilities to confirm that their best management practices (BMPs) satisfy the “minimize,” “to extent feasible,” and “where possible” standards contained in the Permit relating to non-numeric control requirements. Industries currently operating under individual KPDES Permits should also be concerned that the same non-numeric control and SWPPP requirements will be incorporated directly into individual KPDES Permits upon renewal.
Set forth below are several key components of the new General KPDES Permit.
- Monitoring must be conducted twice per year for TSS, oil and grease, pH, and flow on all point source discharges of stormwater associated with industrial activity.
- The most common control standards specified throughout the Permit require operators to “minimize”: pollutant discharges in stormwater; exposure of manufacturing and material storage areas; and the potential for leaks or spills. The term “minimize” is defined as “to reduce and/or eliminate to the extent achievable using control measures, including BMPs, that are technologically available and economically practicable and achievable in light of best industry practice.” While industry generally supported the economically practicable component of this definition, DOW did not clarify in response to comments that site-specific conditions are an important and appropriate consideration in evaluating a BMP despite it being considered a “best industry practice.”
- Facilities are required to keep exposed areas “clean and well maintained” and are to “minimize the generation of dust.” It is unclear how such a standard of “cleanliness” will be interpreted or enforced, and it appears DOW will now, in addition to the Division for Air Quality, be regulating the generation of fugitive dust emissions. In addition to runoff, facilities are to reduce stormwater “run-on” to the facility to minimize the discharge of pollutants in stormwater. The Permit provides that “structural and non-structural control measures such as velocity dissipaters, diversion, infiltration, reuse, and/or containment, shall be used to reduce the discharge of pollutants.”
- Employee training is required for all employees that work in areas where industrial materials are exposed to stormwater.
- The SWPPP must include detailed information on all activities undertaken at the facility and extensive information regarding industrial activities exposed to stormwater and each pollutant associated with such activities. SWPPP requirements include, among others:
- Schedules for “regular” pick-up and disposal of waste and “regular inspections, testing, maintenance, and repair of all industrial equipment and systems and control measures to avoid situations that may result in leaks.”
- A “daily precipitation log.” In its Response to Comments on this requirement, DOW explained the purpose of the log is to correlate the occurrence of discharges with precipitation events. It is specifically defined as a daily record of precipitation levels maintained by the permittee to provide proof that a “qualifying event has occurred within the preceding 24-hours.” It need not be based on on-site rain gauges, but it nevertheless seems to require a record of each day on which precipitation occurred at the facility with an estimate of the amount.
- With respect to inspections, which are to be conducted “regularly” as well as after a two-year 24-hour event, an inspection report must be prepared that addresses control measure maintenance and repair needs, and any corrective actions required as a result of the inspection. Corrective action is required for every BMP that is not being properly operated and/or maintained, and an initial corrective action report must be prepared as soon as practicable after the discovery of a condition requiring corrective action, and a follow-up comprehensive corrective action report must also be prepared. SWPPP modifications are to be made “whenever necessary” to address corrective action that has been taken.
- DOW has not clarified in response to comments whether the contents of an SWPPP are considered enforceable permit conditions. The Permit requires the SWPPP to be “implemented,” which at a minimum likely requires all controls and practices identified in the SWPPP to be in place and actively managed.
- Section 4.2 of the Permit applies to new or expanded discharges of stormwater “to waters of the Commonwealth.” Even though this section is reportedly included to comply with antidegradation requirements of 401 KAR 10:030, it is not limited on the face of the Permit to high quality or exceptional waters. Accordingly, the new or expanded discharge requirements may be read to apply to all new or expanded discharges even though the intent appears to be to limit the section to high quality and exceptional waters. The “enhanced” non-numeric effluent limitations for new or expanded discharges are stringent. The “example” acceptable control measures include vegetative buffers, control measures for all storm events up to and including the two-year 24-hour event, cleaning and repair of BMPs within 24-hours of discovery, and a requirement to, where “possible,” “determine the level of risk of leaks, spills, and other releases for all primary ancillary activities at the facility and development of procedures and preventative measures that result in the greatest reduction or elimination of the risk.” These standards are less than clear on their face, but could be construed very stringently.
Unfortunately many of the specific comments raised by industry were not addressed or responded to by DOW in the Final Permit. Note that unless a challenge to the Permit is filed with the Office of Administrative Hearings by May 31, 2013, the Permit will be final and unappealable.
To view a complete PDF of the March/April 2013 issue of the Environmental Letter, click HERE.