HOW AND WHY LOCAL MUNICIPALITIES’ STORMWATER PERMIT, TMDLs ANDENFORCEMENT WILL AFFECT SMALL BUSINESSES.
By John Reaves 2000
The winds of change are blowing into San Diego. A decade ago, few foresaw thatregulation of storm water runoff would precipitate such change. But, with the difficulty ofgovernment in attaining clean water goals, and the public’s impatience with closures ofcontaminated coastal waters, the incoming storm was inevitable. In truth, the more we learnabout the pollution of our waters, the more we understand the cause lies with all of us. Industrialdischargers of hazardous waste contribute a relatively small amount of the overall storm waterrunoff pollution. Although scientific support is lacking for precise measurements, theEnvironmental Protection Agency (EPA) estimates roughly 80% of the pollution in San DiegoBay is due to urban runoff. Most industries already have been subject to permit requirements forsome storm water control measures. Now residents and, particularly, small businesses are thetargets and should prepare to batten down the hatches.FROM POINT TO NONPOINT REGULATION.Historically, the EPA sought to control pollution of our waters by “point source” controlsin which the discharge from pipes is regulated by a National Pollution Discharge EliminationSystem (NPDES) permit. Hence, industrial operations bore the brunt of the country’s efforts toattain cleaner waters. While the EPA was content to implement its clean water goals bysqueezing industry, over time the returns shifted from dramatic to marginal, while cleaner waterremained elusive. Nonetheless, NPDES-permitted industries discharge large quantities ofhazardous wastes into the bay and remain significant players in shaping the storm water runoffdebate.Because the EPA initially ignored storm water issues, environmental organizations suedthe EPA. The result: in the mid-1980s, a court ordered the EPA to implement a dormant sectionof the federal Clean Water Act. Now, where point source controls have failed, the EPA musttake a “water-quality” approach, so as to protect “impaired” waters (those listed under section303(d) of the Federal Clean Water Act) from a continuing overload of pollutants fromuncontrolled areas, or “nonpoint sources”, in the watershed. Nonpoint storm water runoff fromthe watershed funnels right into bays, oceans and other waters through the storm water drainagesystem.Contrary to the belief of some, storm water is not directed to a sewage treatment plant.There is, however, an attempt underway in San Diego to reroute some runoff during the dryseason to the sewer due to high bacterial levels. During rains, however, there is no way tohandle the sheer volume of runoff, so it all goes to the rivers, bays and ocean.To try to gain control of such runoff, EPA, through the state, began regulating stormwater outlets as if they were point sources. As a result, since 1990, many industries and largergrading activities, along with municipalities which own the storm drains, have been required tosecure storm water permits or otherwise comply with storm water regulations as part of theirNPDES permits. To comply with these state and federal laws, many municipalities enactedordinances in the early 1990s banning the discharge of anything but rainwater into the stormdrain system. That meant little to smaller businesses until now.TOTAL MAXIMUM DAILY LOADS—TMDLs.Significantly, the EPA is also now requiring states to enact “Total Maximum DailyLoad”, or TMDL, limitations on pollutants entering impaired water bodies. Therefore, stormwater and NPDES permits will now be limited by TMDLs as they are enacted. Virtually everyU.S. water body will be subjected to TMDL regulations. There are over 500 impaired waterbodies in California, and formulation of several TMDLs for San Diego alone is expected to takeabout 10-15 years.The EPA is forcing implementation of TMDLs by underfunded delegation to the states(or will take over the process itself). Local agencies, such as the Regional Water Quality ControlBoard (RWQCB), design and implement the TMDLs through the permitting process. TheRWQCBs must prioritize the most impaired waters. The RWQCB must then show how apollutant impairs a water body, a daunting task with today’s limited understanding of suchcomplex systems. The lack of funding to consolidate and interpret reams of existing, oftendiscordant data, and the rigorous time frame in which to develop TMDLs, greatly complicate theeffort. The RWQCB must then make an educated guess as to how much pollution an impairedwater body can assimilate. Determining the proper level for a TMDL requires adding all pointand nonpoint source waste loads, plus a margin of safety.TMDLs—COMING SOON TO SAN DIEGO.Chollas Creek, which leads into San Diego Bay, and Rainbow Creek in North County,will be the first focus of our RWQCB for the TMDLs. DIAZINON, a commonly used pesticideidentified as adversely impacting Chollas Creek and San Diego Bay, will receive the firstTMDL. Additional TMDLs will be added over time as the RWQCB evaluates other pollutantoverloads, such as copper, lead, cadmium and zinc, in Chollas Creek. The RWQCB must submitthe first TMDL for Chollas Creek to the EPA by April, 2000. Nutrient overload will be the focusof the TMDL for Rainbow Creek.TMDLs will automatically limit all existing NPDES or storm water permits, includingthe County, Port District and each municipality in the County—as joint permittees—for theircollective NPDES permit (over 200 storm drain outlets enter San Diego Bay alone).THE EFFECT OF TMDLs ON ALL OF US.Business and lifestyles will be altered in San Diego. They have to change. Why?Because in order for the municipal co-permittees of the NPDES permit to lawfully comply withtheir permit, and not be fined by the RWQCB or EPA, or sued by others, they must enforceTMDLs on everyone in their jurisdiction—including you and me—since all our wastes godown storm drains. Think only others must be responsible for pollutants going down our stormdrains? WRONG! We all contribute pollution into our storm drains. Home products such aspesticides, herbicides and fertilizers wash into storm drains through excessive irrigation and, ofcourse, rain. Diazinon is a serious problem in San Diego Bay, thanks to our lack ofunderstanding that poisons applied at home and work frequently spill over the curb to the stormdrain and into the water. Also, many people assume others—often businesses—must havecaused most or all of the pollution.To further illustrate the problem, according to the San Diego Union-Tribune, the EPA hasestimated each person on average spills more than a quart of petroleum product per year whichcan wind its way into our waters. The EPA says oil can hurt fish eggs and larvae, add todeformities in fry, and decrease adult survival.Moreover, think those cars we drive—especially the gas guzzling sports utility vehicles—contribute to the problem? Substantially. Petrochemicals from car exhaust settle back to theground and are carried to the storm drain. Mix in copper from brakes, improperly disposed oilchanges, oil and grease from restaurants and lead from old paint and you have a toxic stew. Allof this will begin to change over the next decade.THE IMPACT OF “BEST MANAGEMENT PRACTICES.”How will municipalities force us to stop passive or active discharge of pollution into thestorm drains? They (as well as industry and certain grading activities already required to securestorm water permits) must implement “best management practices” to prevent everything butrain water from washing off their properties, construction sites, etc., into storm drains. As astorm water permit condition, the State has required municipalities to implement ordinancesrequiring them and citizens in their jurisdiction to implement “best management practices” tocontrol runoff. Each business will need to decide how to implement its best managementpractices, which takes into consideration both cost and water quality benefit, and involves a siteandbusiness-specific inquiry.Citizens’ suits have been on the rise challenging what constitutes the “best” storm watermanagement. A prevailing party may recovery attorneys’ fees. If your business is given therequired 60-day notice of a group’s intent to sue (which must list alleged violations), quicklyassess how to implement or improve your practices and cure any deficiency. A suit cannotproceed unless a violation is ongoing.FIRST, INDUSTRY AND MOST GRADING SITES—NOW EVERYONE ELSE.While most industrial operations and grading at construction sites over 5 acres arealready subject to permit requirements, San Diego businesses and individuals are generallyunaware that since 1993 they, too, have been subject to best management practices requirementsby municipal ordinance, as required by the state.The new driving force is that our local co-permittees will instantly be unable to complywith TMDL limitations when they are issued. Therefore, the days of only educating the public,or targeting the most egregious infractor, are over. We can now expect greater enforcement ofexisting ordinances. We will see greater use of existing laws and increased fines, much like atraffic fine, to get your attention, which in turn may capture the attention of your neighbors, ifnot the media. How about shutting down recalcitrant businesses which ignore Notices ofViolation? Civil and criminal prosecutions may be the tool of the future. Municipalities willnow have to target businesses and individuals more aggressively to comply with bestmanagement practices or risk consequences.TYPES OF SMALL BUSINESSES MOST LIKELY TARGETED AND WHAT THEYCAN DO TO IMPROVE THEIR LEGAL EXPOSURE.Let’s take a brief look at the types of businesses likely to first appear on the radar screen.First, those businesses which already are subject to county permits for food establishments andhazardous wastes will be inspected by the county for storm water issues. Other businesses whichare less accustomed to regulation may be in for a surprise. Here is a list of small businesseswhich can anticipate storm water enforcement and some practical tips toward compliance:1) Restaurants: stop washing outside and/or disposing of wastewater outside; dispose to sewer(may require grease trap).2) Painters, contractors, concrete layers and cutters: stop allowing discharge from powerwashing from entering storm drain; stop washing equipment, painting utensils along the curb andinto the drain; collect wastewater; avoid loss of paint chips, particularly those containing lead.3) Businesses with loading stations: block storm drains located next to loading ramps to preventoils and other materials, including emergency releases of hazardous materials, from entering;improve location and storage of chemicals.4) Auto detailers: when washing cars, prevent all waste water from going offsite; use portableberms and vacuum up or evaporate water.5) Gas stations: do not hose spills off pavement; use an absorbent.6) Fabricators and welders: sweep up sawdust and metal shavings.6) Businesses with vehicles: prevent employees from changing oil and discarding contentsimproperly, washing cars onsite, or allowing oil leaks; promote car washes that recycle water.7) Businesses with dumpsters: use waterproof dumpsters with lids.8) Parking lots: absorb leaking oil (Municipal Code already requires property owners to cleantheir lots regularly and to absorb oil leaks).9) Printers: avoid dumping ink and other materials in alleys and parking lots.10) Pool companies: avoid dumping filter material or hydrochloric acid (used for acid washes)into the street.11) Pesticide use: change to nontoxic or less toxic pesticides and other poisons on your property.Chemicals such as diazinon degrade when exposed to the sun. Once irrigation or rain washesdiazinon away, however, it dissolves easily in water and is difficult to degrade—thus longlastingas a toxin in the water body.12) Landscaping: reduce overfertilization of landscaping and overirrigation; do not apply beforerain; do not apply on hard surfaces; prevent dirt from leaving property during rain byrevegetating land or using other methods to stop siltation from entering the storm drain; dirt inwater blocks sunlight from killing bacteria in the water and contributes to beach closures.13) Animal wastes: clean up wastes which may contain harmful bacteria from your premises.14) Farmers: previously unregulated for runoff, expect municipalities to seek ways to controlpesticide, nutrient and silt from entering storm drains.Municipalities will not tell you how to implement best management practices. Thatchoice is yours. In many cases, businesses can do it with improved maintenance, such as regularsweeping and employee education; some businesses will require structural controls or modifiedlandscaping so as to divert or capture runoff in a drainage basin. Failure to select a bona fide“best” practice exposes you to infractions by the municipalities or possibly a citizens’ grouplawsuit. Most importantly, taking measures to stop pollution of the storm water will help ourenvironment, protect our children who contact or drink storm water in our bays and ocean, andsave us all money in the long run. The restoration of healthy water depends on our efforts.THINK BLUE.Now is the time to plan ways to help the environment and reduce your legal exposure.Consider the environmental and marketing benefits derived from participating in the “THINKBLUE” program created by the City and partnered by the County and Port of San Diego,CalTrans, Channel 10 and San Diego Chamber of Commerce, among others. Join THINKBLUE and display a decal at your business. Consider what your business can do to reduce theuse of toxins and reduce or stop runoff from entering storm drains and let others know how theymight help, too.There are also nontoxic alternatives or methods to reduce the amount of toxins we useand release into the environment. The storm water and TMDL issues present us the opportunityto establish new patterns of behavior on a broad level which can greatly enhance the quality oflife, appropriate for a new millennium.If you think the problem remains with everyone else, are you prepared to weather thestorm?