Stormwater Permits:

The Real Risks of Non-Compliance

By Ryan Janoch
The cost of non-compliance for your company and/or
your clients can be quite significant, up to $37,500 per
day in fines and millions in penalties. In addition, nonfilers open themselves up to potential litigation by
environmental organizations under the Clean Water Act.

contents
Inside

2
3
5

Introduction
A quick briefing on the July 1st, 2015 changes on industrial stormwater
permit law, and the consequences for non-compliance.

Permit background
A primer on the history of stormwater permits in California, and the
important dynamics of the Clean Water Act.

The Real risks to you

Why there is a real risk; an outline of the dierent ways that noncompliance can adversely impact your business.

Fines, Lawsuits, and other risks

How consequences are levied against industrial facilities and
engineering firms/consultancies.

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10
1

13

Where the risks turn into reality

An exploration of recent cases in California where risks turned into
reality, costing thousands and even millions of dollars.

the mapistry solution

Mapistrys unique solution saves time and money, making stormwater
permit compliance easier than ever for all facilities and engineers.

summary
The consequences for non-compliance are real and significant. Facilities
must take steps to file and update permits properly before July 1st.

introduction
On July 1, 2015, an estimated 100,000
industrial facilities in California will need to
be in compliance with a brand new
stormwater permit (the industrial general
permit or IGP). Previously, only about
10,000 industrial facilities had filed for
coverage under the old stormwater permit.
Even if a facility was covered under the old
industrial stormwater permit, they will still
need to file again for coverage under the
new permit. The estimated 90,000 facilities,
which included light industry, that are
filing for the first time were largely exempt
from the old stormwater permit. Now they
either have to file for full permit coverage
or they can file for an exemption based on
no exposure of industrial activities and/
or materials. Filing for permit coverage by
all the applicable facilities requires the
s u b m i s s i o n o f p e r m i t reg i s t ra t i o n
documents online via the California State
Water Resources Control Board (SWRCB)
website.1

The cost of non-compliance for your

company and/or your clients can be quite
significant, ranging from financial penalties
and fees to time spent on regulatory audits,
legal defense, and public relations. For
violations of the stormwater permit, the
SWRCB can issue fines of up to $37,500 per
d a y. I n a d d i t i o n , n o n - f i l e r s o p e n
themselves up to potential litigation by
environmental organizations under the
Clean Water Act (CWA).2 As an
environmental professional or facility
owner/manager, you should be aware of
the requirements of the new industrial
stormwater permit, the risks associated
with non-compliance, and the steps
necessary to obtain permit coverage and
remain in-compliance.

1. Online submittal of stormwater documents is done via the Stormwater Multiple Application and Report
Tracking System (SMARTS), which can be accessed at https://smarts.waterboards.ca.gov
2. http://www2.epa.gov/laws-regulations/summary-clean-water-act

the

background
of the stormwater permit

On April 1, 2014, the California SWRCB

adopted the new industrial stormwater
permit, which has the oicial title of the
National Pollutant Discharge Elimination
System (NPDES) General Permit for Storm
Water Discharges Associated with
Industrial Activities Order NPDES No.
CAS000001 (Order 2014-0057-DWQ). The
new permit replaced the old industrial
stormwater permit (Order 97-03-DWQ),
adopted on April 17, 1997, that industrial
facilities had been operating under
previously. Since 1997, there were five draft
permits issued by the SWRCB in 2005, 2011,
2012, 2013, and 2014 that were the genesis
of the permit finally adopted in April 2014.
The new industrial stormwater permit,
which is also known as the Industrial
General Permit or IGP, goes into eect on
July 1, 2015.
The current regulations governing
stormwater, the IGP, are based on water
quality regulations enacted in 1948 as the
Federal Water Pollution Control Act. The
United States Environmental Protection
A ge n c y ( US E PA ) d i d n o t ga i n
administration and enforcement powers

for water quality until 1972, when the CWA

was enacted by the United States
Congress. In 1972 the mandate of the CWA
was to reduce industrial (point-source)
discharges of pollutants into waterbodies
and the National Pollution Discharge
Elimination System (NPDES) was created.3
The NPDES permit program was created to
regulate large municipal stormwater sewer
discharges, industrial discharges, and
discharges into waterbodies that were
already impaired. The USEPA has primary
oversight of the water quality programs in
the United States, but as part of the CWA,
the USEPA has the authority to place
responsibility for regulating and enforcing
water quality on the states. Individual
states set water quality standards, which
are approved by the USEPA, enforce the
standards, and also issue NPDES permits.
California was one of the states granted the
authority, by the USEPA, to oversee its own
water quality program, which includes the
IGP.

3. http://www.epa.gov/region1/npdes/history.html

The new IGP covers nine categories of industrial

activities that total approximately 100,000
facilities, which are largely identifiable by
Standard Industrial Classification (SIC) code.
Facilities need to apply for permit coverage
under the IGP online via the SWRCBs
Stormwater Multiple Application and Report
Tracking System (SMARTS). As part of the
application process, a facility will need to file a
Notice of Intent (NOI), a site map, and a
Stormwater Pollution Prevention Plan (SWPPP)
online that will be publicly available. If a facility
is filing for an exemption online via SMARTS,
they will need to file a No Exposure Certification
(NEC) and also a site map. Facilities that are
operating under the IGP will need to develop a
comprehensive stormwater management
program that starts with filing the NOI, creating
the site maps, and developing the SWPPP. The
SWPPP is the basis for their stormwater
management program and compliance under
the IGP, including eliminating unauthorized nonstormwater discharges (NSWDs), identifying and
implementing Best Management Practices
(BMPs), conducting visual monitoring and
sampling, keeping records, and annual
reporting. Therefore, getting started under the
new IGP with a strong SWPPP is key to getting in
compliance now and staying in compliance
throughout the entire year.

the

Real risks
to you and your business

In the past couple of years, many facilities have settled with the SWRCB and environmental
organizations for thousands or even millions of dollars in penalties and legal fees due to
violations under the IGP. Overall, there will be increased scrutiny on facilities under this
new IGP, because significantly more information will be made available to the public. In
addition to submitting site maps and a facilitys SWPPP online for public access, sampling
results will need to be uploaded to SMARTS within 30 days of receipt and any major
updates to a facilitys SWPPP will require re-submission online also within 30 days.4
If these documents are not filed the SWRCB can issue fines of up to $37,500 per day. In
addition, non-filers open themselves up to potential litigation by environmental
organizations under the CWA. For example, it is costing one facility at least $7.5
million after they settled with the SWCRB. In addition, environmental lawsuits cost these
26 facilities millions of dollars, and these 3,000 facilities are currently facing litigation.

4. Other updates to the SWPPP will require re-submittal via SMARTS on a quarterly basis.

Fines
that threaten you

NOI Violations
IGP Violations
Conditional Exclusion Violations
Reporting Violations

NOI Violations

IGP Violations

Industrial facilities must submit their NOI, even if they

were covered under the 1997 IGP, by July 1, 2015 or
they will be subject to a penalty of $5,000 (California
Water Code Section 13399.33). In addition, facilities
that discharge industrial stormwater without coverage
under the IGP are subject to fines up to $10,000 per
day and $10 per gallon of stormwater discharged
(California Water Code Section 13385). In some cases,
the SWRCB or Regional Water Quality Control Board
(RWQCB) will refer violators to the California Attorney
General or County District Attorney for criminal
prosecution and/or civil liabilities.

For facilities that have coverage under the IGP, there

are significant financial penalties, which may be up to
$37,500 per day, for violations of the IGP (IGP page 73).
In addition, facilities that violate the IGP may be
subject to penalties under the CWA and under the
Porter-Cologne Water Quality Control Act, which may
have more significant penalties than the CWA.

conditional exclusion violations

The industrial facilities filing for an exemption from the
IGP via a No Exposure Certification (NEC) are required
to submit the required documents (site map and
certify the NEC checklist). Failure to follow the
conditional exclusion provisions in the IGP may result
in penalties per California Water Code Section 13385 or
13399.25 being issued by the SWRCB or RWQCB (IGP
page 13). The thousands of facilities previously exempt
from the stormwater permit that were considered
light industry now have to submit for coverage.

Reporting Violations
Per the CWA, a facilitys Legally Responsible Person
(LRP) knowingly making any false statements,
representations or certifications in their records, such
as inspection forms, or reporting, such as the annual
report, is subject to fines up to $10,000 and/or up to
two years of imprisonment (IGP page 73).

In addition to potential penalties from the SWRCB or RWQCB, industrial facilities also are
under the threat of lawsuits from citizen suits brought by environmental organizations.5
Citizen suits were authorized in the CWA (Section 505) as a way to enhance the USEPAs
and states enforcement actions.6 To bring a lawsuit under the CWA against an industrial
facility, a person or organization must have standing, which means they have or may be
adversely aected by the facilitys actions. Typically these lawsuits are brought by an
environmental organization, as opposed to just an individual with standing, and seek
injunctive relief (legal action to prohibit additional violations from continuing), civil
financial penalties, and/or reimbursement of legal costs and attorney's fees.
The process starts with the plainti (environmental organization with standing) sending a
60-day Notice of Intent to File Suit to the owner of an industrial facility. At the same time,
the plainti needs to also send the notice to the state regulatory agency, such as the
SWRCB and/or RWQCB, and the USEPA Administrator. The industrial facility then has 60
days after receiving the notice to come into compliance with the IGP. If the 60 day period
expires and the regulatory agency does not require the facility to comply with the IGP and
pursue civil or criminal enforcement action(s) against the industrial facility.
Often times the lawsuits are settled outside of court and include reimbursement of the
plaintis attorney fees and expert witness costs, installing additional stormwater control
measures, and financial contributions to other organizations for other environmental
projects or activities.7 Injunctions require compliance with the IGP and oversight by the
plainti, and submission of reports/plans. For example, the SWRCB examined 60
incidences where Notices of Intent to File Suit were sent between March 2009 and June
2010.8 They found that of the 42 cases they had information on, 18 were settled, 3 were
not pursued, and 21 were in settlement discussion or litigation as of June 2011. In
addition, during a fourth month period in 2014 (late July to late November), 57 Notice of
Intent to File Suit letters under the CWA were filed against industrial facilities.9 It is not
currently known how many of the 57 lawsuits have been settled and most likely many are
still active.

5. Many other federal regulations, such as the American with Disabilities Act, allow for citizens suits.
6. Sometime organizations will also sue regulatory agencies under the CWA for failure to enforce their own
environmental regulations. For example, the California Coastkeeper Alliance is pursuing litigation against
the SWRCB for the IGP. https://baykeeper.org/press_release/lawsuit-challenges-regulation-industrialpollution-san-francisco-bay-state-waters
7. Civil penalties would go to the federal government
8. http://www.waterboards.ca.gov/water_issues/programs/enforcement/docs/citizen_suits/
citizen_suit_report.pdf
9. http://www.candirm.com/blog/17313/

Some of the environmental organizations, especially the

ones that file multiple lawsuits, often have a campaign or
initiative that they publicly announce and pursue litigation
based on a specific thesis or targeted group of facilities. For
example, San Francisco Baykeeper, has a Bay-Safe Industry
Campaign10 that specifically is targeting the 1,300 industrial
facilities under the old IGP in the San Francisco Bay area
and have reached settlements with (more details below)
many of the facilities they targeted.11 Per the SWRCB report,
some environmental organizations enforcement actions
appear to have a standard set of deal terms to obtain
injunctions and financial considerations.

other

risks

to you

The risk to industrial facilities is not just financial due to the penalties, legal
fees, and expert witness fees involved with regulatory and environmental
enforcement actions and lawsuits, but also to their public image. Often times,
environmental organizations will specifically target well-known, large
companies as they have both the financial resources to pay and are more likely
to settle to protect their image. In some cases, the agreement between the
SWRCB and facility includes supplemental environmental projects (SEP) where
up to 50% of the penalty is used to fund other environmental projects.12

10. http://baykeeper.org/our-work/bay-safe-industry-campaign
11. http://baykeeper.org/articles/successful-legal-action-clean-industrial-runo-pollution
12. http://www.waterboards.ca.gov/rwqcb5/water_issues/enforcement/sep_policy_2009.pdf

Where the

risks
Reality

In some cases, the threat of legal turns

into reality as the SWRCB and
environmental organizations actively and
often aggressively pursue litigation
against industrial facilities. For one
limestone mine and cement plant in the San Francisco Bay area, the USEPA, Department of
Justice, and California Water Board pursued enforcement actions against them for violations
of the IGP between 2009 and 2014. The facility was ruled against during legal proceedings in
May 2015 and has agreed to pay $7.55 million in facility improvements and civil penalties.13

turn into

The facility was assessed civil penalties of $37,500 per day by the courts for violations of the
IGP between April 7, 2011 and May 1, 2014.14 These violations added up to a total penalty of
$2.55 million (68 days of penalties). In addition, the facility has to spend $5 million on
wastewater and stormwater treatment system improvements (advanced BMPs), which is an
expansion of the interim treatment system previously installed. The BMPs are being
implemented to treat stormwater coming from the facility containing sediment and metals.
It is not only the SWRCB that will bring legal action resulting in significant financial penalties
against facility, but also environmental organizations. In the San Francisco Bay area, the San
Francisco Baykeeper, an active environmental organization, has targeted industrial facilities
through a dedicated campaign.15 Between April 2012 and April 2015, they settled 26 cases they
pursued against industrial facilities in the San Francisco Bay area. Those cases included three
auto dismantlers, one quarry, four shipyard/boat repair facilities, one bulk marine terminal
(settlement of more than $1.4 million),16 five metal/coating manufacturers, eleven recycling/
waste facilities, and one concrete manufacturer. Settlements ranged from financial penalties
paid to other non-profits, such as the Rose Foundation17, for stormwater projects, payment of
plaintis legal and expert witness fees, and forced improvements to stormwater management
systems, requiring minimum expenditures. Plus in many cases continued monitoring and
oversight by Baykeeper was also required with the threat of further financial and legal costs, if
settlement conditions are not met.

13. http://www.estormwater.com/cement-plant-cut-toxic-discharges-san-francisco-bay?
eid=286117936&bid=1066308
14. http://www.justice.gov/sites/default/files/enrd/pages/attachments/2015/04/30/lehigh_complaint.pdf
15. http://baykeeper.org/articles/successful-legal-action-clean-industrial-runo-pollution
16. https://baykeeper.org/blog/major-bulk-shipping-terminal-agrees-stop-toxic-contamination-bay
17. $45,000 paid to the Rose Foundation http://baykeeper.org/blog/union-city-pipe-factory-agrees-protect-baytoxic-runo

mapistry as your

solution
To avoid the financial costs, time drain, and public relations damage associated with
a regulatory enforcement action or environmental lawsuit, a facility must be in
compliance with the new IGP today. The SWRCB has produced a helpful guide for
facilities to use to get started. If you are currently covered under the 1997 IGP, you
will still need to recertify your NOI and update your site map and SWPPP. If you have
not previously had coverage under the IGP, you will need to submit your NOI to the
SWRCB along with a site map and SWPPP.
Mapistry provides site map tools with pre-loaded layers and maps plus a built-in
guide to meet the new IGP site map requirements. Mapistrys SWPPP builder oers
you through a series of questions, in less than an hour, to automatically generate a
30+ page SWPPP. Mapistrys stormwater experts can help you through the entire site
map and SWPPP development process, and answer your questions along the way.
The new IGP has a number of new sampling, inspection, and BMP requirements that
facilities need to be aware of prior to the July 1st deadline. Mapistry's free webinars
on the new permit are a great way to get started! When updating your SWPPP and
site maps, begin by doing a site inspection of the facility to identify industrial
activities, materials storage areas, BMPs, and discharge locations. You can use
Mapistry on a tablet to GPS locations of BMPs and discharge locations right on your
site map. If current BMPs are not suicient, you will need to implement new ones or
update existing ones, such as starting a sweeping program for removing sediment
and trash from paved areas. At a minimum, a good inspection program combined
with a strong preventative maintenance program can spot problem areas before
they get out of control and even prevent new problems from arising.

10

The Costs and Options for a

solution
Mapistry provides a unique solution for industrial facilities and engineering firms &
consultants in California to file and update stormwater permits, thereby complying with
new stormwater permit requirements that go into eect on July 1st, 2015. Previously,
the only solution available to industrial facilities was hiring a consultant. For
consultants, the solution was to use an old SWPPP document in Word and have one
employee write the plan and another make the site maps in CAD or Corel Draw. Mapistry
saves time and money, helping facilities avoid costly fines and lawsuits.

Mapistry
Solution

Consultant

NonCompliance

Cost

$500 - $2,500

$1,500 - $25,000

Potentially $1MM+

Your Time

30+ Minutes

3 - 20+ Hours

Potentially Years

Emails/
Calls

6 - 12+

Potentially Hundreds

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maintaining an Ongoing

Besides updating their site map and

SWPPP, industrial facilities need to be
prepared for the monthly visual
inspections they will need to conduct and
four sampling events necessary each year.
The key is setting up a centralized
location18 for keeping track of completed
inspections and sampling results. Usually you want the stormwater team leader to be in
charge of organizing the records and assigning a team member to conduct all the
inspections. Therefore, starting the 2015-2016 reporting year with a centralized
recordkeeping system is key to managing the SWPPP, site maps, required inspections (16
total), and sample results (four sampling events up from two in the old permit).

solution

For sampling, a facility or consultant should establish a relationship with an

environmental testing laboratory, who will supply the containers necessary for sampling.
The laboratory often will pickup the samples for free after sampling events, so establish
the correct point of contact at the laboratory to schedule pickups. The best way to
minimize your risk of lawsuits and enforcements is to start early and get organized. Feel
free to contact our stormwater experts at Mapistry if you would like to be connected to
some environmental laboratories in your area. We are happy to make a connection (for
free) to some of the best environmental laboratories we have worked with over the years.

18. Mapistry will be launching their dashboard for inspections and sampling results in June, 2015.

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Summary

The new IGP in California goes into eect on July 1, 2015. For industrial facilities time is
running out to get their site map and SWPPP updated and filed with the SWRCB. There are
significant financial penalties for non-compliance (up to $37,500 per day) that the SWRCB
can enforce and the threat of environmental organizations citizen lawsuits is looming over
facilities (multi-million dollar settlements and decisions). The key to minimizing your risk
and the financial costs is to get started immediately and have an organized approach to
inspections and sampling. The top things to remember:

Lawsuits and notices of violations have been filed against industrial facilities
Get in compliance by filing your NOI by July 1, 2015
Update your site map and SWPPP by July 1, 2015

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about

Mapistry

Based out of Oakland, CA, Mapistry provides easy to use stormwater permit
compliance tools that allow consultants and facilities to quickly produce their site
maps and SWPPPs and conduct inspections. Its online software eliminates the need for
specialized training and puts powerful mapping and automated plan development
features in the hands of everyone, not just specialists. Mapistry was launched because
the complexity of existing geographic information system (GIS) software and the timeconsuming pain of writing stormwater plans. The company is driven by its passion for
big challenges and building a truly intuitive stormwater management workflow.
For more information, visit www.mapistry.com.