Reexamined Statewide General Construction Permit .

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Revised Statewide General Construction Permit. September 23, 2010 CMAA Southern California Chapter Peter A. Nyquist ALSTON & BIRD LLP (213) 576-1142 Topics. Context and Legal Framework for Regulation of Storm Water How We Got Here
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Reexamined Statewide General Construction Permit September 23, 2010 CMAA Southern California Chapter Peter A. Nyquist ALSTON & BIRD LLP (213) 576-1142

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Topics Context and Legal Framework for Regulation of Storm Water How We Got Here Storm Water Permit Enforcement Issues Recommended Readiness Measures

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Regulation of Storm Water Federal Clean Water Act Initially centered around diminishing " point source " contamination by requiring individual NPDES licenses for release of poisons Section 402(p) 1987: CWA revised to make structure for managing storm water releases under NPDES program 1990: USEPA receives last directions requiring NPDES allow scope Porter-Cologne Act (California) SWRCB assigned power to oversee NPDES program submerged Code § 13240 et seq.

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How We Got Here General Construction Permit Milestones WQO 99-08-DWQ received in August 1999 updated March 2003 lapsed August 19, 2004 - stayed essentially pending new allow March 2007 – April 2009 SWRCB issues arrangement of preparatory, proposed and overhauled drafts of allow various open workshops, open remarks, partner input June 17, 2009: SWRCB listening to September 2, 2009: Final SWRCB hearing and allow selection July 1, 2010: Effective date of reconsidered allow

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Enforcement Issues Enforcement as Statewide Priority Evolving political and administrative scene Limited state assets "Subject armed force" Enforcement Mechanisms State authorization of common or criminal punishments Private implementation through native suit power Local/civil implementation of co-broad prerequisites

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Year N o. of Violations % with Enforcement 2002 1,243 N/A 2003 926 N/A 2004 577 N/A 2005 294 N/A 2006 229 204 (89%) 2007 156 139 (92%) 2008 238 234 (98%) 2009 80 69 (80%) Storm Water Enforcement: "The Numbers"* Region 4 Permittees: Construction: 2,486 Industrial: 2,807 Municipal: 100 Total: 5,393 (~25,000 statewide) Region 4: Number of Storm Water Permit Violations * Source: 2009 Water Code Section 13385 Enforcement Report (Jan. 2010)

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Violation Category Non - Priority Violations Priority Violations Total % of Total Reporting 644 88 732 63% Deficient BMP Implementation 285 6 291 25% Incomplete/Insufficient SWPPP 84 6 90 8% Unauthorized Discharge 31 2 33 3% Other Requirements 11 0 11 1% Failure to Pay Fees 4 0 4 ~0% Monitoring 2 0 2 ~0% Total 1,061 102 1,163 100% Storm Water Violations By Category 2009

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RWQCB Enforcement Tools RWQCB Notification of Violations Verbal Notification Notice of Violation Inspection Reports Enforcement Letters Section 13267 Request for Information CAOs ACLs Attorney General Referral

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Water Code Section 13385 Potential ACL Penalties Up to $10,000 per infringement and every day infringement happens For releases not tidied up and which are more noteworthy than 1,000 gallons, and extra $10/gallon punishment can be evaluated Mandatory Minimum Penalties Generally, interminable or single intense infringement (an exceedance of either 20 or 40 percent of as far as possible, contingent upon the constituent) of specific constituents Monitoring reports over 30 days late MMP of $3,000 to be surveyed when at least 4 profluent constraint infringement happen inside 6 month time span

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ACL Penalty Assessments SWRCB Goals: Fair and steady obligation sums Eliminate financial or upper hand from resistance Penalty ought to endure relationship to: gravity of infringement mischief to helpful uses respectability of administrative projects Deter future infringement, both by the violator and the managed group

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Potential Areas for Increased Enforcement Under Revised General Construction Permit Old Permit Enforcement driven by field perceptions and examinations New Permit Newly required submittals may bring about expanded infringement: Permit Required Documents (PRDs) SWPPP or chance assurance not set up by QSD NEL/NAL and yearly reports New BMP and investigation prerequisites Addition of prescriptive BMP necessities for all hazard levels Soil Cover: i.e., has powerful soil cover been accommodated "dormant territories," completed inclines, and finished parts?

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Clean Water Act Citizen Suits CWA Section 505(a) grants private gatherings to begin common activity against: "any individual . . . who is claimed to be infringement of (An) an emanating standard or constraint . . . on the other hand (B) a request issued by . . . a State regarding such standard or restriction." Remedies Injunctive alleviation Civil punishments, up to $32,500 every day, per infringement Attorneys\' expenses

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Clean Water Act Citizen Suits Santa Monica Baykeeper v. L&V Tomalevski Architects Alleged release of dig and fill material, development garbage, won\'t, dirtied storm water and non-storm water from nearby private advancement extends in Mandeville Canyon Settled on positive terms, yet: expenses of barrier extra alleviation measure costs as state of settlement Santa Monica Baykeeper v. Kramer Metals, Inc. 619 F. Supp. 2d 914 (C.D.Cal 2010) Alleged SWPPP lacks, deficiencies of BMPs, inability to agree to checking and reporting arrangement necessities.

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CERCLA Liability? Joined States v. WSDOT (W.D.Wash, June 7, 2010) State office (that outlined thruway storm water spillover framework that released contaminants to conduit) obligated as "arranger" under CERCLA On The Other Hand . . . "Governmentally Permitted Release" Exemption: Discharges in consistence with NPDES allow prerequisite (e.g., CA Statewide General Construction Permit) are not subject under CERCLA for reaction costs (42 U.S.C. § 9707(j)) Carson Harbor Village v. Unocal , 287 F.Supp.2d 1118 (C.D.Cal 2003) Municipalities working tempest water frameworks in consistence with allowing plans not subject under CERCLA as "arrangers"

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Final Thoughts: Rain Season Readiness Measures Understand chance based approach and how to perform computations and venture arranging Develop conventions for rain occasion status Begin observing edge of property/release point overflow for turbidity and pH If relevant, comprehend accepting water qualities and search for foundation information where accessible Prepare for electronic record submittals and reporting prerequisites for checking data Account for expanded expenses of consistence

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Thank You! Dwindle A. Nyquist ALSTON & BIRD LLP (213) 576-1142

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