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September 25, 2014
Washington state is headed into a new era of water quality management.
The Department of Ecology recently submitted formal comments to the U.S. Environmental Protection Agency regarding proposed updates to human health criteria for 94 chemicals and later this year is expected to adopt changes to the state’s water quality human health criteria based on a higher rate of fish consumption.
The fish consumption rate is used to calculate criteria for toxics and is intended to protect the public from health risks from eating fish and shellfish from local waters.
Last year Ecology adopted new sediment management standards that must consider the adjusted fish consumption rates in setting cleanup standards for in-water cleanup sites. This will have a significant impact on the regulation of future stormwater discharges and efforts to prevent recontamination at sediment cleanup sites.
A massive cleanup
One area of our state that demonstrates the interplay of these regulatory changes is the Lower Duwamish Waterway in south Seattle. Water reaches the waterway from a labyrinth of wastewater, combined sewer overflow, and stormwater discharges from neighborhoods, industry, commercial operations, and municipal and port conveyance.
The Duwamish is a high commerce area of both large and small businesses, all of which have a connection to the river, and is a Superfund cleanup site overseen by the EPA and Ecology. The Lower Duwamish is preparing for the cleanup actions to begin with many management considerations, from how much sediment will be removed in which locations to how the dredged material is going to be handled once brought to shore.
ECOSS, a free and confidential support organization for local residents and businesses in the South Park neighborhood, has seen an increase in questions and awareness of the local businesses that may be impacted to the cleanup and stormwater management of the waterway. The cleanup is a massive undertaking, and while improving the health of the waterway and providing jobs and opportunities for some, it also will likely increase operational costs to businesses that discharge stormwater along its shoreline.
The waterway cleanup poses important considerations for businesses and municipalities. The parties paying for the removal of the contaminated sediment from the river have a vested interest in making sure that the cleanup, once complete, meets the criteria imposed by the regulatory agencies.
Tracy Williams of Murphy Armstrong & Felton LLP has advised businesses on and near the Duwamish on stormwater management issues and how new water quality standards might impact them.
“The regulatory agencies will seek to ensure that recontamination of the Duwamish from upland discharges to the river does not occur and water quality standards are met,” Williams said. “To achieve that, federal, state and local agencies will continue to inspect businesses for practices that could result in releases of contaminants into the Duwamish.”
Williams believes stormwater management is crucial in preventing contaminants from properties that are discharging to the Duwamish.
“Businesses holding a National Pollutant Discharge Elimination System Permit should fully understand all conditions of the permit and be in compliance,” Williams said. “Staying in compliance with a permit is extremely important because, in addition to the enforcement authority of EPA and Ecology, the federal Clean Water Act allows citizen groups to bring lawsuits against permitees who are out of compliance with their permits.”
Covered or not?
Ecology’s new Industrial General Stormwater Permit (ISGP) is being drafted and is expected to be effective on Jan. 1, 2015. One of the new requirements includes additional monitoring and cleaning of storm lines from industrial facilities discharging to the Lower Duwamish and other sediment cleanup sites.
Bradford Doll, an attorney with Tupper Mack Wells PLLC, has advised numerous public and private entities on stormwater compliance issues. He believes ISGP enforcement by EPA, Ecology and environmental groups has recently increased along the Duwamish and expressed concern with proposed ISGP requirements that apply to businesses discharging to Puget Sound sediment cleanup sites.
Doll notes that because Ecology has not specifically identified these sites, some dischargers may be left to guess at whether they are covered by the new rules. “Some businesses will likely find out too late they violated permit requirements they did not know applied to them,” he said.
Doll also expressed concern with potential exposure to citizen group lawsuits resulting from the proposed changes to the ISGP and hopes that the increased stormwater requirements will result in sediment quality improvements.
“Given the potential for lawsuits against local businesses and uncertainty about stormwater’s relationship to impaired sediments, I hope the additions to the ISGP are reasonable,” he said.
Presently, many municipalities and businesses are challenged to handle stormwater management and source control. The coming changes are likely to increase the level of diligence necessary to minimize liability to permit non-compliance and citizen group lawsuit.
According to Nate Holloway, the Northwest stormwater regional manager for SoundEarth Strategies, who has worked on several sites along the Lower Duwamish in the past 10 years, some of the most common challenges faced by businesses with respect to stormwater management include understanding the site drainage, having paperwork in order, finding a sampling location that truly reflects the discharge from the site property alone and not from other contaminant sources, and sample collection procedures and analysis by methodologies that can define the site discharge accurately at very low levels.
Serious attention is required for stormwater management programs to be successful at meeting permit compliance.
Williams stresses that “stormwater management is a multi-step process and businesses need to remain flexible in compliance approaches. At the same time, businesses need to be prepared to respond quickly when they discover a problem with their selected management method.”
A delayed response could lead to potential liability exposure, including a citizen suit or an enforcement action by a regulatory agency.
Patchwork of permits
The Lower Duwamish is poised to become a poster child for watershed management of stormwater. Watershed management means everyone businesses, industry, municipalities, construction activities and even residential communities managing stormwater based on improving the “health” of the water body at the end of the pipe and the people, plants and animals that call it home.
The collective objective to improve the health of a water body is a change in how stormwater is currently managed through a patchwork of permits.
There are many questions regarding the future implementation of sediment management and water quality standards:
• How will the standards affect stormwater management and industrial practices in the Lower Duwamish and other impaired water bodies?
• What impact will citizen lawsuits have at affecting state and federal policy?
• Will the Lower Duwamish set the stage for watershed management of stormwater in the U.S.?
• What will be the new operational costs to businesses that discharge to impaired water bodies?
It is not known for certain, but what can be counted on is that stormwater runoff and source control are going to be focuses for all parties large and small, municipal and private to make sure that “business as usual” considers the water quality needs of future generations.
Nathan Hardebeck is a stormwater program manager at SoundEarth Strategies. He has more than 14 years of experience in environmental consulting with an emphasis on best management practices and program management related to stormwater services.