Permitting and Regulations
In the Water Quality Act of 1987, Congress established a schedule under which EPA was required to establish regulations and issue permits for storm water discharges “associated with construction activity”.Under EPA’s storm water program, all discharges associated with construction activity require a permit. To remain in compliance with the terms of the permit, permittees are required to have a Storm Water Pollution Prevention Plan, and several other specific requirements.In 1992 EPA issued a Baseline Construction Storm Water Permits. The baseline permit expired in September, 1997. On July 6, 1998 EPA issued a new Construction Storm Water Permit. Any facility having a baseline storm water construction permit, should reapply under the new general storm water permit. Unpermitted existing and new construction sites should also apply under the new construction permit.
Construction Permit Requirements:
- New conditions to protect listed endangered species
- Should the Owner, Contractor or Owner and Contractor be a Permittee?
- Expanded coverage to construction sites under five acres of disturbed land
- A requirement to post at the construction site the confirmation of permit coverage
- Performance objectives for the Storm Water Pollution Prevention Plan
- Authorization for discharge from support activities like Concrete plants
- Runoff coefficient of the site and the data describing the soil or the quality of any discharge from the site
- Area and Site map indicating drainage pattern, anticipated slopes, area of soil disturbance and several other items
- Erosion and Sediment Controls plan
- New schedule of Inspections
- Final Stabilization requires uniform vegetative cover
Penalties for Non-Compliance:
Non-compliance with the Clean Water Act is a serious issue. For example, under the Clean Water Act, “negligent” violations can result in a fine of up to $27,500 per day of violations and or up to one year in prison.
TxDOT Grant Program
You may be aware that the Department of Transportation is making available thousands of dollars in assistance to public airports across the state of Texas. As a way of helping you to get involved in this beneficial program, AARC would like you to have the following information on the opportunities afforded by the TxDOT grant program.The grant is available to cover 50% of the costs of many annual airport maintenance requirements. These funds will pay for environmental compliance needs such as storm water permits and spill prevention plans. In addition, TxDOT may also approve professional services to meet ongoing requirements including inspections, pollution prevention training, site evaluations, numeric effluent limitations sampling, and SPCC training.State funding is a $30,000 match per airport for each fiscal year. The State fiscal year begins September 1st. The local government match is 50% of actual costs plus any excess of $60,000 total costs.The program includes “lower cost” airside and landside airport improvements. These items can be more than just maintenance and may be new or additional items of work. Examples are: construction of airport entrance roads; pavement of airport public parking lots; installation of security fencing, replacement of rotating beacon, etc. The general rule is that if the expenditure is a good investment of state dollars and a needed item which will improve the facility, it is eligible. TxDOT will make determination of the eligibility of specific items. Keep in mind that airside improvements are of first priority before requesting assistance with landside maintenance and improvements.Local governments are allowed to issue their own contracts for scope of services. If the TxDOT district is unable to assist in the requested service, the local government can contract for reasonableness of the costs. TxDOT will not participate in contracts for any ineligible scope items or for costs that are unreasonable for the type of service. Local government force account work is NOT ELIGIBLE.A grant agreement must be in place prior to work being performed. A Grant must be executed each state fiscal year. To initiate the grant the City or County should submit a letter of interest which shall describe the project for which the grant is being requested and the estimated cost of the project, if available. The letter of interest may be in the form of a written letter, electronic mail, facsimile, by phone or personal contact with staff.Work as described on the Scope of Services of the grant shall be completed during the State fiscal year (September 1st – August 31st).
ELIGIBLE WORK ITEMS UNDER RAMP GRANTS AIRSIDE MAINTENANCE:
- Pavement crack sealing
- Pavement Slurry Seal/Fog Seal/Rejuvenator
- Pavement markings
- Limited pavement failure repairs
- Drainage maintenance
- Herbicide – fire ant control – mesquite tree eradication
- Replacement bulbs/lamps for airside lighting fixtures and approach aids
- Beacon, lighting, approach aids – repair and maintenance
- Part replacement for AWOS not covered under warranty
Concrete & Industrial Storm Water Permitting
The U.S. Environmental Protection Agency (EPA), Region 6, has issued a final general permit (TXG110000) that regulates the discharge of facility wastewater and contact storm water from ready-mixed concrete plants, concrete products plants, and their associated facilities in Texas. Facilities with a Standard Industrial Classification (SIC) Code 3271, 3272, or 3273 may apply to the TCEQ for coverage under this general permit. The general permit’s effective date is February 2000. New facilities must submit an NOI 30 days prior to the date of initial discharge. On midnight February 14, 2005, this general permit expired. A renewal has been proposed and the 30-day public notice was published in the Texas Register on May 20, 2005. As authorized by 30 Texas Administrative Code (TAC) Chapter 205.5(b), existing discharges covered by this general permit will maintain coverage until the commission takes final action on the proposed renewal. Therefore, no new discharges can be authorized under this general permit or notices of intent (NOIs) accepted until issuance of the proposed renewal.
Key requirements of the general permit include the establishment of effluent limitations and requirements to:
- Conduct whole effluent toxicity testing once per year
- Sample for specified metals once per year
- Develop a pollution prevention plan
Who is required to comply?
This permit covers discharges of facility wastewater and contact storm water from ready-mixed concrete plants, concrete products plants and their associated facilities in Texas. These facilities have Standard Industrial Classification (SIC) Codes 3273 (manufacture of Ready-Mixed Concrete), 3272 (manufacture of concrete products, except block and brick) and 3271 (manufacture of concrete block and brick). Ready-mixed concrete plants are facilities, including temporary concrete batch plants, primarily engaged in mixing and delivering ready-mixed concrete as classified by SIC Code 3273. Concrete products plants are facilities primarily engaged in manufacturing concrete products as classified by SIC Code 3272, and facilities primarily engaged in manufacturing concrete building blocks and bricks from a combination of cement and aggregate as classified by SIC Code 3271. Associated facilities are facilities associated with such plants and establishments where maintenance and washing of ready-mix vehicles or equipment occurs. Contact storm water means storm water which comes in contact with any raw material, product, by-product or waste material. Facility waste water means any waste water which is generated at the plants or associated facilities authorized by this permit, but not including domestic sewage.
What is involved in compliance?
A Pollution Prevention Plan must be implemented for each facility which discharges contact storm water. The plan shall identify potential sources of pollution that may reasonably be expected to affect the quality of contact storm water discharges from the facility. In addition, the plan shall describe and ensure the implementation of practices used to reduce the pollutants in contact storm water discharges at the facility and to assure compliance with the terms and conditions of this permit. Facilities must implement the provisions of the storm water pollution prevention plan as a condition of this permit. The plan shall be kept onsite at the facility that generates the storm water discharge. In addition, a Notice of Intent must be filed with the TCEQ.
So What if I Don’t?
Enforcement authorities are empowered to bring charges under three classifications.
- Negligent Violations. Any person who negligently violates permit conditions is subject to a fine of not less than $2,500 nor more than $25,000 per day, or by imprisonment for not more than 1 year, or both.
- Knowing Violations. Any person who knowingly violates permit conditions is subject to a fine of not less than $5,000 nor more than $50,000 per day, or by imprisonment for not more than 3 years, or both.
- Knowing Endangerment. Any person who knowingly violates permit conditions and who knows at that time that he is placing another person in imminent danger of death or serious bodily injury is subject to a fine of not more than $250,000, or by imprisonment for not more than 15 years, or both.
- False Statements. Any person who knowingly makes any false material statement or certification in any application or other document or who knowingly falsifies, tampers with, or renders inaccurate, any required monitoring device or method shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or by both. For a second conviction, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both.
Regarding civil penalties, any person who violates a permit condition is subject to a civil penalty not to exceed $27,500 per day for each violation.
Any person who violates a permit condition is subject to an administrative penalty, as follows:
- Class I Penalty. Not to exceed $11,000 per violation nor shall the maximum amount exceed $27,500.
- Class II Penalty. Not to exceed $11,000 per day for each day during which the violation continues nor shall the maximum amount exceed $137,500.
Don’t let this happen to you or your company. With an experienced staff of competent, responsible professionals, AARC provides optimal solutions to complex regulatory and environmental issues with reliable, effective and timely support to all of our public and commercial clients. AARC is proud to offer high quality and cost-efficient environmental services. We stay ahead of the regulatory curve. Knowing what’s out there and what’s coming down the road ensures that our clients are never caught looking the wrong way.
Environmental Factors in Real Estate Transactions
Whenever environmental contamination is found, all of the owners, both current and former, can be held liable for cleanup costs. In some instances, the cost of environmental cleanup, exclusive of litigation, may exceed the market value of the property.
Site Use History
A property ownership chronology is developed for the land and all adjoining property for past usage. Handling of potentially hazardous or toxic materials raises questions.
Air Photo Interpretation
Existing aerial photographs are matched with the site use history. A careful examination is conducted for details of site use that might be a suspect source of surface or subsurface contamination.
Utility and Regulatory Record Review
A water and sewer use history is compiled to document wastewater, air pollution control or solid/hazardous waste activities.PCB History
Inquiry is made as to the history of PCB’s in transformers, capacitors or lubricants.
Site Accident And Emergency History
Local records are inspected to determine if there were fires, explosions, spills, tank leaks, pipe leaks or other accidents that may have released hazardous materials.
Raw Material and Waste History
A list is prepared of known and suspected raw materials that may have been used on the site, especially materials that might contain constituents on the EPA list of potentially hazardous constituents, especially solvents that can easily enter the ground water from spills or other losses.
Sewer System Review
Storm, sanitary and process wastewater sewers are documented and mapped.
Underground Tanks and Piping
Present or past underground tanks and piping are mapped and documented, especially for leaks.
Site-soil test borings and water supply wells is compiled. The potential for surface spills or losses of contaminants that may have resulted in ground-water contamination is determined.
Environmentally Sensitive Areas
The presence of wetlands and habitat for protected or endangered species is determined. Such environmentally sensitive areas can prevent or limit site development.
Existing conditions and restrictions regarding area air emissions is determined.
An inventory of structures on the site is developed.
Applications for Environmental Impairment Liability (EIL) insurance are investigated to weigh potential problems with insuring the site.
Evaluation of Information
The site is evaluated in light of the investigation findings. If contamination seems possible, a program of testing, sampling and analysis is implemented.
Sample and Test
If covered trenches, pits, impoundments or unidentified tanks are suspected, surface geophysical surveys are helpful in locating such features and mapping conductive contamination plumes. If surface spills are suspected, a program of shallow hand-auger soil sampling in suspect areas and drainageways can give a quick overview. Deeper soil sampling and ground-water monitoring is advisable for sites where mobile hazardous constituents, such as organic solvents, were handled.
Uncertainty and a Fair Price
While there is always the possibility that a significant environmental problem might go undetected, the careful buyer or seller can minimize the uncertainty and risk.
Most environmental problems need not terminate a sale. When a problem is discovered, the potential buyer may reduce the purchase offer to reflect the expected cost for correcting the problem. If price adjustments are to be considered, based on environmental conditions, both the buyer and seller should have an independent corrective action cost estimate prepared as a basis for establishing a fair price.
Through the Water Quality Act of 1987, Congress established a schedule under which EPA instituted regulations and issued permits for storm water discharges associated with industrial activity. Under EPA’s program, all discharges associated with industrial activity require a permit. To remain in compliance with the terms of the permit, permittees are required to have a Storm water Pollution Prevention Plan (SWP3), Pollution prevention Training, and other industry-specific requirements. In 1992, EPA issued a baseline storm water permit, followed by the first Multi-Sector General Permit in 1995. EPA’s current permits for storm water discharges from industrial activities (MSGP-2000) expires on October 30, 2005. After EPA reissues the new MSGP, existing permittees will have 90 days to update their Storm Water Pollution Prevention Plans and submit a new Notice of Intent (NOI) to continue their permit coverage for the next five year period. Many states have EPA-delegated permits. These permits are issued by the state. Such permits vary in their requirements and expiration dates.
Who should apply for a permit?
Permit coverage (MSGP or delegated) is required for facilities under two conditions: 1) the runoff enters water of the United States (WOTUS) or enters a municipal separate storm sewer system before draining to water of the U.S., and 2) the facility conducts an industrial activity defined in 40 CFR 122.
Penalties for non-compliance
Non-compliance with the Clean Water Act is a serious issue. For example, “negligent” violations can result in a fine of up to $25,000 per day of violations and/or up to one year in prison. “Knowing” violations can result in a fine of up to $50,000 per day per violation and/or 3 years in prison. Violations of “knowing endangerment” can result in fines of up to $250,000 and 15 years in prison for individuals, or up to $1,000,000 for corporations.
Permit application process
Permits are required in thirty industrial sectors that fall into one or more of the eleven categories of storm water discharges associated with industrial activity described in 40 CFR 122. These include the following categories:
- facilities with effluent limitations;
- mineral, metal, oil, and gas;
- hazardous waste, treatment, or disposal facilities;
- recycling facilities;
- steam electric plants;
- transportation facilities;
- treatment works;
- construction activity;
- light industrial activity.
The permit requires the storm water dischargers to develop site-specific pollution prevention plans, based on industry-specific best management practices specified in the permit. A small percentage of facilities will be required to submit detailed quantitative data on their discharge. These are general permits, acquired by submission of the NOI. If the facility cannot qualify for or does not file an NOI for coverage under a general permit, it must submit an individual permit application. The preparation for the individual application is a burdensome process, requiring not only detailed information about the facility but also quantitative data based on samplings of storm water discharges collected during storm events.
Who is covered by the SPCC Oil Spill Regulations?
Any facility meeting the three criteria (a non-transportation related facility with sufficient storage capacity which could discharge oil to navigable waters) must comply with the Spill Prevention, Control, and Countermeasure regulations. Any facility with an aboveground aggregate storage capacity greater than 1,320 gallons of oil without secondary containment must meet SPCC regulations.
Some regulated facilites:
- Industrial, commercial, or public facilities that use, store, produce, gather, process, refine, or consume oil or oil products
- Waste treatment facilities
- Highway vehicles and railroad cars used to transport oil within the confines of a non-transportation related facility
- Loading areas/racks, transfer hoses, loading arms and other equipment that are part of a non-transportation related facility.
What is “Oil storage capacity?”
A determination is based upon the geographical and locational aspects of the facility in relation to its proximity to streams, pond, ditches (perennial or intermittent), storm or sanitary sewers, and wetlands.
The distance to navigable waters, volume of material stored, weather conditions, drainage, and soil type must be taken into account. The determination shall not consider manmade structures such as dikes, berms, or other features that may restrain, hinder, contain, or prevent an oil discharge.
Who prepares the SPCC Plan?
Any authorized environmental consultant, engineer, or scientist may write a facility’s SPCC plan. However, the Plan must be prepared in accordance with standard engineering practices and certified by a Professional Engineer.
What do I have to do to comply?
The regulations require owner/operators to prepare a plan for their facility within six months of becoming operational and to implement the plan within twelve months of the start of the operations.
In July 2002, EPA amended the Oil Pollution Prevention regulation, often referred to as the “SPCC rule.” The rule describes the requirements for facilities to prepare, amend, and implement an SPCC Plan. These plans are the foundation of EPA’s strategy to prevent or contain oil spills, requiring facilities to put in place countermeasures which will prevent oil spills from reaching the nation’s waterways. Under the law, facilities must implement specific spill prevention and control measures.
Every SPCC Plan has certain basic requirements while, at the same time, each plan must be tailored to the facility it serves. As part of its enforcement program, EPA conducts unscheduled on-site inspections. Any facility that has had two or more discharges over 42 gallons in any 12-month period or a single discharge of more than 1,000 gallons will be subject to closer scrutiny and more stringent reporting requirements.
SPCC plans must be certified by a professional engineer and signed by a person with the authority to implement the Plan and take responsibility for its success or failure. The Plan must address these three areas:
- Operating procedures that prevent oil spills
- Control measures installed to prevent a spill from reaching navigable waters
- Countermeasures to contain, clean up, and mitigate the effects of an oil spill that reaches navigable waters
The SPCC plan must include certain standard elements, including:
- A description of the physical layout and a facility diagram
- Contact list and phone numbers for the facility response coordinator, National Response Center, cleanup contractors, and all appropriate federal, state, and local agencies who must be contacted in case of a discharge.
- A prediction of the direction, rate of flow, and total quantity of oil that could be discharged where experience indicates a potential for equipment failure
- A description of containment and/or diversionary structures or equipment to prevent discharged oil from reaching navigable waters. (For on-shore facilities, one of the following must be sued at a minimum: dikes, berms, or retaining walls; culverting, gutters, or other drainage systems; weirs, booms, or other barriers; spill diversion ponds; retention ponds; sorbent materials.)
- Where appropriate, a demonstration that containment and/or diversionary structures or equipment are not practical; periodic integrity and leak testing of bulk containers and associated valves and piping; oil spill contingency plan; and a written commitment of manpower, equipment, and materials to quickly control and remove spilled oil.
- A complete discussion of the plan applicable to the facility and/or its operations.
The inspection is the first step of several steps in the enforcement process. If violations are noted during an inspection, the TCEQ may give the respondent a verbal notice to correct all violations within 14 days, send a notice of violation (NOV) alleging violations found and request the submittal of a compliance schedule to resolve the violations or begin formal enforcement if the violations have not been resolved through an NOV or are significant.
Formal enforcement will usually result in a TCEQ order to correct the violations and pay administrative penalties. This process may include a hearing and frequently involves attorneys for both parties.
EPA may assess criminal, judicial, or administrative penalties against oil or hazardous substance dischargers as well as facility owners/operators who fail to comply with the Oil Pollution Prevention regulation. Depending on the jurisdiction, the new system allows for penalties of up to $10,000 per violation, $10,000 per day, or up to $1,000 per barrel of oil spilled, $100,000 per violation, $250,000 for an individual or $500,000 for a corporation, and a maximum prison sentence of 5 years.
State Regulatory Agencies
Alabama Department of Conservation and Natural Resources
Alabama Department of Economic and Community Affairs
Alabama Department of Environmental Management
Alabama Department of Public Health
Alabama Department of Transportation
Alabama Rural Water Association
Alabama State Oil and Gas Board
Bay Area Air Quality Management District
California Air Resources Board
California Department of Water Resources
California Environmental Protection Agency (CalEPA)
California Public Utilities Commission (CPUC)
Sacramento Metropolitan Air Quality Management District
Santa Barbara County Air Pollution Control District
South Coast Air Quality Management District (AQMD)
State of California Public Utilities Commissiont