For a long period of time, U.S. EPA exempted stormwater from coverage under the Clean Water Act. This was largely due to the fact that EPA had enough on to do in simply regulating discharges from traditional point sources of water pollution. In 1987, Congress gave EPA the authority to regulate stormwater discharges from "presumptively dirty sources" including industrial activity. See, Ecological Rights Found. V. Pac. Gas and Elec. Co., 713 F. 3d 502, 505 (9th Cir. 2013)
After Congress acted, EPA passed regulations defining which businesses were "presumptively dirty" and needed to get permit coverage to better control discharges of stormwater. 40 C.F.R. Section 122.26(b)(14). EPA also developed the NPDES Multi-Sector Stormwater Permit and identified eleven different industrial categories that must get coverage under the Multi-Sector NPDES Stormwater Permit. See, 40 CFR 122.26(b)(14)(i)-(xi)
If, despite being associated with an industrial activity as defined in the regulations, stormwater is not actually exposed to industrial materials or activities, the facility may be able to obtain a "conditional no exposure" ("CNE") exclusion from the permit requirement.
If there is no sampling showing the stormwater contained pollutants is there a violation?
A facility may be required to obtain a permit because its discharges are "presumptively dirty," however, is there an actual violation for polluting waters if there is no direct evidence that the stormwater discharge actually contains pollutants? While Congress created the presumption that stormwater from industrial activity was presumptively dirty, the Clean Water Act definition of pollutant went unchanged:
Pollutant- "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemicals wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S. C. 1362(6)
The Court in Puget Soundkeeper Alliance v. Whitley Manufacturing Co., Inc. (Case No. C13-1690RSL, W.D. Wa., Nov. 9, 2015) recently found that a Citizen Group did not need to prove stormwater from a business contained actual pollutants before it could assert a violation of the Clean Water Act. The Citizen Group alleged the company violated the law by discharging stormwater from its business without a permit for a six year period.
The Court held that because the companies stormwater was associated with industrial activity, the stormwater "is, in and of itself, a pollutant." The Court found that:
"Even if the definition of ‘pollutant’ is strictly and narrowly construed to include only those items specifically listed (a theory that does not have universal acceptance), Congress was well within its discretion to clarify that the phrase ‘industrial, municipal, and agricultural waste’ includes stormwater that comes in contact with those materials…”
An interesting fact in this case was that in 2014 the facility obtained a CNE exclusion from permitting. However, the Court was still willing to found the company liable for discharging stormwater without a permit for the years prior to the CNE exclusion.
Why this decision is important
- Companies can be liable for Clean Water Act violations, including significant civil penalties, if they simply discharge stormwater from their business without a permit, even if there is no sampling that shows the stormwater contains contaminants;
- Companies should evaluate whether permit coverage for stormwater discharges is required for their business or seek a certification that their facility is exempt (i.e. No Exposure Certification- All industrial material are sheltered from exposure to stormwater);
- This case highlights the fact that companies don’t just face potential enforcement from regulators. Any person or entity with standing under the Clean Water Act Citizen Suit provisions can bring an action.