ORDERS:
FINAL ORDER AND DECISION REACHED BY CONSENT OF PARTIES
I. Introduction
These
consolidated contested cases filed by the South Carolina Stormwater Managers
Association ("SCASM"), Charleston County ("Charleston"),
Dorchester County ("Dorchester"), the Town of Summerville ("the
Town"), and Berkeley County ("Berkeley"), arise from the
issuance of a National Pollutant Discharge Elimination System
("NPDES") permit entitled "State of South Carolina NPDES General
Permit for Storm Water Discharges From Regulated Small Municipal Separate Storm
Sewer Systems ("MS4s" or "SMS4s")." This General
Permit, assigned Permit No. SCS0000000, was issued November 7, 2003, and
provides authorization to small MS4s for their stormwater discharges. This
permit is issued in accordance with S. C. Code Regs 61-9 122.26 (A)(9)(i):
"On and after October 1, 1994, for discharges composed entirely of storm
water, that are not required by paragraph (a)(1) of this section to obtain a
permit, operators shall be required to obtain a NPDES permit only if: (A) The
discharge is from a small MS4 required to be regulated pursuant to section
122.32." This regulation is authorized by 33 U.S.C.S. Sec. 1342 (p) (2)
and (p) (4), which directed EPA to establish regulations setting forth
permitting requirements for municipal stormwater discharges.
The
individually named Petitioners are designated small MS4s based on the
definition provided in
S. C.
Code Regs 61-9 122.26 (b) (16) and are "regulated" small MS4s in
accordance with S. C. Code Regs. 61-9 122.32. Whether Petitioners are
"regulated" is dependent on whether there are "urbanized
areas" within the SMS4 as determined by data collected by the U. S. Bureau
of Census. SMS4s, based on urbanized areas, were identified by the
Environmental Protection Agency ("EPA") in the Federal Register, with
EPA's publication of the Final Rule B "Regulations for Revision of the
Water Pollution Control Program Addressing Storm Water Discharges." This
December 8, 1999, publication included Appendix 6 - "Governmental Entities
Located Fully or Partially Within an Urbanized Area." As of 1999, South
Carolina had 48 designated entities located in urbanized areas. This list
expanded with the 2000 census, and Appendix A to the General Permit lists 75
designated SMS4s in South Carolina.
Petitioners
Dorchester, the Town, Berkeley, and Charleston are included on this list. In
addition, Petitioner SCASM is an affiliate association of the Municipal
Association whose membership consists of all designated SMS4s in the State. SCASM's
purpose is to advise and educate its membership regarding the federal and state
requirements for SMS4s and to serve as a liaison and advocate in discussions
with SCDHEC. SCASM was actively involved in the public comment process for the
General Permit.
The
General Permit is 37 pages in length, and consists of 7 sections. For purposes
of discussion and evaluation of Petitioners' appeal, I have classified their
challenges under the following topics: 1) water quality permit conditions; 2)
construction and post-construction storm water control program permit
conditions; and, 3) decision process permit conditions.
Following
a contested case hearing in this matter, Petitioners SCASM, the Town, Berkeley,
and Dorchester entered into a proposed Settlement Agreement with SCDHEC
regarding certain terms and conditions of the permit. Petitioners and SCDHEC
sought approval of the Settlement Agreement, and this Court conducted a hearing
on August 12, 2005, regarding their request for approval. Charleston County
objected to the Settlement Agreement. At the August 12th hearing,
all parties agreed that for purposes of the submittal of Proposed Orders,
Petitioners SCASM, the Town, Berkeley, and Dorchester could align with SCDHEC
and submit a Proposed Order reflecting their positions in the Settlement
Agreement. Based on the affirmance of all parties that this course of action
was acceptable, I held in abeyance in ruling on the pending Motion Seeking
Approval of Settlement Agreement and Dismissal of Appeal.
In the
interim, Charleston County has also entered in an agreement with SCDHEC
regarding modifications to the General Permit. While this agreement differs
slightly from the Settlement Agreement between SCDHEC, SCASM, the Town,
Berkeley, and Dorchester, these Petitioners have consented to reformation of
their Settlement Agreement to reflect consistency with SCDHEC's and Charleston
County's agreement. As a result, all issues raised in the contested case
between the parties have been resolved, with the exception of the
"construction and post-construction storm water control program permit
conditions."
II. Analysis
A. Water-Quality Permit Conditions
Section
1.3.6
Section
1.3 of the General Permit contains the conditions related to "Limitations
on Coverage." In this Section, SCDHEC describes the discharges that are
not covered by the permit. This description includes the following:
(Original
text) 1.3.6 Discharges that would cause or contribute to violations of
water quality standards. Your SWMP (stormwater management program) must
include a description of the BMPs that you will be using to ensure that this
will not occur. SCDHEC may require corrective action or an application for an
individual permit or alternative general permit if an SMS4 is determined to
cause a violation of water quality standards.
To
understand the basis for Petitioners' objections to this condition, it is
important to understand the origin and nature of a typical stormwater
discharge. In its December 8, 1999, publication of the Final Rule, EPA
provided an analysis of water quality studies that focused on the effect of
urban run-off. EPA relied extensively on the study known as the "Results
of the Nationwide Urban Runoff Program" published in 1983. EPA summarized
this study as follows:
One
objective of the study was to characterize the water quality of discharges from
separate storm sewer systems that drain residential, commercial, and light
industrial sites. Storm water samples from 81 residential and commercial
properties in 22 urban/suburban areas nationwide were collected and analyzed
during the 5-year period between 1978 and 1983. The majority of samples
collected in the study were analyzed for eight conventional pollutants and
three heavy metals.
Data
collected under the NURP study indicated that discharges from separate storm
sewer systems draining runoff from residential, commercial, and light
industrial areas carried more than 10 times the annual loadings of total
suspended solids (TSS) than discharges from municipal sewage treatment plants
that provide secondary treatment. The NURP study also indicated that runoff
from residential and commercial areas carried somewhat higher annual loadings
of chemical oxygen demand (COD), total lead, and total copper than effluent
from secondary treatment plants. Study findings showed that fecal coliform
counts in urban runoff typically range from tens to hundreds of thousands per
hundred milliliters of runoff during warm weather conditions, with the median
for all sites being around 21,000/100ml.
Federal
Register, December 8, 1999 p. 68725
Clearly,
untreated stormwater contains high levels of pollutants. Consequently,
Petitioners argued that Section 1.3.6 had the effect of excluding the entirety
of Petitioners' discharge from coverage, even though the primary goal and
objective of the permit was to provide coverage.
In
addition, Section 1.3.6 requires Petitioners to incorporate a description of
Best Management Practices ("BMPs") in their SWMP that they will be
using to "ensure" that their discharges do not cause or contribute to
water quality violations. Petitioners presented the testimony of several
county stormwater managers and engineers who described the complexity of
stormwater systems. (See, Repik Testimony, Vol. 1, P. 109, l. 21 B P.
111, l. 8; Repik Testimony, Vol. 1, P. 125, l. 3 B P. 126, l. 25; Tompkins
Testimony, Vol. 2, P. 454, l. 22 B P. 455, l. 25) This complexity included the
fact that each SMS4s system consists of multiple outfalls varying in age from
the earliest development in the municipality, to the present, that were
ultimately turned over to local government for maintenance and control. (See,
Repik Testimony, Vol. 1, P. 62, l. 4 B P. 64, l. 6; Repik Testimony, Vol. 1, P.
75, l. 4-15) Each named Petitioner was still in the process of identifying
outfalls. (See, Repik Testimony, Vol. 1, P. 62, l. 4 B P. 64, l. 6) In
many instances the number of outfalls that the SMS4 would be responsible for
was hundreds, if not thousands. (See, Maglione Testimony, Vol. 2, P.
324, l. 17-19) Adding to this complexity is the fact that multiple
jurisdictions can control stormwater. (See, Repik Testimony, Vol. 1, P.
64, l. 21 B P. 66, l. 7; P. 125, l. 3 B 19; P. 110, l. 7 B P. 111, l. 5; Jarman
Testimony, Vol. 3, P. 678, l. 25 B P. 683, l. 22) A collection of stormwater
can flow through a drainage ditch controlled by the Department of
Transportation, into a stormwater pond owned and controlled by the local
Homeowners Association, and then into and out of multiple MS4 systems before
reaching its discharge point. Consequently, the SMS4 has limited control over
the stormwater. And in many instances stormwater is conveyed in open systems,
further limiting control. (See, Repik Testimony, Vol. 1, P. 67, l. 15 B
P. 68, l. 12; Jarman Testimony, Vol. 3, P. 709, l. 7 B 16)
Given the
nature of stormwater and stormwater systems, Petitioners could not ensure that
their discharges did not violate water quality standards. (See, Repik
Testimony, Vol. 1, P. 69, l. 22 B 25; P. 73, l. 19 B P. 74, l. 4; P. 84, l. 3 B
6; Maglione Testimony, Vol. 1, P. 193, l. 17 B p. 194, l. 5; P. 214, l. 9 B 14;
Tompkins Testimony, Vol. 2, P. 459, l. 6 B 19; Busby Testimony, Vol. 2, P. 485,
l. 1 B 19)
In
response to these concerns, SCDHEC has suggested, and Petitioners are in
agreement, that Section 1.3.6 could be modified as follows:
(Revisions
in accordance with parties' Agreement.) 1.3.6 This permit does not
authorize: New or expanding point source discharges that would cause or
contribute to violations of water quality standards unless your SWMP includes a
description of the BMPs and implementation procedures that you will be using to
reduce the discharge of pollutants from your MS4 to the MEP, to protect water
quality, and to satisfy the appropriate water quality requirements of the Clean
Water Act. Provisions of 1.5.1 specifically apply to this Subsection as well
as the remainder of this permit.
This
modification addresses Petitioners' concerns. Now, Petitioners' discharges are
not excluded from coverage if Petitioners have developed and are implementing a
Stormwater Management Plan, and if this Plan utilizes BMPs designed to reduce
the pollutants found in stormwater. This modification is also consistent with
the EPA's intent, as expressed in the Federal Register.
Today's
rule imposes a federal requirement of general applicability, namely, the
requirement to obtain and comply with an NPDES permit, on municipalities that
operate a municipal separate storm sewer system. . . . Because NPDES permits
can impose end-of-pipe numeric effluent limits, narrative effluent limits in
the form of "management" program requirements are also within the
scope of Clean Water Act authority. As noted above, however, EPA believes that
such narrative limitations are the most appropriate form of effluent limitation
for these types of permits. For municipal separate storm sewer permits, CWA
section 402(p)(3)(B)(iii) specifically authorizes "controls to reduce
pollutants to the maximum extent practicable, including management practices,
control techniques and system, design and engineering methods . . .
December
8, 1999, Federal Register at 68765
Further,
this modification is consistent with S. C. Code Reg. 61-9 122.34 which requires
that a SMS4 "develop, implement, and enforce a storm water management
program designed to reduce the discharge of pollutants from your MS4 to the
maximum extent practicable (MEP), to protect water quality, and satisfy the
appropriate water quality requirements of the Clean Water Act." 61-9
122.34 requires that a SMS4's SWMP include the minimum control measures,
referred to as "the six minimum measures." And 61-9 122.34 provides
that "[i]mplementation of best management practices consistent with the
provisions of the storm water management program required pursuant to this
section and the provisions of the permit required . . . constitutes compliance
with the standard of reducing pollutants to the "maximum extent
practicable."
In
addition, in the revisions to Section 1.3.6 offered by the parties, reference
is made to a newly added Section, Section 1.5 "Implementation,
Interpretation, and Enforcement." Petitioners presented testimony that
the General Permit failed to reflect the policy expressed by EPA that permit
compliance be achieved iteratively, or over time. (See, Repik
Testimony, Vol. 1, P. 100, l. 6 B 16; Maglione Testimony, Vol. 2, P. 326, l. 12
B P. 327, l. 2, P. 335, l. 8 B 16) The parties referred to this policy as the
"iterative process."
At this
time, EPA determines that water quality-based controls, implemented through the
iterative processes described today are appropriate for the control of such
pollutants and will result in reasonable further progress towards attainment of
water quality standards.
Federal
Register, December 8, 1999, p. 68731
The
interim permitting approach uses best management practices (BMPs) in
first-round storm water permits, and expanded or better-tailored BMPs in
subsequent permits, where necessary, to provide for the attainment of water quality
standards.
This
interim permitting approach provides time, where necessary, to more fully
assess the range of issues and possible options for the control of storm water
discharges for the protection of water quality.
Consistent
with the recognition of data needs underlying the Policy, EPA will evaluate the
small MS4 storm water regulations after the second round of permit issuance. .
. . EPA strongly recommends that until the evaluation of the storm water
program . . . no additional requirements beyond the minimum control measures be
imposed on regulated small MS4s without the agreement of the operator of the
affected small MS4 . . . .
Federal
Register, December 8, 1999, p. 68788
While
SCDHEC believed that the permit under appeal reflected the iterative process,
it has agreed to add Section 1.5.7. The addition of this section clarifies the
responsibilities of SMS4s, and makes specific reference to the body of policy
developed by the EPA by including the Federal Register in the list of documents
that can be relied on in interpreting the parties' requirements under the
permit.
I find
and conclude that the additional interpretive language provided by newly
drafted Section 1.5, along with the revisions to Section 1.3.6, are
appropriate, and are further consistent with the parties' obligations under
federal and state law.
In
addition, and in response to Petitioners' testimony that the General Permit may
have the unintended effect of excluding much of Petitioners' stormwater
discharge, SCDHEC has agreed to add a new Section 1.3.7. (See below for
discussion of original Section 1.3.7, and its revisions and re-numbering as
Section 1.3.8.) This Section provides as follows:
(Revisions
in accordance with parties' Agreement.) Section 1.3.7. Existing discharges
that are causing or contributing to a violation of water quality standards are
not excluded from coverage under this general permit provided your SWMP
includes a description of the BMPs and implementation procedures that you will
be using to work towards compliance with water quality standards in accordance
with Parts 3 and 4 and Subpart 5.3 of this permit. Provisions of 1.5.1
specifically apply to this Subsection as well as the remainder of this permit.
I further
find that new Section 1.3.7 address the Petitioners' concern related to
coverage, and demonstrates recognition of the federal intent in terms of the
Petitioners' obligations.
Section 1.3.7
The
General Permit included the following exclusion or limitation of coverage,
contained in Section 1.3.7:
(Original
text) Discharges of any pollutant into any water for which a Total Maximum
Daily Load (TMDL) has been established unless your discharge is consistent with
that TMDL. This eligibility condition applies at the time you submit a Notice
of Intent for coverage. If conditions change after you have permit coverage,
you may remain covered by the permit provided you comply with the applicable
requirements of Part 3. You must incorporate any limitations, conditions and
requirements applicable to your discharges, including monitoring frequency and
reporting required, into your SWMP in order to be eligible for permit coverage.
Petitioners
presented testimony and evidence to demonstrate that SCDHEC was actively moving
forward with the process of adoption of total maximum daily loads
("TMDLs") for pollutants of concern. (See, Repik Testimony,
Vol. 1, P. 138, l. 3 B 17; Maglione Testimony, Vol. 1, P. 235, l. 4 B P. 236,
l. 19; P. 239, l. 1-15; Maglione Testimony, Vol. 2, P. 371, l. 12 B 14) TMDLs
are authorized in accordance with 33 U.S.C.S. Sec. 1313(d):
(1)(A)
Each State shall identify those waters within its boundaries for which the
effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B)
. . . are not stringent enough to implement any water quality standard
applicable to such waters. The State shall establish a priority ranking for
such waters, taking into account the severity of the pollution and the uses to
be made of such waters.
(C) Each State shall establish for the waters identified in paragraph (1)(A)
of this subsection, and in accordance with the priority ranking, the total
maximum daily load, for those pollutants which the Administrator identifies
under section 304(a)(2) . . . as suitable for such calculation. Such load
shall be established at a level necessary to implement the applicable water
quality standards with seasonal variations and a margin of safety which takes
into account any lack of knowledge concerning the relationship between effluent
limitations and water quality.
33
U.S.C.S. Sec 1313(d)(1)(A) is implemented by SCDHEC, and the result is the
303(d) list of impaired water bodies, a copy of which was admitted in evidence
as Exhibit 33 at the hearing. In many instances, the listed water bodies are
impaired for bacteria, or fecal coliform. Fecal coliform is a pollutant likely
to be carried by stormwater. (See, Repik Testimony, Vol. 1, P. 27, l. 9
B 12; P. 117, l. 20 B P. 118, l. 7; Ovalles Testimony, Vol. 2, P. 498, l. 14 B
19) In implementation of its responsibilities under 33 U.S.C.S. Sec
1313(d)(1)(C), SCDHEC has developed numerous TMDLs for fecal coliform.
Petitioners presented as Exhibits copies of TMDLs developed by SCDHEC to
address fecal impairment (see Exhibits 44 B 49). These TMDLs prescribe a
numeric limit, or percent reduction, in fecal loadings in the impaired stream.
(See, Maglione Testimony, Vol. 1, P. 206, l. 8 B P. 217, l. 7)
Petitioners
testified that despite the availability of BMP's to reduce the discharge of pollutants
contained in stormwater, there was no technology currently available that would
ensure elimination of all bacteria in stormwater. (See, Repik
Testimony, Vol. 1, P. 85, l. 12 B P. 86, l. 1; Maglione Testimony, Vol. 1, P.
177, l. 6 -18) Therefore, based on the prevalence of streams impaired for
fecal, and the hundreds if not thousands of outfalls in each MS4's system,
Petitioners were, in all likelihood, discharging fecal into streams subject to
an established TMDL. And, their discharges were inconsistent with the TMDL.
Thus, 1.3.7 as provided for in the permit under appeal, provided a broad
exclusion, or limitation, and was inconsistent with the federal intent as
expressed in the Federal Register and the statutory mandate to provide
authorization for stormwater discharges.
SCDHEC
and Petitioners have agreed that the following modifications to 1.3.7, now
Section 1.3.8, are a more accurate representation of Petitioners' obligations
to address impairment and to comply with established TMDLs:
(Revisions in accordance with parties' Agreement.) 1.3.8
Discharges
of any pollutant into any water for which a Total Maximum Daily Load (TMDL) has
been established unless your SWMP includes a description of the BMPs and
implementation procedures that you will be using to work towards compliance
with a TMDL. You must incorporate any limitations, conditions and requirements
contained in the TMDL applicable to your discharges if any, including
monitoring frequency and reporting required, in order to be eligible for permit
coverage. Applicable limitations, conditions and requirements contained in the
TMDL are those limitations, conditions and requirements set forth in the TMDL
implementation plan and attributed specifically to your MS4. Provisions of
1.5.1 specifically apply to this Subsection as well as the remainder of this
permit.
This
revised Section addresses Petitioners' concerns as to their obligations in
order to achieve consistency with a TMDL. This revised Section removes any
uncertainty as to whether Petitioners' discharge is excluded if it is not
consistent with the reductions expressed in the TMDL. Petitioners' discharges
are not excluded so long as they have developed storm water management plans
that indicate attention, on Petitioners' part, to addressing impairment.
The
revisions to Section 1.3.7, now numbered 1.3.8, are consistent with federal
intent as is demonstrated in the Federal Register:
Commenters,
generally from the regulated community, objected that, due to references to the
need to develop a program "to protect water quality" and to
additional NPDES permit requirements beyond the minimum control measures based
on TMDLs or their equivalent, regulated small MS4s will be subject to uncertain
permit limitations beyond the six minimum control measures. Commenters also
asserted that through the imposition of a wasteload allocation under a TMDL in
impaired water bodies, there is a likelihood that unattainable, yet enforceable
narrative and numeric standards will be imposed on regulated small MS4s.
As is
discussed in the preceding section, NPDES permits must include any more
stringent limitations when necessary to meet water quality standards. However,
even if a regulated small MS4 is subject to water quality based effluent
limits, such limits may be in the form of narrative effluent limitations that
require the implementation of BMPs.
Federal
Register, December 8, 1999, p. 68790.
Consequently,
while Petitioners' discharges are: 1) likely to contain pollutants for which
TMDLs have been developed; and, 2) likely to impact an impaired stream; the
General Permit provides coverage for the discharge as long as Petitioners
utilize appropriate BMPs designed to reduce the discharge of the pollutant of
concern. I find that the revisions to the original text of Section 1.3.7, now
re-numbered Section 1.3.8, are consistent with state and federal legal
requirements for stormwater discharges of SMS4s.
Section 3.1.2
In an
addition to the exclusion, or limitations, contained in Sections 1.3.6 and 1.3.7,
the General Permit contained Special Conditions relating to discharges to
impaired waterbodies or streams for which TMDLs were developed.
(Original
text) 3.1.2 Water Quality Controls for Discharges to Impaired Water
bodies. Your SWMP must include a section describing how your program will
control the discharge of the pollutants of concern and ensure that your
discharges will not cause or contribute to violations of water quality
standards. This discussion must specifically identify measures and BMPs that
will collectively control the discharge of the pollutants of concern.
Petitioners
objected to this condition based on the requirement to ensure that
stormwater discharges would not cause or contribute to violations of water
quality standards. As is discussed above, Petitioners presented testimony
regarding the published 303(d) list of impaired streams in South Carolina, and
whether Petitioners had outfalls or discharges impacting these streams. The
bulk of the impairments noted on the 303(d) list were for fecal coliform, a
pollutant known to be contained in municipal stormwater. (See, Busby
Testimony, Vol. 2, P. 481, l. 21 B P. 484, l. 12) While Petitioners intended
to implement BMPs to reduce the discharge of pollutants, Petitioners' expert testified
that there is no BMP presently available that will ensure that fecal can be
eliminated from Petitioners' discharges. (See, Maglione Testimony, Vol.
1, P. 191, l. 23 B P. 194, l. 6)
SCDHEC has suggested, and Petitioners agree, that Section 3.1.2 can
be revised as follows:
(Revisions
in accordance with the parties' Agreement) 3.1.2 Water Quality Controls
for Discharges to Impaired Water Bodies. Your SWMP must include a section
describing how implementation of your SWMP will provide Reasonable Assurance
that discharges will not cause or contribute to violations of water quality
standards in Impaired Water Bodies. This discussion must specifically identify
measures and BMPs that are designed to collectively control the discharge of
the pollutants of concern. Provisions of 1.5.1 specifically apply to this
Subsection as well as the remainder of the permit.
For
purposes of this Subsection 3.1.2, the following definitions shall apply:
"Impaired Water Bodies" means those water bodies identified by the State
of South Carolina under Section 303(d) of the Federal Clean Water Act or under
40 CFR sec. 130.7.
"Reasonable
Assurance" means something that is reasonably likely to occur, given
uncertainties; it is not a guarantee that it will occur. It requires an
assessment that water quality standards can be met, while acknowledging
uncertainty, and includes measures to remove or reduce the uncertainty. In the
present context, the iterative process inherent in the MS4 program addresses
that uncertainty.
I find
that the requirement that an MS4 provide reasonable assurance that its
discharge will not cause or contribute to water quality violations, as defined
by the parties, is consistent with the federal intent expressed in the
publication of the final EPA Rule, and with 33 U.S.C.S. Sec. 1342 (p) (2) and
(p) (4) or with S. C. Code Regs 61-9 122.26 (A)(9)(i).
Section 3.1.3
Petitioners
objected to the requirements of 3.1.3 B "if a TMDL has been established
for any watershed into which you discharge, you must:"
(Original
text) 3.1.3.1 through 3.1.3.7
Determine
whether the TMDL is for a pollutant likely to be found in storm water
dischargers from your SMS4.
Determine
whether the TMDL includes a pollutant allocation or other performance
requirements specifically for storm water discharge from your SMS4.
Determine
whether the TMDL addresses a flow regime likely to occur during periods of
storm water discharge.
After the
determinations above have been made and if it is found that your SMS4 must
implement specific provisions of the TMDL, assess whether the allocations are
being met through implementation of existing storm water control measures or if
additional control measures are necessary.
Document
all control measures currently being implemented or planned to be implemented.
Also include a schedule of implementation for all planned controls. Document
the calculations or other evidence that shows that the allocation will be met.
Describe
a monitoring program to determine if existing storm water controls are adequate
to meet the allocation.
If the
evaluation shows that additional or modified controls are necessary, describe
the type and schedule for the control additions/revisions. Continue sections
3.1.3.4 B 7 until two continuous monitoring cycles show that the allocations
are being met or that the Water Quality Standards contained in SC Regulation
61-68 are being met.
Petitioners'
objections to 3.1.3.1 through 3.1.3.7 are based on the evidence and testimony
summarized in the discussion of permitting requirements for TMDLs set forth
above. Petitioners are concerned that these sections require Petitioners to
meet specific allocations established, through the TMDL process, for pollutants
commonly found in stormwater. And, as is discussed above, there is no
technology currently available that Petitioners can use to achieve precise
percentage reductions or allocations of particular pollutants.
The
Department considers 3.1.3.1 through 3.1.3.7 to be reflective of an iterative
requirement for Petitioners to work towards compliance with established TMDLs.
It is not the Department's intent for Petitioners to be at risk of violation of
the General Permit if Petitioners' discharges to impaired streams contain a
pollutant for which a TMDL is established. Petitioners are compliant with the
General Permit so long as they are compliant with any provision of the TMDL
specifically applicable to Petitioners' discharge. In order to reflect this,
the parties have agreed to eliminate 3.1.3.1 through 3.1.3.7 and revise 3.1.3
as follows:
(Revisions
in accordance with parties' Agreement) 3.1.3 Consistency with Total
Maximum Daily Load Allocations. If a TMDL has been established for any
watershed into which you discharge, you must incorporate any limitations,
conditions and requirements contained in the TMDL applicable to your
discharges, if any, including monitoring frequency and reporting required, in
order to be eligible for permit coverage. Applicable limitations, conditions
and requirements contained in the TMDL are those limitations, conditions and
requirements set forth in the TMDL implementation plan and attributed
specifically to your MS4.
I find
that the revisions to 3.1.3 as agreed to between all parties are appropriate.
Such revisions are consistent with the federal intent as expressed in the
Federal Register, and discussed above in relation to Section 1.3.7 (now Section
1.3.8). Such revisions are further consistent with S. C. Code Reg. 61-9 122.34
B As an operator of a regulated, small MS4, what will my NPDES MS4
stormwater permit require? "You must comply with any more stringent
effluent limitations in your permit, including permit requirements that modify,
or are in addition to, the minimum control measures based on an approved Total
Maximum Daily Load (TMDL)." R. 61-9 122.34 (e).
B. Decision Process Permit Conditions
The
General Permit imposes conditions related to the six minimum control measures
in Section 4.2. For each of the six minimum control measures, the General
Permit includes a condition entitled "Decision process." These
conditions are contained in Sections 4.2.1.2, 4.2.2.2, 4.2.3.2, 4.2.4.2,
4.2.5.2, and 4.2.6.2. Each condition requires documentation of the decision
process for development of programs for implementation of each minimum
measures. Petitioners objected to these conditions as an imposition of
substantive requirements not authorized by statute or regulation. In
addition, Petitioners claimed that these requirements were duplicative of the
duty to prepare a stormwater management plan and an annual report. The
Department maintained that documentation of the decision process was necessary
in order to insure that the Department had a basis to conclude that Petitioners
were adequately developing programs to address each minimum measure.
The
parties have agreed that the following revisions are sufficient to address
Petitioners' concerns and the Department's need for documentation:
(In
accordance with the parties' Agreement) 4.2.1.2 Decision process [Public
Education and Outreach on Storm Water Impacts] You must document your decision
process for the development of a storm water public education and outreach
program. Such documentation may be included in your permit application, your
SWMP, or your annual report submitted pursuant to Section 5 of this permit. If
this information is not included in your permit application, your SWMP, or your
annual report submitted pursuant to Section 5 of this permit, you must provide
a rationale statement that addresses both your overall public education program
and the individual BMPs, establishes measurable goals, and identifies
responsible persons for your program. The rationale statement must include the
following information, at a minimum:
4.2.2.2 Decision
process [Public Involvement/Participation] You must document the program
development process and the implementation of a storm water public education
and outreach program. Such documentation may be included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit. If this information is not included in our permit application,
your SWMP, or your annual report submitted pursuant to Section 5 of this
permit, you must submit a rationale statement that addresses both your overall
public involvement/participation program and the individual BMPs, selection of
the measurable goals for each of the BMPs, evaluation of the success of this
minimum measure, and responsible persons for your program. The rationale
statement must include the following information, at a minimum:
4.2.3.2 Decision
process [Illicit Discharge and Elimination] You must document your decision
process for the development of a storm water illicit discharge detection and
elimination program. Such documentation may be included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit. If this information is not included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit, you must develop a rationale statement that addresses your
overall illicit discharge detection and elimination program and the individual
BMPs, measurable goals, and responsible persons for your program. The
rationale statement must include the following information, at a minimum:
4.2.4.2 Decision
process [Construction Site Stormwater Run-off Control] You must document
your decision process for the development of a construction site storm water
control program. Such documentation may be included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit. If this information is not included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit, you must develop a rationale statement that addresses your
overall construction site storm water control program and the individual BMPs,
measurable goals, and responsible persons for your program. The rationale
statement must include the following information, at a minimum:
4.2.5.2 Decision
process [Post-Construction Storm Water Management in New Development and
Redevelopment] You must document your decision process for the development of a
post-construction SWMP. Such documentation may be included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit. If this information is not included in your permit
application, your SWMP, or your annual report submitted pursuant to Section 5
of this permit, you must develop a rationale statement that addresses your
overall post-construction SWMP and the individual BMPs, measurable goals, and
responsible persons for your program. The rationale statement must include the
following information, at a minimum:
4.2.6.2 Decision
process [Pollution Prevention/Good Housekeeping for Municipal Operations]
You must document your decision process for the development of a pollution
prevention/good housekeeping program for municipal operations. Such
documentation may be included in your permit application, your SWMP, or your
annual report submitted pursuant to Section 5 of this permit. If this
information is not included in your permit application, your SWMP, or your
annual report submitted pursuant to Section 5 of this permit, you must develop
a rationale statement that addresses your overall pollution prevention/good
housekeeping program and the individual BMPs, measurable goals, and responsible
persons for your program. The rationale statement must include the following
information, at a minimum:
These
revisions address Petitioners' concerns regarding duplicating information that
may have already been provided to the Department, and address the Department's
concerns that its administrative record reflect sufficient basis for compliance
with the terms and conditions of the General Permit. These revisions further
address the requirement of S. C. Code Reg. 61-9 122.34 (g) Evaluation and
assessment: "You must evaluate program compliance, the appropriateness
of your identified best management practices, and progress toward achieving
your identified measurable goals." (Emphasis added.)
III. Order
The
parties by their statements made in open court and by their correspondence with
the court have demonstrated their consent to modification of the General
Permit, Permit No.: SCS0000000. It is, therefore, Ordered, that the NPDES
General Permit for Storm Water Discharges for Regulated Small Municipal
Separate Storm Sewer Systems (MS4s) be, and it is hereby, amended, to reflect
the parties' agreement regarding Sections 1.3.6, 1.3.7 (new), 1.3.8, 1.5.1
(new) 3.1.2, 3.1.3, 4.2.1.2, 4.2.2.2, 4.2.3.2, 4.2.4.2, 4.2.5.2, and 4.2.6.2,
as set forth herein.
AND IT
IS SO ORDERED.
_____________________________
Ray N. Stevens
Administrative Law Judge
Greenville,
South Carolina
Dated:
December 28, 2005
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