Stranded in Level 1 or Level 2? The 2020 IGP Amendments Allow an Escape

April 2020

Operators under California’s Industrial General Permit (IGP) are familiar with the challenge of maintaining “baseline” status under the IGP. This is especially true for mines and construction material producers, whose facilities are often characterized by unpaved and erodible areas. The “numeric action levels” (NALs) in the IGP set a low bar for entering Level 1 or Level 2 status, and their associated burdens, and a high bar for returning to baseline.

Some operators respond to this challenge by investing in basins, ponds, or other “best management practices” (BMPs) that retain stormwater. If sized sufficiently, these features allow operators to eliminate discharges during most storms.[1] When a facility has already entered Level 1 or 2 status, however, these investments can have an unintended effect.

The current IGP allows a return to baseline only if analytical results from four consecutive qualifying storms show pollutant levels below the NALs. Such a demonstration is difficult or impossible, however, if a facility is retaining its stormwater and has no discharge to sample. The current IGP offers no ready pathway for returning to baseline, leaving such facilities stranded in Level 1 or 2.

The IGP set to take effect on July 1, 2020 provides an opportunity for relief. The new version adds “compliance options” designed to incentivize stormwater retention. Operators that avail themselves of the options are automatically “in compliance” with key IGP provisions and are exempt from Level 1 and Level 2 requirements.

The core eligibility requirement is that operators implement BMPs that can capture and use, infiltrate, or evapotranspire water during the 85th percentile, 24-hour rain event as measured by local historical data or that can divert such water to a sanitary sewer system. An offsite option allows partnerships between operators and agencies to achieve the same standard. Implementing either option exempts the facility from status designations (i.e., baseline, Level 1, Level 2) and exceedance response actions.

Details regarding the incoming IGP and the compliance options can be found at the State Water Resources Control Board’s website.

[1] This article assumes that the facility does not meet the requirements for submitting a “Notice of Non-Applicability” (NONA) to the water boards, which requires a higher level of stormwater containment than most facilities have the ability to feasibly achieve.

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Sean Hungerford and Tiffany Michou are attorneys at Harrison, Temblador, Hungerford, and Johnson in Sacramento, California.

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