Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
3 ANALYSIS OF FEDERAL LAWS, REGULATIONS, CASE LAW, AND SURVEY OF EXISTING AIRPORT NPDES PERMITS REGARDING TENANTâOPERATOR RESPONSIBILITIES UNDER NPDES AND STORMWATER MANAGEMENT BMPS UNDER OWNER/AIRPORTâS OPERATING PERMITS By CDM Smith in collaboration with Barg Coffin Lewis and Trapp, LLP RESEARCH OVERVIEW The objective of this research project is to clar- ify and document responsibility for implementa- tion, and liability for enforcement of alleged viola- tions, in connection with maintaining and executing National Pollutant Discharge Elimina- tion System (NPDES) stormwater permit re- quirements, practices, and reporting at airports. If the airport owner alone is identified as the discharger/responsible party on the permit, the implication is the federal or state regulatory au- thorities expect that the owner has tenant com- pliance assurances for general stormwater man- agement and implementation, operation, and maintenance of best management practices (BMPs) and also for stormwater permit compli- ance associated with on-property airport construc- tion projects that may be covered under a stateâs general permit. As established by the Clean Water Act (CWA), the NPDES permit program controls water pollu- tion by regulating point sources that discharge pollutants into waters of the United States. Most states are authorized to implement the NPDES permit program including permitting for storm- water discharges. The U.S. Environmental Protec- tion Agency (EPA) remains the permitting author- ity in a few states and territories and on most tribal lands. For these areas, EPA provides over- sight and issues stormwater permits. EPAâs regulations allow authorized states to is- sue general permits or individual permits to regu- late stormwater discharges, which implement the regulatory standards promulgated by the EPA and any independent state laws or regulations governing water quality. EPAâs Multi-Sector Gen- eral Permit (MSGP) and Construction General Permit (CGP) apply only in areas where EPA is the permitting authority. Under EPAâs industrial storm water permit program, 11 categories of industrial operations are covered by the MSGP. These categories are denoted by narrative descriptions and industrial classification codes, including Sector S âtranspor- tation facilitiesâ that conduct vehicle or aircraft maintenance, equipment cleaning, or airport deic- ing operations. This project summarizes state and federal stormwater regulations and jurisdictional author- ity for taking enforcement action against and im- posing liability directly on airport owners related to tenant noncompliance issues and to develop guidance for airport operators regarding effective BMPs and permitting arrangements for enforcing tenant compliance with stormwater permit re- quirements. INDUSTRIAL STORMWATER GENERAL PERMITS Legal research was conducted regarding the complexities of jurisdictional authority and laws and regulations regarding the stormwater permit- ting programs implemented by EPA and the states of California, New York, Washington, Illi- nois, and Texas. The research focused on the fol- lowing issues: â¢ Any independent state legal authority for regulating stormwater discharges associated with industrial activity. â¢ Provisions that distinguish between the obli- gations of a facility owner and a facility operator. â¢ Limitations on the scope of stormwater per- mit coverage at air transportation facilities. â¢ Benchmarks or numerical limitations for ef- fluent monitoring parameters applicable to air transportation facilities, and any associated cor- rective action requirements. â¢ BMPs applicable to air transportation facili- ties in an industrial stormwater general permit. â¢ Any administrative or judicial decisions in- terpreting EPAâs stormwater regulations, EPAâs industrial stormwater general permit, or any in- dustrial stormwater general permit issued by the selected states.
4 State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity Each of the states reviewed has the authority to implement the provisions of the Clean Water Act. The independent state legal authorities re- lated to industrial stormwater discharges are as follows: â¢ In California, the regulation of water quality and the implementation of the Clean Water Act, including the issuance of discharge permits, is governed by the Porter-Cologne Water Quality Control Act.1 â¢ New Yorkâs general state law governing wa- ter quality control is the New York Environ- mental Conservation Law (NY ECL), Article 17 (Water Pollution Control). Title 8 of Article 17 governs the State Pollution Discharge Elimina- tion System (SPDES) program.2 In addition, the New York State Department of Environmental Conservation (NYSDEC) is expressly authorized by regulation to issue general permits for storm- water discharges associated with industrial activ- ity.3 â¢ Washingtonâs general state law governing water quality control is its Water Pollution Con- trol Law.4 The Washington Department of Ecology (Ecology) is authorized to establish and adminis- ter a SPDES permit program.5 â¢ The Illinois EPA (IEPA) issues state NPDES permits pursuant to Illinois Environmental Pro- tection Act, Illinois Compiled Statutes, Title III (Water Pollution), Section 11.6 â¢ The Texas Commission on Environmental Quality (TCEQ) is authorized to issue NPDES permits pursuant to Texas Water Code Section 26.027, and Texas Water Code Section 26.040 spe- 1 Cal. Water Code Â§Â§ 13000â13365 (2014); Cal. Water Code Â§Â§ 13370â13389 (2014); California Water Code Â§ 13372 provides that state law âshall be construed to ensure consistency with the requirements for state pro- grams implementingâ the CWA. California Water Code Â§ 13377 provides that the California Water Board or regional boards are authorized to issue discharge per- mits. 2 N.Y. ENVTL. CONSERV. LAW Â§Â§ 17-0801 to 17-0831 (2014). 3 N.Y. COMP. CODES R. & REGS. tit. 6, Â§ 750-1.21(b)(3) (2014). 4 WASH. REV. CODE Â§Â§ 90.48.010 to 90.48.605 (2014). 5 Id. Â§ 90.48.260. 6 415 ILL. COMP. STAT. ANN. 5/11 (2014). cifically authorizes TCEQ to issue general NPDES permits.7 Provisions that Distinguish Between the Obligations of a Facility Owner and a Facility Operator Under EPAâs MSGP, the operator of the facility is responsible for obtaining coverage. EPAâs regu- lation does not define the terms âownerâ or âop- eratorâ or distinguish between the obligations of owners and operators. Rather, the regulatory pro- visions addressing application requirements for stormwater discharges associated with industrial activity apply to âdischargersâ of such stormwa- ter.8 EPA has promulgated regulatory definitions applicable to the entire NPDES permit program, including stormwater discharges associated with industrial activity.9 The term âowner or operatorâ is defined to mean âthe owner or operator of any âfacility or activityâ subject to regulation under the NPDES permit program.â10 This definition suggests that the regulated en- tity is the owner of the stormwater collection and conveyance systems (i.e., drainage pipes, culverts, stormwater collection ponds, outfalls) and those portions of the airport involved in vehicle mainte- nance, equipment cleaning, or deicing operations. In many cases this would likely be the same en- tity that owns the land on which the airport is located, but in other cases a tenant could be an âowner,â particularly if the tenant constructed or owns portions of the stormwater collection or con- veyance system as part of its leasehold. With respect to who may be deemed an opera- tor, EPA has clarified that what is important is who operates a facility or engages in activity that generates stormwater discharges associated with industrial activity. In its Notice of the Final 1995 MSGP for Industrial Activities, EPA acknowl- edged that airports typically operate under the management of an airport âauthority,â with air- line carrier and other fixed base operator âten- ants.â Specifically, the Notice states: âWhere an airport has multiple operators (airport authority and tenants) that have storm water discharges associated with industrial activityâ¦, each opera- tor is required to apply for coverage under an NPDES storm water permit.â Thus, any tenant that engages in vehicle maintenance, equipment 7 TEX. WATER CODE ANN. Â§Â§ 26.027, 26.040 (2013). 8 40 C.F.R. Â§ 122.26(c) (2014). 9 Id. Â§ 122.2. 10 Id.
5 cleaning operations, or deicing operations, where such activities are likely to generate pollutants that could be or are discharged with stormwater, would be considered an operator. EPAâs regulations governing applications for individual permits contain a provision recognizing that there may be a distinction between a facility owner and operator. Specifically, though the re- quirement to submit an application for an indi- vidual permit applies to â[a]ny person who dis- charges or proposes to discharge pollutants,â11 the regulations further provide that â[w]hen a facility or activity is owned by one person but is operated by another person, it is the operatorâs duty to ob- tain a permit.â12 Although EPAâs regulation governing stormwa- ter discharges does not distinguish between an owner or operator, the regulation does define the term âco-permitteeâ to mean âa permittee to a NPDES permit that is only responsible for permit conditions relating to the discharges for which it is an operator.â13 Thus, the regulation envisions that more than one party may be covered under a permit and that each co-permittee may have re- sponsibilities that are limited to the discharge for which it is an operator. Indeed, EPA has made clear that âeach individual party, whether a co- permittee or a separate permittee, must submit a NOI to be covered under [a MSGP].â An airport authority is not responsible for ensuring compli- ance with conditions of the permit for tenants that are separate permittees, rather than co- permittees with the airport authority. Legal research did not locate any statutory, regulatory, or administrative provisions that dis- cuss permittee or co-permittee status, or that oth- erwise distinguish between facility owners, opera- tors, or tenants in the general permits or governing regulations for the states of California, Washington, Illinois, or Texas. NYSDEC regulations state: âWhen a facility or activity is owned by one person but is operated by another person, it is the operatorâs duty to obtain a permit.â14 The 1997 California Water Board general per- mit for industrial stormwater discharges (CA GP) stated: The facility operator must submit an NOI [notice of in- tent] for each industrial facility that is required by U.S. Environmental Protection Agency (U.S. EPA) regulations 11 Id. Â§ 122.21(a). 12 Id. Â§ 122.21(b) (emphasis added). 13 Id. 122.26(b)(1). 14 N.Y. COMP. CODES R. & REGS. tit. 6, Â§ 750-1.6. to obtain a storm water permitâ¦. The facility operator is typically the owner of the business or operation where the industrial activities requiring a storm water permit occur. The facility operator is responsible for all permit-related activities at the facility.15 The Washington Industrial Stormwater Gen- eral Permit (WA ISGP) defines âdischargerâ as âan owner or operator of any facility or activity subject to regulation under Chapter 90.48 [of Re- vised Codes of Washington] or the Federal Clean Water Act.â16 Limitations on the Scope of Stormwater Permit Coverage at Air Transportation Facilities EPAâs 2008 and 2013 Draft MSGP apply to stormwater discharges from only those portions of the air transportation facility that are involved in vehicle maintenance, equipment cleaning opera- tions, or deicing operations. The 2015 CA GP and NY MSGP do not specifi- cally address the scope of permit coverage at air transportation facilities or at any other category of industrial activity. However, applicable to air transportation facilities, the NY MSGP specifi- cally prohibits dry weather discharges of deicing and anti-icing chemicals.17 The WA ISGP applies to air transportation fa- cilities that have vehicle maintenance activity, equipment cleaning operations, or airport deicing operations.18 Once a transportation facility has permit coverage, the permit applies to the entire footprint of the industrial facility. Similarly, for air transportation facilities, the scope of coverage under the Illinois general per- mit (Ill. GP) and Texas general permit (TX GP) is 15 Waste Discharge Requirements (WDRS) for Dis- charges of Storm Water Associtated with Indus. Activi- ties Excluding Constr. Activities, CAL. WATER BDS., At- tachment 3, http://www.waterboards.ca.gov/water_ issues/programs/stormwater/docs/induspmt.pdf. The recently adopted 2015 CA GP does not have an at- tachment containing âNOI Instructions,â and similar language does not appear in the 2015 CA GP. 16 Wash. Indus. Stormwater Gen. Permit, WASH. DEPâT OF ECOLOGY, at 53, http://www.ecy.wa.gov/ programs/wq/stormwater/industrial/permitdocs /iswgpfinal051612.pdf; WASH. REV. CODE Â§Â§ 90.48.010 to 90.48.605 (2014). 17 SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, N.Y. DEPâT OF ENVTL. CONSERVATION, at 153, http://www.dec.ny.gov/docs/ water_pdf_gp12001.pdf. 18 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 7.
6 limited to discharges from vehicle maintenance, equipment cleaning, and airport deicing.19 The TX GP pro- hibits the discharge of wastewater associated with washing aircraft, ground vehicles, runways, or equip- ment, and dry weather discharge of deicing chemicals.20 Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities and Any Associated Corrective Action Requirements Monitoring Benchmarks For airports that use more than 100,000 gallons of glycol-based deicing chemicals or 100 tons or more of urea on an average annual basis: Permit pH 5-day Biochemical Oxygen Demand (BOD5) Chemical Oxygen Demand (COD) Ammonia Total Nitrogen Nitrate/Nitrite EPA MSGP1 6.0-9.0 30 mg/L 120 mg/L 2.14 mg/L NA NA CA GP2 6.0-9.0 30 mg/L 120 mg/L 2.14 mg/L NA NA NYMSGP3 6.0-9.0 30 mg/L 120 mg/L NA 6 mg/L NA WA ISGP4 5.0-9.0 30 mg/L 120 mg/L 2.1 mg/L NA 0.68 mg/L IL GP5 NA NA NA NA NA NA TX GP6 6.0-9.0 NA 60 mg/L 2.5 mg/L NA NA 1. Part 8, Subpart S, Â§ 8.S.6.21 2. Numeric Action Levels (NALs). 3. SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, supra note 17, at 158. 4. Wash. Indus. Stormwater Gen. Permit, supra note 16, at 26â27. 5. Requires monitoring during the permit application phase only. Section D (Application Requirements). 6. Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., supra note 20, at 131â32. 19 Gen. NPDES Permit for Storm Water Discharges from Industrial Activities, ILL. ENVTL. PROTECTION AGENCY DIV. OF WATER POLLUTION CONTROL, at 2â3, http://www.epa.state.il.us/water/permits/storm-water/general-construction-permit. pdf. 20 Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., TEX. COMMâN ON ENVTL. QUALITY, at 128â29, http://www.tceq.texas.gov/assets/public/permitting/stormwater/txr050000.pdf. 21 Multi-Sector Gen. Permit for Stormwater Discharges Associated with Indus. Activity, EPA NPDES Â§ 8.S.6, http://water.epa.gov/polwaste/npdes/stormwater/upload/msgp2008_finalpermit.pdf.
7 Effluent Limitations Existing and new primary airports with 1,000 or more annual jet departures that discharge wastewater associated with airfield pavement deicing that contains urea commingled with stormwater: Ammonia as Nitrogen Permit Daily Maximum EPA 2013 MSGP1 14.7 mg/L CA 2015 GP2 14.7 mg/L 1. Part 8, Subpart S, Â§ 8.S.7.1.22 2. 40 C.F.R. Â§Â§ 449.1â449.20 (2014).23 22 Multi-Sector Gen. Permit for Stormwater Discharges Associated with Indus. Activity, EPA NPDES Â§ 8.S.7.1, http://water.epa.gov/polwaste/npdes/stormwater/upload/msgp2013_proposedpermit8.pdf. 23 See Gen. Permit for Stormwater Discharges Associated with Indus. Activity, CAL. WATER BDS., Attachment F, http://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2014/wqo2014_0057_dwq.pdf. 24 Id. Airports meeting the definition of a new source (ânew airportsâ) with 10,000 annual departures must col- lect 60 percent of aircraft deicing fluid after deicing and meet the following numerical effluent limitations for chemical oxygen demand (COD) at the location where the effluent leaves the onsite treatment system utilized for meeting these requirements and before commingling with any nondeicing discharge: COD Permit Daily Maximum Weekly Average EPA 2013 MSGP1 271 mg/L 154 mg/L CA 2015 GP2 271 mg/L 154 mg/L 1. Multi-Sector Gen. Permit for Stormwater Discharges Associated with Indus. Activity Â§ 8.S.7.1, supra note 22. 2. 40 C.F.R. Â§Â§ 449.1â449.20 (2014).24
8 Corrective Action Requirements Pollutant benchmark concentrations are not ef- fluent limitations. A benchmark exceedance is not a permit violation but an indication of the overall effectiveness of BMPs and indicates that BMPs for that pollutant should be reviewed to determine if modifications are necessary. Follow-up monitor- ing is typically required to evaluate the effective- ness of modifications. Part 3 of EPAâs MSGP states generally appli- cable corrective action requirements (i.e., these requirements are not specific to air transportation facilities).25 If any of the following conditions oc- cur, the permittee must immediately review and revise the selection, design, installation, and im- plementation of control measures to ensure that the condition is eliminated and will not be re- peated in the future: â¢ An unauthorized release or discharge. â¢ A discharge violates a numeric effluent limit. â¢ Control measures are determined to be not stringent enough for the discharge to meet appli- cable water quality standards or nonnumerical effluent limits of the permit, or control measures are not being properly operated and maintained. The 2015 CA GP states that exceedances of NALs trigger specific response actions (referred to as âExceedance Response Actionsâ).26 These in- clude evaluation of potential pollutant sources, reporting, and BMP implementation based on the number and frequency of detections of parameters above limits. Per the NY MSGP, if âsignificantly or deleteri- ously large quantities of deicing chemicals are being spilled or discharged, or if water quality impacts have been reported,â inspections must be conducted weekly until discharges or impacts are reduced to acceptable levels.27 The WA ISGP establishes three levels of correc- tive action requirements based on the frequency of benchmark value exceedances requiring pollut- ant source identification, BMP inspection and re- views, Stormwater Pollution Prevention Plan 25 Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity Â§Â§ 3.1-3.6, supra note 21. 26 Gen. Permit for Stormwater Discharges Associated with Indus. Activity, supra note 23, at 48â55. 27 SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, supra note 17, at 157. (SWPPP) review, reporting, and additional moni- toring and treatment BMP implementation.28 The Ill. GP for industrial stormwater dis- charges does not contain specific effluent stan- dards or limitations, specific corrective action re- quirements or compliance schedules. However, the general permit does require reporting within 24 hours âany noncompliance which may endan- ger health or the environment.â29 The TX GP for stormwater discharges associ- ated with industrial activities contains various corrective action requirements, including report- ing and SWPPP/BMP review.30 Required or Recommended BMPs at Air Transportation Facilities Each of the stormwater general permits require that standard BMPs be selected and implemented to address the following: â¢ Good housekeeping practices. â¢ Minimizing exposure of potential pollutant sources to precipitation. â¢ Erosion and sediment control. â¢ Management of runoff. â¢ Preventative maintenance records or log- books. â¢ Regular facility inspections. â¢ Spill prevention and response. â¢ Employee training. Sector-specific BMPs are set forth in a series of industrial fact sheets published by EPA. The Fact Sheet for Air Transportation Facilities explains that appropriate measures will be site-specific.31 In addition to the standard BMPs, the NY MSGP identifies various BMPs specific to air transportation facilities, including good house- keeping BMPs and source reduction BMPs appli- cable to: 28 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 35â37. 29 Gen. NPDES Permit for Storm Water Discharges from Constr. Site Activities, Attachment H, supra note 19. 30 Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., supra note 20, at 66â67. 31 U.S. ENVTL. PROTECTION AGENCY, FACT SHEET SERIES SECTOR S: VEHICLE MAINTENANCE AREAS, EQUIPMENT CLEANING AREAS, OR DEICING AREAS LOCATED AT AIR TRANSPORTATION FACILITIES, EPA 833- F-06-034 (DEC. 2006).
9 â¢ Aircraft, ground vehicle, and equipment maintenance, cleaning, and storage areas. â¢ Material storage areas. â¢ Airport fuel system and fueling areas. â¢ Deicing and anti-icing chemical product se- lection. â¢ Runway deicing operations. â¢ Aircraft deicing and anti-icing operations. â¢ Management of runoff. â¢ Inspections frequency.32 The Illinois industrial stormwater general per- mit requires the standard stormwater BMPs but also requires air transportation facilitiesâ salt storage piles used for deicing to be covered to pre- vent exposure to precipitation, unless there are no stormwater discharges from the pile.33 The Texas industrial stormwater general per- mit does not require or recommend specific BMPs for air transportation facilities. However, the gen- eral permit specifies sector-specific SWPPP re- quirements for air transportation facilities that relate to consideration of BMPs for deicing prod- uct storage and application and the management of runoff containing spent deicing fluid.34 Administrative or Judicial Decisions Interpreting EPAâs Regulations, MSGP Industrial Stormwater Permits, or State-Specific Industrial Stormwater General Permits EPA.âLegal research identified several cases addressing the applicability of EPAâs stormwater discharge permitting requirements to various categories of industrial activity, although none that specifically addressed air transportation fa- cilities. California.âWhile not an aviation facility, Santa Monica Baykeeper v. Kramer Metals, Inc.,35 was a CWA citizen suit brought to enforce alleged violations at two scrap metal facilities related to exceedance of the California Water Boardâs gen- eral permit for industrial stormwater dischargers. 32 SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, supra note 17, at 154â 57. 33 Gen. NPDES Permit for Storm Water Discharges from Constr. Site Activities, supra note 19, at 4. 34 Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., supra note 20, at 129â31. 35 619 F. Supp. 2d 914 (C.D. Cal. 2009). One of the issues in the case concerned the CA GPâs technology-based effluent limitation that requires facility operators to reduce or prevent pollution associated with industrial activity through 1) implementation of best available tech- nology economically achievable (BAT) for toxic and nonconventional pollutants, and 2) the best conventional pollution control technology (BCT) for conventional pollutants. As the court noted, under the permit, an operator can comply with this requirement by developing and implementing an SWPPP that 1) complies with requirements in the permit, and 2) includes BMPs that achieve BAT/BCT.36 The environmental group plaintiff claimed that the defendant was in violation of this technology- based effluent limitation by referencing the benchmark levels set out in EPAâs MSGP for in- dustrial stormwater discharges and arguing that those benchmarks provide an objective standard to determine if a permittee has implemented BAT/BCT. The court noted that the CA GP does not incorporate the EPA MSGPâs benchmark lev- els, and that under the EPA MSGP, benchmark levels are distinct from effluent limitations. The court held that the EPA benchmarks are relevant guidelines that should be used to evaluate the efficacy of a facilityâs BMPs, but that samples in excess of those benchmarks do not necessarily constitute a violation of the CA GP; instead, a more comprehensive approach is necessary to as- sess compliance.37 New York.âIn 2006, in the context of renewing the individual SPDES stormwater permit for John F. Kennedy International Airport (JFK), NYSDEC determined that the permit required modification and made the draft modified permit available for public review. Comments were sub- mitted by various parties, including the operator of the airportâthe Port Authority of New York and New Jersey (Port Authority)âcertain airlines who are tenants at the airport, and two environ- mental groups. NYSDEC subsequently referred the modification proceeding for a public hearing and issues conference before an administrative law judge (ALJ). The ALJâs report notes that stormwater con- taining anti-icing and deicing materials is dis- charged from JFK into Jamaica Bay, which is part of the federally protected Gateway National Rec- reation Area and designated as a wildlife refuge. 36 Id. at 920. 37 Id. at 924â25.
10 A Port Authority representative discussed the BMPs and other steps taken to reduce impacts of deicing on Jamaica Bay. Two of the issues in dispute were that 1) the Port Authority desired to add the airlines as co- permittees, and 2) the airlines objected to permit language requiring tenants to comply with as- pects of the permit (referred to as âtenants shallâ language).38 The Port Authority representative stated that it would be a âlogical implication of Clean Water Act requirements to include airlines that engage in deicing operations as co-permittees because the airlines had control over these ac- tions.â However, the Port Authority ultimately agreed to drop this issue, acknowledging that the issue of co-permittees may not have been properly part of the proceeding because NYSDEC did not include it as part of the proposed permit modifica- tion. On the other hand, the Port Authority and the airlines agreed to accept the so-called âtenants shallâ language, although the airlines insisted that their agreement to this language did not con- stitute an admission regarding the enforceability of those provisions. An issue raised by one of the environmental groups was whether a permittee is subject to an enforcement action for violations of both the per- mit and the underlying law or regulations when there is a violation of a water quality standard in instances where there is no specific standard set forth in the permit. In response, NYSDEC staff stated their position that narrative water quality standards are incorporated into the SPDES per- mit for JFK, and the ALJ confirmed that âany vio- lation by the permittee of water quality standards is a violation of both the permit and the applicable statutes and regulations.â39 Washington.âMultiple parties, including a number of regulated companies and various envi- ronmental groups, filed administrative appeals with the Washington Pollution Control Hearings Board (PCHB) of the WA ISGP issued by Ecology in October 2009. The PCHB identified 71 legal issues that governed the proceedings and con- trolled the issues on appeal. The PCHB ultimately 38 It is not clear from the ALJâs report what permit conditions were included or were subject to the âtenants shallâ language, but it appears from the report that those conditions to monitoring and BMPs, as well as perhaps other issues. 39 Port Authority of New York (JFK) Summary Hear- ing Report and Order of Deposition, NEW YORK DEPâT OF ENVTâL CONSERVATION (Sept. 19, 2007). issued seven orders on summary judgment ad- dressing many of the issues raised by the parties, while requiring other issues to proceed to hearing. The following is a summary of the PCHBâs resolu- tion of four issues that appear to be most relevant to the scope of work of this project for the Airport Cooperative Research Program. â¢ Whether Ecologyâs post-permit issuance of an errata sheet eliminating permit coverage re- quirements for transportation facilities that have material handling facilities was invalid.40 â¢ PCHB found the errata sheet change made the terms of the permit consistent with the appli- cable definition for transportation facilities in 40 C.F.R. Â§ 122.26(b)(14)(viii) and granted summary judgment to Ecology on this issue. â¢ Whether the WA ISGP requires facilities to install BMPs that are not described in either the Western Washington or Eastern Washington Stormwater Management Manuals; and if so, whether the requirement is vague, unreasonable, and unlawful.41 â¢ PCHB found that the WA ISGP lawfully and validly requires permittees to install BMPs be- yond those required in the Stormwater Manage- ment Manuals. Furthermore, according to the PCHB, the WA ISGP term requiring permittees taking Level 3 corrective action response to im- plement BMPs beyond those in the Stormwater Management Manuals âis a necessary and rea- sonable part of the adaptive management re- sponse required of [the] permit.â42 The PCHB granted summary judgment to Ecology and denied Boeingâs motion to reconsider this issue.43 40 Copper Dev. Assoc., Inc., et al. v. Wash. Depât of Ecology, Wash. Pollution Control Hearings Board, PCHB Nos. 09-135 through 09-141, Order on Summary Judgment (Legal Issues No. 15, 24â25, 31, 44, 46â48, 56, 61â62, and 65â67), Jan. 5, 2011 (SJ Order) at 7â8. (Available on the Washington Pollution Control Hear- ings Board Web site: http://www.eluho.wa.gov/Board /PCHB.) 41 Id. at 12â14. 42 Id. at 14. 43 Copper Dev. Assoc., Inc., et al. v. Wash. Depât of Ecology, Wash. Pollution Control Hearings Board, PCHB Nos. 09-135 through 09-141, Findings of Fact, Conclusions of Law, and Order, Apr. 25, 2011 (Findings of Fact, Conclusions of Law, and Order), at 73. (Avail- able on the Washington Pollution Control Hearings Board Web site: http://www.eluho.wa.gov/Board/PCHB.)
11 â¢ Whether the permitâs failure to establish nu- meric water quality-based effluent limitations is invalid.44 â¢ PCHB found that Ecology reasonably deter- mined that application of BMPs would be effective in achieving compliance with water quality stan- dards after performing a generalized reasonable potential analysis on industrial stormwater dis- charges. Having made this determination, PCHB found that Ecology was not required to develop numeric effluent limitations, except for discharges to impaired water bodies, as required under Washington Revised Code Section 90.48.555(7). PCHB granted summary judgment to Ecology, except as to the development of numeric effluent limitations for certain discharges to impaired wa- ter bodies. â¢ Whether requiring source control and treat- ment BMPs âwith the goal of achieving the appli- cable benchmarkâ without defining specific BMPs or the level of adaptive management necessary to meet the state goal is valid.45 â¢ PCHB found that â[t]here is no legal re- quirement for Ecology to define in the [WA] ISGP the precise BMPs a permittee must install under any given set of circumstances.â PCHB also found that the WA ISGP âcorrectly places the burden on the permittee to meet [applicable] benchmarks through implementation of  adaptive manage- ment response.â46 PCHB granted summary judg- ment to Ecology and denied Boeingâs motion to reconsider this issue.47 The research did not find any Illinois or Texas administrative decisions or case law interpreting the Illinois General Permit for Stormwater Dis- charges from Industrial Activities, the Texas gen- eral permit for stormwater discharges associated with industrial activities, or EPA regulations regarding stormwater discharges associated with industrial activities at air transportation facili- ties. Airport Survey Telephone interviews were conducted with air- port representatives of San Francisco Interna- tional Airport (SFO), JFK, SeattleâTacoma Inter- national Airport (Sea-Tac), Chicago OâHare International Airport (OâHare), and Dallas/Fort 44 SJ Order at 16â17. 45 Id. at 18â20. 46 Id. at 19. 47 Findings of Fact, Conclusions of Law, and Order, at 73. Worth International Airport (DFW) regarding permitting strategies employed to encourage ten- ant compliance with the airportâs stormwater dis- charge permits. Some of the strategies employed at the airports surveyed include: â¢ Tenants obtain individual permit coverage. â¢ Tenants named as co-permittees on airport permit. â¢ Tenant compliance with airport SWPPP. â¢ Preparation of tenant SWPPPs. â¢ Pollution prevention teams comprised of ten- ant and airport authority representatives. â¢ Airport-issued permits for deicing operations. â¢ Airport inspections of tenant leaseholds. â¢ Monthly reporting of volumes of deicer ap- plied by tenants. â¢ Lease agreements requiring compliance with applicable laws and regulations. â¢ Violations for noncompliance with lease agreements. â¢ Sharing or assigning of costs associated with corrective actions and fines. A formal airport survey was conducted to as- certain the variability in permitting arrange- ments between airport owners and tenant opera- tors/service providers and to collect and organize information on the BMPs currently being imple- mented at airports. The survey was intended to elicit specific feedback on NPDES permit compli- ance and strategies used to enforce tenant com- pliance at large- and medium-sized airports. Of the airports surveyed, approximately half of the airport authorities indicated they were the sole permittees on stormwater permits for the air- port. In only one case were airport tenants named as co-permittees and in some situations, tenants are required to obtain their own permits for their specific activities. All of the airports have mecha- nisms in place to assist with tenant compliance with the applicable stormwater regulations; the most common being language in the lease agree- ments that reference stormwater regulation com- pliance. All respondents indicated that the stormwater permits require the airport authorities to have an SWPPP. There was clear indication that the re- sponsibility for SWPPP implementation lies with the airport authority, as the majority of the re- spondents expressed that they were responsible for preparing the SWPPP, with tenants covered under it and the airport overseeing compliance.
12 Some of the strategies employed by airport au- thorities for tenant implementation of SWPPPs include: â¢ Airport authority prepares the SWPPP, and all tenants must comply with its provisions. â¢ Airport authority prepares an SWPPP, and all tenants must comply with its provisions or they are allowed to prepare their own, provided it meets the minimum requirements of the airportâs plan. â¢ Airport and tenants jointly implement the SWPPP. â¢ Airport authority reviews the SWPPP of ten- ants required to have their own permit and SWPPP. â¢ Tenants prepare and implement their own SWPPP. All respondents indicated that the airport au- thority conducts inspections of tenant facilities. Approximately one-half of the respondents have tenant reporting requirements, and one-third of the respondents require tenants to submit their self-inspections to the airport. Most of the respondents indicated the use of some form of enforcement mechanisms. The ma- jority use warnings or notices of violation or de- mands for corrective actions to comply with lease obligations. Half of respondents use lease termi- nation, while one-third use fines. One respondent reported the use of water quality investigators who are licensed special police officers by the city and county and have the authority to issue cita- tions. The offending party is then required to ad- dress the citation in court. Many airport authorities have also imple- mented a variety of initiatives to promote tenant compliance with stormwater permit requirements or the SWPPP. Almost all of the airports use training and other initiatives, including aware- ness programs and meetings. Some of the challenges cited regarding tenant compliance with the stormwater permits include: â¢ Tenant turnover. â¢ Pursuit of enforcement action over third- party contractors or subtenants. â¢ Oversight and following up on noncompliance issues. â¢ Lease language that requires tenants to com- ply with federal, state, and local environmental regulations but does not specify what happens if there is noncompliance. When notices of alleged violations have been issued, all of the respondents indicated the notice was issued to the airport authority, and to a lesser degree, the notice was issued to tenants. From the exceptions noted, in one case the airport authority negotiated with the stateâs environmental author- ity to issue the notice to the airport authority, rather than the airport and all its tenants. The airport authority paid the penalty and costs were passed to tenants in the form of rates and charges. In the cases where the alleged violation was resolved via corrective action, the majority of the respondents indicated that the airport author- ity was responsible for implementing the correc- tive action. In a few cases, either the tenants implemented the action, or the solution was jointly implemented.