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13 I. BACKGROUND This digest is intended to clarify and document responsibility for implementation, and liability for enforcement, in connection with maintaining and executing NPDES stormwater permit require- ments, practices, and reporting at airports. If the airport owner alone is identified as the dis- charger/responsible party on the permit, the im- plication is that the federal or state regulatory authorities expect that the owner has tenant com- pliance assurances for general stormwater man- agement and implementation, operation, and maintenance of BMPs and also for stormwater permit compliance associated with on-property airport construction projects that may be covered under a stateâs general permit. As established by the Clean Water Act, the NPDES permit program controls water pollution by regulating point sources that discharge pollut- ants into waters of the United States. Most states are authorized to implement the NPDES permit program, including permitting for stormwater dis- charges. The 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 MSGP and 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. To address these airport/tenant legal responsi- bility/liability issues and requirements, some air- port owners currently manage overall stormwater program permitting and implementation at their airports, enforce the permit requirements at ten- ant facilities, and transfer the legal responsibility for compliance with stormwater regulations at the individual tenant-operated facilities to the ten- ants/operators through lease agreements or air- port operating permits. However, with the increasing and dynamic na- ture of regulatory enforcement efforts (Effluent Limitation Guidelines [ELGs], Total Maximum Daily Load [TMDLs], etc.), it is important to un- derstand if this practice or other methods of liabil- ity transfer are successful and defensible for air- port owners/operators and to provide airport owners with additional information, including: â¢ A better understanding of the various types of permitting arrangements/relationships between airport owners and tenant operators/service pro- viders. â¢ A summary of BMPs that airports currently implement, and require their tenants to imple- ment, to assist with and enforce tenant compli- ance with stormwater permit requirements. â¢ A comparison of individual state general per- mits and laws, rules, and regulations relative to state jurisdictional authority for imposing en- forcement action and liability directly on airport owners, related to tenant noncompliance issues. â¢ A summary of current NPDES, water quality, TMDL, and industrial stormwater management requirements that to some degree may impact airport operations, administration, and manage- ment activities. II. RESEARCH APPROACH The overall objective of the project is to sum- marize state and federal stormwater regulations and jurisdictional authority for imposing enforce- ment action and liability directly on airport own- ers related to tenant noncompliance issues and develop guidance for airport operators regarding effective BMPs and permitting arrangements for enforcing tenant compliance with stormwater permit requirements. 2.1 Information Gathering and Airport Survey Approach The project was completed in two Phases. Phase I consisted of background legal research related to federal and state regulations regarding stormwater permitting and jurisdictional author- ity. The research focused on a review of MSGPs issued by EPA and the states of California, New York, Washington, Illinois, and Texas. One air- port in each of the five states was also identified for telephone interviews regarding the stormwa- ter discharge permits for their facility. During Phase II, additional indepth legal research was conducted to understand the complexities of juris- dictional authority and state laws and regulations regarding the stormwater permitting programs implemented by EPA and individual states. Fi- nally, data was collected via an airport survey to ascertain the variability in permitting arrange-
14 ments between airport owners and tenant opera- tors/service providers and collect and organize information on the BMPs currently being imple- mented at airports. 2.2 Background Legal Research Current arrangements between airport owners and tenant operators/service providers related to stormwater, management, permitting, and com- pliance tend to vary greatly from state to state based on geographic location, state water quality issues, weather conditions, seasonal weather variations, size of airport, ownership and man- agement authority at airports, permitting author- ity, varying degrees of regulatory scrutiny, and variables that may include but are not limited to: â¢ Compliance history associated with previous pollutant releases. â¢ Proximity to receiving waters and/or high quality waters. â¢ Discharges to combined sewer systems within urban systems that need to address existing con- sent decrees associated with combined sewer sys- tems overflows to receiving waters. â¢ Disposal issues related to operating and maintaining structural BMPs and the material removed during maintenance operation. Limited background research was conducted related to federal and state regulations regarding stormwater permitting and jurisdictional author- ity in five select states. The states were selected to represent different geographic areas of the coun- try, with different climatic and hydrological char- acteristics. In addition, each of the five states has adopted its own general permits governing indus- trial stormwater discharges, pursuant to an EPA- approved NPDES permitting program, and in some cases independent state authority. EPAâs MSGP and stormwater permits for the states of California, New York, Washington, Illinois, and Texas were reviewed. In addition, telephone in- terviews were conducted with airport personnel from one large hub airport from each of the states, including SFO, JFK, Sea-Tac, OâHare, and DFW. The background legal research focused on ju- risdictional authority, distinctions between owner/tenant obligations, permit requirements specific to air transportation facilities, and per- mit-required BMPs. Airport interviews focused on permittee/co-permittee status, the airportâs ap- proach to SWPPP and BMP implementation and stormwater monitoring, the airportâs approach for managing tenant compliance with airport or indi- vidual SWPPPs, any mechanisms for managing risk associated with stormwater violations by ten- ants, and any enforcement actions related to per- mit conditions. 2.3 Indepth Legal Research During Phase II, additional indepth legal re- search was conducted to understand the complexi- ties of jurisdictional authority and state laws and regulations regarding the stormwater permitting programs implemented by EPA and individual states. The indepth legal research approach built upon the background research conducted in Phase I to encompass more extensive and indepth legal research regarding the stormwater permitting programs implemented by EPA and states to regulate stormwater discharges associated with industrial activity, with a particular focus on air transportation facilities. The scope of the legal research included identifying, reviewing, and summarizing federal and any state stormwater regulations, federal and state permit require- ments for stormwater discharges associated with industrial activity, and administrative decisions and case law interpreting stormwater permitting requirements. At the federal level, the research included a thorough review of EPAâs stormwater permitting regulations and its multisector general permit for stormwater discharges associated with industrial activity. The background research conducted dur- ing Phase I focused on a review of the permit pro- visions. The Phase II research built upon that foundation, focusing on a review of the federal regulations to identify and summarize any provi- sions that distinguish between the obligations of the facility owner and operator, describe any limi- tations on the scope of permit coverage at air transportation facilities, and identify any required or recommended structural or nonstructural BMPs at such facilities. The research also identi- fied benchmarks for effluent monitoring parame- ters and applicable effluent limitations at air transportation facilities and associated corrective action requirements.48 48 Based on the results of the background legal re- search, further research was not conducted regarding EPA or state general permits for stormwater discharges from construction sites or from municipal stormwater systems. The general stormwater permits for discharges from construction sites apply to site-specific develop- ment activities on a temporary basis and are not broadly applicable to activities at air transportation facilities. Similarly, it appears that stormwater dis- charges from air transportation activities are typically
15 In addition to reviewing EPAâs regulations and MSGP, the research included identifying, review- ing, and summarizing any decisions of EPAâs En- vironmental Appeals Board and federal case law interpreting EPAâs stormwater regulations or general stormwater permits. At the state level, further research was con- ducted on the five states considered in Phase I to identify and describe any independent state legal authority for regulating stormwater discharges associated with industrial activity. The orginal scope indicated that an additional five states would be identified for research; however, due to budgetary constraints, the research was limited to the five Phase I states. The research evaluated whether, in addition to general state laws governing water quality control or state laws or regulations governing wastewater discharge permit- ting, the subject states have laws or regulations that es- tablish specific substantive or procedural requirements applicable to permitting discharges of stormwater associ- ated with industrial activity. As with the research at the federal level, inde- pendent state legal authority and the state gen- eral permits for stormwater discharges associated with industrial activity were reviewed. This re- search built upon the foundation established dur- ing Phase I to identify and summarize any regula- tions that distinguish between the obligations of facility owner and operator, describe any limita- tions on the scope of permit coverage at air trans- portation facilities, and identify any required or recommended structural or nonstructural BMPs at such facilities. The research also identified benchmarks for effluent monitoring parameters and applicable effluent limitations at air trans- portation facilities and associated corrective ac- tion requirements. The state level research also included identify- ing, reviewing, and summarizing any state ad- ministrative decisions and case law interpreting the stateâs stormwater general permits, EPAâs stormwater regulations, and any independent state legal authorities relied on by the state in regulating stormwater discharges. 2.4 Airport Survey A survey of select airports was conducted to col- lect information regarding airport permits, tenant agreements, and BMPs for permit compliance. regulated under general or individual permits for stormwater discharges associated with industrial activ- ity and are not also covered under permits regulating stormwater discharges from municipal stormwater sys- tems. The survey built upon the telephone surveys con- ducted during Phase I to obtain more detailed in- formation and expand the survey population. The survey was comprised of questions on the follow- ing subjects: Airport Information Respondent information Operator information Key stormwater permitting issues Tenant Information Number Types Operations Permit Information General versus individual Permitting authority Co-permittee status Recordkeeping requirements SWPPP requirements Effluent monitoring and reporting requirements Corrective action requirements BMPs Nonstructural Structural Effectiveness Issues and challenges Initiatives Enforcement Airport/External authority Orders/Violations Litigation Settlement Airport Agreements with Tenants Lease agreements Operating agreements Airport permits Enforcement mechanisms Effectiveness Issues and challenges Initiatives The Phase II survey expanded upon the tele- phone calls conducted during Phase I and in- cluded questions in a variety of formats to gather responses that were consistent and comparable. The survey consisted of 37 questions and was de- signed with a completion time of no more than 20 minutes.