Analysis of Federal Laws, Regulations, Case Law, and Survey of Existing Airport NPDES Permits Regarding Tenant-Operator Responsibilities under NPDES and Stormwater Management BMPS under Owner/Airport's Operating Permits (2015)

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16 The survey population was established by downloading the list of airports with stormwater discharge permits from EPA’s Permit Compliance System (PCS) database. Medium and large hub airports were sorted by type of permit into three categories: 1) general permit, 2) individual permit with the airport operator as the sole permittee, and 3) individual permit with the airport operator and other entities as co-permittees. The survey sample size was established based on the following considerations: 1) total number of airports in each of the permit categories, 2) need to balance the accuracy of the survey with the pro- ject objectives and the available budget and schedule to complete the survey, and (3) limit of a total of 20 airports. The survey was distributed to 20 airports identified in Table 1 (see Attachment). The surveys were developed using a Web-based tool and distributed via email with a cover letter providing background on the ACRP program and the importance of this project. A response rate of 80 percent was targeted. After data was collected and compiled in a da- tabase for analysis, basic frequency counts and cross-tabulation were performed. More sophisti- cated statistical analyses were not performed due to the varied nature of the responses. No issues were encountered during survey de- velopment or launch. III. FINDINGS 3.1 Background Legal Research The background legal research reviewed the requirements of the MSGPs issued by EPA and the individual states, focusing on those require- ments specific to Sector S Air Transportation Fa- cilities where applicable and on the following is- sues: • Jurisdictional authority. Do the state-issued general permits cite any state-law authority or are such permits issued solely pursuant to the CWA? • Do the permit application forms (including notices of intent), reporting requirements, or terms of the permits make distinctions between the obligations imposed on or responsibilities of the owner of the property from which stormwater associated with industrial activity is discharged and the operator of the industrial activity from which there is a stormwater discharge covered by the permit? • What specific permit requirements apply to air transportation facilities (Sector S under EPA's MSGP for Stormwater Discharges Associated with Industrial Activity)? What specific activities or operational areas at air transportation facilities are subject to regulation under the general per- mit? • Does the permit mandate specific BMPs or is the development of BMPs left up to the discretion of the permittee in preparing an SWPPP for its facility? A summary of the federal and state stormwater permit review findings is provided in Table 2 (see Attachment) and discussed below. Detailed sum- maries of the state laws and regulations regard- ing the stormwater permitting programs imple- mented by EPA and individual states are provided in Section 3.2. 3.1.1 Jurisdictional Authority 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. EPA’s regu- lations allow authorized states to issue general or individual permits to regulate stormwater dis- charges that implement the regulatory standards promulgated by EPA and any independent state laws or regulations governing water quality. 3.1.2 Owner Versus Tenant Obligations Industrial Stormwater General Permits Under EPA’s MSGP and the states surveyed as part of the background legal research (California, New York, Washington, Illinois, and Texas), the operator of the facility is responsible for obtaining coverage under both industrial general permits. EPA and New York’s MSGPs contain specific lan- guage that when a facility or activity is owned by one person but operated by another person, it is the operator's duty to obtain a permit. The terms “owner” and “operator” are often used in conjunc- tion, separated by an “or” or “/” through permit language, and EPA Form 1 is the only industrial permit application form that distinguishes the owner/operator relationship. California’s indus- trial permit indicates that the owner is typically the operator. EPA, New York, and Texas’s MSGPs state that airport management and tenants of the airport are encouraged to apply as co-permittees and work in partnership to implement the SWPPP. EPA and New York’s MSGPs require airport and tenant's SWPPPs to be coordinated with and inte-

17 grated with the SWPPP for the entire airport. The Texas MSGP recommends implementation of a shared SWPPP, but states that even if the airport authority and tenants share an SWPPP, tenants that meet applicability requirements must obtain coverage. Further, if the airport authority, ten- ants, and other Fixed Base Operators (FBOs) share an SWPPP, the tenants and FBOs that con- duct deicing operations must provide monthly de- icing records to the airport authority. The New York MSGP also requires tenants and FBOs to provide monthly records of deicers used to the air- port authority for incorporation into the airport SWPPP. The Washington and Illinois MSGPs refer to the permittee as the “owner” or “operator” and do not contain specific language regarding tenant responsibilities. Construction General Permits The operator of the construction site is respon- sible for obtaining permit coverage under EPA, Washington, and Texas’s CGPs. California’s CGP states that compliance with a construction permit is the responsibility of the Legally Responsible Person (LRP), who is typi- cally the property owner. The Notice of Intent (NOI) requires both owner and contrac- tor/developer information and the applicant must identify a qualified person who has been assigned responsibility to ensure full compliance with the permit and to implement all elements of the SWPPP. The New York CGP defines owner or operator as “the person, persons or legal entity which owns or leases the property on which the construction activity is occurring; and/or an entity that has op- erational control over the construction plans and specifications, including the ability to make modi- fications to the plans and specifications." The NOI is completed by the "owner/operator" and the ap- plication does not distinguish the separate enti- ties. Illinois requires permit coverage to be obtained by the owner. All contractors and subcontractors identified in the SWPPP must sign a copy of the following certification statement before conduct- ing any professional service at the site identified in the SWPPP: "I certify under penalty of law that I understand the terms and conditions of the gen- eral [NPDES] permit (ILR10) that authorizes the storm water discharges associated with industrial activity from the construction site identified as part of this certification."49 3.1.3 Scope of Permit Industrial Stormwater General Permits Each of the permits has similar requirements for the development and implementation of a SWPPP and some level of monitoring and inspec- tions. Requirements specific to Sector S are sum- marized below. Each of the MSGPs authorizes stormwater discharges from those portions of the air transpor- tation facility that are involved in vehicle mainte- nance (including vehicle rehabilitation, mechani- cal repairs, painting, fueling, and lubrication); equipment cleaning operations; or deicing/anti- icing operations. EPA, New York, and Washing- ton’s MSGPs require air transportation facilities that apply greater than 100,000 gallons of glycol and/or 100 tons of urea annually to conduct benchmark monitoring of deicer-related com- pounds. The Texas MSGP requires benchmark monitoring only if greater than 100,000 gallons of ethylene glycol and/or 100 tons of urea are applied annually. California requires all air transporta- tion facilities to conduct monitoring for deicing- related compounds but does not impose bench- marks for deicer-related compounds. Illinois re- quires all air transportation facilities that conduct deicing to conduct monitoring for deicer-related compounds during the permit application phase but does not require additional benchmark moni- toring throughout the permit term. In addition, California and Washington require benchmark monitoring for various pollutants at all industrial facilities, including air transportation facilities. While each of the permits requires regular in- spections, EPA and New York’s MSGP require inspections to be conducted once per month dur- ing the deicing season and the annual inspection to be conducted during a period of actual deicing. The Texas MSGP requires weekly inspections during the deicing season and specifically re- quires permittees to maintain records of the types and monthly quantities of deicing chemicals used. 49 Gen. NPDES Permit for Storm Water Discharges from Construction Site, ILL. ENVTL. PROTECTION AGENCY DIV. OF WATER POLLUTION CONTROL, at 8.

18 Construction General Permits None of the CGPs contain specific requirements for air transportation facilities, with the exception of New York, which includes airports on the list of construction activities that require an SWPPP that includes postconstruction stormwater man- agement practices. 3.1.4 Best Management Practices Industrial Stormwater General Permits The EPA and state MSGPs detail standard BMPs that must be implemented as part of an SWPPP, including, but not limited to, good house- keeping, minimizing exposure, preventative main- tenance, spill prevention and response, and struc- tural and nonstructural controls. The MSGPs for EPA, New York, and Texas detail specific BMPs to be implemented by air transportation facilities. Texas also requires an annual evaluation of prac- tices that reduce the amount of chemical used or otherwise lesson environmental impact. Washing- ton and California do not require additional BMPs specific to air transportation facilities. Construction General Permits None of the CGPs require specific BMPs to be implemented at air transportation facilities. 3.2 Indepth Legal Research Results Indepth legal research was conducted on 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: • Identify any provisions of EPA’s regulations, EPA’s multi-sector industrial stormwater general permit, or any industrial stormwater general permit issued by the selected states that distin- guish between the obligations of a facility owner and a facility operator. • Identify any independent state legal author- ity for regulating stormwater discharges associ- ated with industrial activity. • Identify and describe any limitations on the scope of stormwater permit coverage at air trans- portation facilities. • Identify any benchmarks for effluent moni- toring parameters, or any numerical effluent limi- tations, in industrial stormwater general permits applicable to air transportation facilities and any associated corrective action requirements. • Identify any required or recommended BMPs applicable to air transportation facilities in an industrial stormwater general permit. • Summarize any administrative or judicial de- cisions interpreting EPA’s stormwater regula- tions, EPA’s industrial stormwater general per- mit, or any industrial stormwater general permit issued by the selected states. 3.2.1 Clean Water Act Industrial Stormwater Permit Requirement Section 402(p) of the CWA, 33 U.S.C. § 1342(p), requires EPA, or states with an EPA-approved NPDES permit program, to issue permits for stormwater discharges, including stormwater dis- charges associated with industrial activity. In 1990, EPA issued regulations, which are codified at 40 C.F.R. § 122.26, implementing Clean Water Act Section 402(p) and establishing permit re- quirements for stormwater discharges. The regu- lations provide that “[d]ischargers of stormwater associated with industrial activity…are required to apply for an individual permit or seek coverage under a promulgated stormwater general per- mit.”50 EPA first issued an MSGP for stormwater dis- charges associated with industrial activity in 1995; EPA reissued that MSGP in 2000 and 2008.51 EPA’s MSGP applies in areas of the coun- try where EPA remains the NPDES permitting authority, which includes four states (Idaho, Mas- sachusetts, New Hampshire, and New Mexico); the District of Columbia; Indian country; and cer- tain U.S. territories. In September 2013, EPA proposed its 2013 MSGP for stormwater discharges associated with industrial activity.52 The comment period on the 2013 Draft MSGP closed on December 6, 2013. EPA has not yet adopted the 2013 MSGP. EPA’s stormwater regulations define the term “stormwater discharges associated with industrial activity” to mean “the discharge from any convey- ance that is used for collecting and conveying 50 40 C.F.R. § 122.26(c) (2014). 51 Availability of the 2008 MSGP was announced in 73 Fed. Reg. 56,572-56,578 (Sept. 29, 2008). EPA also published a general Fact Sheet for the 2008 MSGP. A sector-specific Fact Sheet for air transportation facili- ties was published by EPA in Dec. 2006. 52 Notice of the 2013 Draft Permit was announced in 78 Fed. Reg. 59,672-59,677 (Sept. 27, 2013).

19 storm water and that is directly related to manu- facturing, processing or raw materials storage areas at an industrial plant.”53 The regulatory definition also includes descrip- tions of a number of categories of facilities that are considered to be engaging in “industrial activ- ity,” including air transportation facilities: which have vehicle maintenance shops, equipment clean- ing operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance54 (including vehicle rehabilitation, mechani- cal repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified [as a category of industrial activ- ity in the regulatory definition] are associated with indus- trial activity.55 In issuing the 2000 MSGP, EPA clarified the types of activities that air transportation facility permittees primarily engage in to include: • Scheduled and nonscheduled air transporta- tion and air courier. • Airports and flying fields, except those main- tained by aviation clubs. • Airport terminal services, including nongov- ernment air traffic control, aircraft storage at air- ports, aircraft upholstery repair, air freight han- dling at airports, airport hangar rental, airport leasing, and hangar operations. • Airport and aircraft service and maintenance, including aircraft cleaning and janitorial service, aircraft servicing and repairing, vehicle mainte- nance shops, material handling facilities, equip- ment clearing operations, and airport and aircraft deicing and anti-icing.56 53 40 C.F.R.§ 122.26(b)(14) (2014). 54 In the comments/response section of the initial rulemaking for stormwater regulations, one commenta- tor asked for clarification of the term “vehicle mainte- nance” as it applies to transportation facilities. EPA’s response was that the phrase refers to: “the rehabilita- tion, mechanical repairing, painting, fueling, and lubri- cating of instrumentalities of transportation located at the described facilities.” 55 Fed. Reg. 47,990, 48.013 (Nov. 16, 1990) (Notice of Final Rulemaking). However, EPA declined to write a specific definition into the regu- lation, because it stated the phrase “should not cause confusion as a descriptive term.” Id. 55 40 C.F.R. § 122.26(b)(14)(viii) (2014). 56 65 Fed. Reg. 64,746, 64,844 (Oct. 30, 2000) (Notice of Final NPDES MSGP for Industrial Activities, Part 6.S “Sector S–Air Transportation”). 3.2.2 EPA Regulations and Industrial General Permits Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator EPA’s regulation governing stormwater dis- charges does not define the terms “owner” or “op- erator” or distinguish between the obligations of owners and operators. Rather, as noted above, the regulatory provisions addressing application re- quirements for stormwater discharges associated with industrial activity apply to “dischargers” of such stormwater.57 However, the term “discharg- ers” also is not defined in the regulation. EPA has promulgated regulatory definitions applicable to the entire NPDES permit program, including stormwater discharges associated with industrial activity.58 Although those general NPDES regulations also do not define “dis- charger,” the term “owner or operator” is defined to mean “the owner or operator of any ‘facility or activity’ subject to regulation under the NPDES permit program.”59 This definition suggests that it is not impor- tant, for regulatory purpose, who owns the land on which the airport is located or who operates the air terminals or even the aircraft. With re- spect to who may be deemed an owner, what is important is who owns the stormwater collection and conveyance systems (i.e., drainage pipes, cul- verts, stormwater collection ponds, outfalls) and those portions of the airport involved in vehicle maintenance, equipment cleaning, or deicing op- erations. In many cases this would likely be the same entity that owns the land on which the air- port is located, but in other cases a tenant could be an “owner,” particularly if the tenant con- structed or owns portions of the stormwater col- lection or conveyance system as part of its lease- hold. 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 “authority,” with air- line carrier and other fixed base operator “ten- 57 40 C.F.R. § 122.26(c) (2014). 58 Id. § 122.2. 59 Id.

20 ants.”60 Specifically, the Notice states: “Where an airport has multiple operators (airport authority and tenants) that have storm water discharges associated with industrial activity…, each opera- tor is required to apply for coverage under an NPDES storm water permit.”61 Thus, any tenant that engages in vehicle maintenance, equipment 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. As noted above, dischargers of stormwater as- sociated with industrial activity are required to either apply for an individual permit or seek cov- erage under a stormwater general permit.62 Though this research has focused on the require- ments contained in EPA’s multi-sector general permits for stormwater discharges associated with industrial activity and the industrial general permits issued by selected states, EPA’s regula- tions governing applications for individual per- mits contain a provision recognizing that there may be a distinction between a facility owner and operator. Specifically, though the requirement to submit an application for an individual permit applies to “[a]ny person who discharges or pro- poses to discharge pollutants,”63 the regulations further provide that “[w]hen a facility or activity is owned by one person but is operated by another person, it is the operator’s duty to obtain a per- mit.”64 Although EPA’s regulation governing stormwa- ter discharges does not distinguish between an owner or operator, the regulation does define the term “co-permittee” to mean “a permittee to a NPDES permit that is only responsible for permit conditions relating to the discharges for which it is an operator.”65 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 “each individual party, whether a co- 60 60 Fed. Reg. 50,804, 50,998 (Sept. 29, 1995) (No- tice of Final NPDES MSGP for Industrial Activities, Part VIII.S “Storm Water Discharges Associated With Industrial Activity From Vehicle Maintenance Areas, Equipment Cleaning Areas, or Deicing Areas Located at Air Transportation Facilities”). 61 Id. 62 40 C.F.R. § 122.26(c) (2014). 63 Id. § 122.21(a). 64 Id. § 122.21(b) (emphasis added). 65 40 C.F.R. § 122.26(b)(1) (2014). permittee or a separate permittee, must submit a NOI to be covered under [a MSGP].”66 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.67 EPA “encourages co-permittee status because this approach to permit coverage promotes better coordination of the pollution prevention plan measures and possibly better control of the storm water discharges.”68 In 2000, EPA added a re- quirement that “[i]f an airport’s tenant has a SWPPP for discharges from their [sic] own areas of the airport, that SWPPP must be integrated with the plan for the entire airport.”69 Describe Any Limitations on Scope of Permit Cov- erage at Air Transportation Facilities EPA’s 2008 MSGP applies to stormwater dis- charges from only those portions of the air trans- portation facility that are involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrica- tion); equipment cleaning operations; or deicing operations (including removal and prevention of accumulation unless otherwise noted). The permit does not authorize discharges of aircraft, ground vehicle, runway, and equipment washwaters or dry weather discharge of deicing chemicals.70 66 60 Fed. Reg. 50,804, 50,998 (Description of Com- ments and Responses Regarding Air Transportation Facilities). 67 60 Fed. Reg. at 51,103 (2014). 68 Id.; see also Multi-Sector Gen. Permit for Stormwa- ter Discharges Associated with Indus. Activity § 8.S.4, supra note 21; Multi-Sector Gen. Permit for Stormwater Discharges Associated with Indus. Activity § 8.S.4, su- pra note 22. 69 65 Fed. Reg. 64746, 64844 (Oct. 30, 2000) (Notice of Final NPDES MSGP for Industrial Activities, Part 6.S “Sector S–Air Transportation”); see also Multi- Sector Gen. Permit for Stormwater Discharges Associ- ated with Indus. Activity § 8.S.4, supra note 21; Multi- Sector Gen. Permit for Stormwater Discharges Associ- ated with Indus. Activity § 8.S.4, supra note 22. 70 Discharge resulting from snowmelt is not a dry weather discharge. (EPA considers snowmelt a storm- water discharge. See Ready Mixed, Crushed Stone and Sand and Gravel Non-Storm Water Discharges Quick Reference Guide, at 1 (July 2009), available at http://www.epa.gov/compliance/resources/publications/a ssistance/sectors/readymix/nonswreferenceguide.pdf.

21 Such discharges must be covered by a separate NPDES permit.71 EPA’s 2013 Draft MSGP is comparable in scope of coverage to the 2008 MSGP, but adds the fol- lowing limitation: The proposed permit does not authorize discharges of collected airport deicing fluid directly to waters of the United States.72 EPA’s 2008 MSGP73 requires air transportation sector permittees to comply with “sector-specific requirements associated with [their] primary industrial activity and any co-located industrial activities.”74 “Co-located industrial activities” are “any industrial activities, excluding [] primary industrial activity(ies), located on-site that are defined by the stormwater regulations at 122.26(b)(14)(i)-(ix) and (xi).”75 “An activity at a facility is not considered co-located if the activity, when considered separately, does not meet the description of a category of industrial activity cov- ered by the stormwater regulations.”76 Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities, and Any Associated Corrective Action Requirements EPA’s 2008 MSGP Sector-specific benchmarks applicable to air transportation facilities:77 • Deicing-related parameters and benchmark monitoring concentrations: - Biochemical Oxygen Demand—30 mg/L. - Chemical Oxygen Demand—120 mg/L. - Ammonia—2.14 mg/L. - pH—6.0-9.0 standard units (s.u.). 71 See Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.2, supra note 21. 72 See Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.7.2, supra note 22. 73 No change to this provision was proposed in the 2013 Draft MSGP. 74 Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.4, supra note 21 (emphasis in original). 75 Id. at A-2. 76 Id. 77 Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.6, supra note 21. Corrective Action Requirements Part 3 of the MSGP states the following gener- ally applicable corrective action requirements (i.e., these requirements are not specific to air transportation facilities):78 • Conditions requiring the permittee to review and revise the selection, design, installation, and implementation of control measures to ensure elimination of condition in the future: - Unauthorized release or discharge at the facility. - Discharge in violation of numeric efflu- ent limits.79 - Permittee becomes aware, or EPA determines, that control measures are not strin- gent enough for discharge to meet applicable wa- ter quality standards. - Facility inspection or evaluation deter- mines that modifications to control measures are necessary to meet non-numeric effluent limits in the permit. - Improper operation and maintenance of control measures. • Conditions requiring the permittee to review the selection, design, installation, and implemen- tation of control measures to determine if modifi- cations are necessary to meet effluent limits in the permit: - Construction or change in design, opera- tion, or maintenance at facility significantly increases quantity of pollutants discharged. - Average of four quarterly sampling results exceeds an applicable benchmark. • Corrective action deadlines: - Permittee must document discovery of any condition triggering corrective action re- quirement within 24 hours of discovery. Report must include: 1) identification of condition trigger- ing need for corrective action review, 2) descrip- tion of problem, and 3) date that the problem was identified. - Permittee must document corrective action (or basis for determination of no corrective action) within 14 days of discovery of condition. Report must include: 1) summary of corrective 78 Id. §§ 3.1-3.6. 79 Table 2.1 refers to applicable effluent limitations contained in regulations; industrial activities associated with air transportation facilities are not identified in Table 2.1.

22 action taken or to be taken (or basis for determi- nation of no corrective action); 2) notice of whether SWPPP modifications are required as a result of discovery or corrective action; 3) date corrective action was initiated; and 4) date correc- tive action was completed or is expected to be completed. - If permittee determines that changes are necessary following review, modifications to con- trol measures must be made before the next storm event if possible, or as soon as practicable follow- ing that storm event. • Corrective action documentation must be in- cluded in the annual report with a copy retained onsite with the SWPPP. • Failure to take corrective action when re- quired is considered a permit violation; corrective action taken does not remove a permit violation that was the event triggering a review. • If triggering corrective action is linked to an outfall that represents other substantially identi- cal outfalls, the review must assess the need for corrective action for each outfall represented by the outfall that triggered the review; necessary changes to control measures must be made before next storm event if possible. EPA’s 2013 Draft MSGP Sector-specific benchmarks applicable to air transportation facilities: EPA’s 2013 Draft MSGP includes the 2008 MSGP deicing-related parameters and benchmark monitoring concentrations and adds the follow- ing:80 • Existing and new primary airports with 1,000 or more annual jet departures that discharge wastewater associated with airfield pavement de- icing commingled with stormwater must either use non-urea-containing deicers or meet a 14.7 mg/L daily maximum effluent limit for ammonia as nitrogen.81 80 See Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.7, supra note 22. 81 See 40 C.F.R. § 449.10(a) (2014) (effluent limita- tions representing best available technology economi- cally achievable from deicing operations at airports); Multi-Sector Gen. Permit for Stormwater Discharges Associated with Indus. Activity § 8.S.7.1, supra note 22. • Airports meeting the definition of a new source with 1,000 annual nonpropeller aircraft departures located in cold climate zones (except Alaska) must collect 60 percent of aircraft deicing fluid after deicing and meet the following numeri- cal effluent limitations for Chemical Oxygen De- mand (COD) at the location where the effluent leaves the onsite treatment system utilized for meeting these requirements and before commin- gling with any nondeicing discharge: 271 mg/L as a daily maximum and 154 mg/L as a weekly aver- age.82 Corrective Action Requirements83 • When the permittee becomes aware that any of the following conditions have occurred, the permittee must review SWPPP to determine if and where revisions may need to be made to eliminate the condition, prevent its reoccurrence, and ensure that effluent limits are met: - Unauthorized release or discharge at the facility. - Discharge in violation of numeric efflu- ent limit.84 - Control measures are not stringent enough for discharge to meet applicable water quality standards or nonnumeric effluent limits in the permit. - Required control measure was never installed, was installed incorrectly, or is not being properly operated or maintained. - Visual assessments indicate obvious signs of stormwater pollution. - Construction or change in design, opera- tion, or maintenance at facility significantly changes the nature of pollutants discharged in stormwater from the facility or significantly in- creases quantity of pollutants discharged. - Average of four quarterly sampling results exceeds an applicable benchmark. • Corrective action deadlines: 82 See 40 C.F.R. § 449.11(a)(2) (2014) (new source performance standards for deicing operations at air- ports); Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.7.2, supra note 22. 83 Id. §§ 4.1-4.5. 84 Table 2-1 refers to applicable effluent limitations contained in regulations, including in 40 C.F.R. §§ 449.1–449.20 for 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.

23 - In all circumstances, permittee must immediately (same work day, if possible; other- wise on the following work day) take all reason- able steps necessary to minimize or prevent dis- charge of pollutants until permanent solution is installed and made operational. - Must document existence of any condi- tion triggering corrective action requirement within 24 hours of discovery; not required to sub- mit documentation to EPA unless requested to do so. The documentation must include: 1) identifica- tion and description of condition triggering need for corrective action review, 2) date problem was identified, and 3) discussion of whether triggering condition requires corrective action. For spills and leaks, documentation must include response ac- tions, date and time cleanup was completed, noti- fications made, and staff involved. Any measures taken to prevent reoccurrence of such releases must also be included. - Must document corrective action (or ba- sis for determination of no corrective action) within 14 days of discovery of condition. Docu- mentation must include: 1) dates when each cor- rective action was initiated and completed (or ex- pected to be completed), and (2) if applicable, why it is infeasible to complete necessary installations or repairs within the 14-day timeframe and docu- mented schedule for installing operational con- trols as soon as practicable after 14-day time- frame. - Failure to take corrective action when required is considered a permit violation; taking corrective action does not remove a permit viola- tion that was the event triggering a review. - If triggering corrective action is linked to an outfall that represents other substantially identical outfalls, review must assess the need for corrective action for each outfall represented by the outfall that triggered the review. Necessary changes to control measures must be made before the next storm event if possible. Identify Any Required or Recommended BMPs at Air Transportation Facilities 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. However, the 2006 Fact Sheet does specify that first consideration should be given for pollution prevention BMPs, including:85 85 FACT SHEET SERIES SECTOR S, at 3-8, supra note 31. • Regular cleanup, collection, and containment of debris in storage areas. • Other housekeeping practices. • Spill control. • Employee training. • Engineered structures intended to treat stormwater runoff or mitigate the effects of increased stormwater runoff peak rate, volume, and velocity. BMPs must be selected and implemented to address the following:86 • Good housekeeping practices: - Establishing protocols to reduce the pos- sibility of mishandling materials or equipment. - Training employees in good housekeep- ing. - Schedule for regular pickup and disposal of garbage and waste materials. - Routine inspection of drums, tanks, and containers for leaks and structural conditions. - Containing and covering garbage, waste materials, and debris. • Minimizing exposure of potential pollutant sources to precipitation: - Covering materials or activities with temporary structures (e.g., tarps) when wet weather is expected. - Moving materials or activities to existing or permanent structures. - Keeping dumpster lids closed. • Erosion and sediment control: - Erosion control—seeding, mulching, and Sodding. - Sediment control should be used to back up erosion control BMPs—silt fences, sediment ponds, and stabilized entrances. • Management of runoff—SWPPP must con- tain narrative evaluation of appropriateness of stormwater management practices that divert, infiltrate, reuse, or otherwise manage stormwater runoff so as to reduce the discharge of pollutants. Measures are highly site-specific but may include: - Vegetative swales. - Collection and reuse of stormwater. - Inlet controls. - Snow management. - Infiltration devices. - Wet retention measures. 86 Id.

24 - Preventative maintenance records or log- books. - Regular facility inspections. - Spill prevention and response. - Employee training. The 2008 MSGP and the Draft 2013 MSGP also suggest qualitative technology-based effluent lim- its to implement the following “Good Housekeep- ing Measures:”87 • Aircraft, Ground Vehicle, and Equipment Maintenance, Cleaning, and Storage Areas; sug- gestions include: - Performing maintenance activities indoors. - Maintaining organized inventory of ma- terial used in maintenance areas. - Draining all parts of fluids prior to dis- posal. - Prohibiting practice of hosing down apron or hangar floor. - Using dry cleanup methods. - Collecting stormwater runoff from main- tenance area and providing treatment or recy- cling. - Demarcation of cleaning areas on the ground using signage or other means. - Storage of aircraft and ground vehicles indoors. - Use of drip pans for collection of fluid leaks. - Use of perimeter drains, dikes, or berms surrounding storage areas. • Material Storage Areas; suggestions include: - Storing materials indoors. - Storing waste materials in a centralized location. - Installing berms or dikes around storage areas. • Airport Fuel System and Fueling Areas; sug- gestions include: - Implementing spill and overflow prac- tices, such as placing absorptive materials be- neath aircraft during fueling operations. - Using only dry cleanup methods. 87 Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.3, supra note 21; Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.3, supra note 22. - Collecting stormwater runoff. • Source Reduction (for runway or aircraft deic- ing); suggestions include: - Use of potassium acetate, magnesium acetate, calcium acetate, or anhydrous sodium acetate to replace ethylene glycol, propylene gly- col, and urea. - Metered application of chemicals. - Pre-wetting dry chemical constituents prior to application. - Installing a runway ice detection system. - Implementing anti-icing operations as a preventative measure against ice buildup. - Reducing deicing fluid use through forced-air deicing systems, computer-controlled fixed-gantry systems, infrared technology, use of hot water, varying glycol content to air tempera- ture, use of enclosed-basket deicing trucks, me- chanical methods, solar radiation, hangar storage, and use of aircraft covers and thermal blankets for MD-80s and DC-9s. - Use of ice-detection systems and airport traffic flow strategies and departure slot alloca- tion systems. • Management of Runoff; suggestions include: - Dedicated deicing facility with a runoff collection and recovery system. - Use of vacuum/collection trucks. - Storing contaminated stormwater/ deicing fluids in tanks and releasing controlled amounts to a publicly owned treatment works. - Collecting contaminated runoff in a wet pond for biochemical decomposition. - Directing runoff into vegetative swales or other infiltration measures. - Recovering deicing materials when applied during nonprecipitation events. - Recycling used deicing fluid. The 2008 MSGP and the Draft 2013 MSGP also include the following inspection requirements spe- cific to air transportation facilities:88 • Routine facility inspections must be con- ducted at least monthly during the deicing season (October–April for most mid-latitude airports); they should be expanded, as needed, to include all 88 Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.5, supra note 21; Multi-Sector Gen. Permit for Stormwater Dis- charges Associated with Indus. Activity § 8.S.5, supra note 22.

25 months during which deicing chemicals may be used. • Comprehensive annual inspections should be conducted during period of actual deicing opera- tions, if possible; otherwise, during the season when deicing takes place and deicing materials and equipment are in place.89 Summarize Any Administrative or Judicial Deci- sions Interpreting EPA’s Regulations or MSGP Industrial Stormwater Permits The legal research identified several cases ad- dressing the applicability of EPA’s stormwater discharge permitting requirements to various categories of industrial activity, although none that specifically addressed air transportation fa- cilities. For example, the Ninth Circuit has at least twice invalidated EPA rules exempting spe- cific categories from permitting requirements.90 More recently, two cases have addressed EPA’s regulatory definition of “associated with indus- trial activity” and interpreted the term narrowly. In Decker v. Northwest Enviornmental Defense Center,91 the Supreme Court held that discharges of channeled stormwater from logging roads were not “associated with industrial activity,” as de- fined in EPA’s stormwater regulations, 40 C.F.R. § 122.26(b)(14). Therefore, such discharges are not subject to Clean Water Act permit requirements. The Court focused on that portion of the regula- tory definition of “associated with industrial activ- ity” referring to discharges “from any conveyance that is used for collecting and conveying stormwa- ter and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.”92 The Court found that EPA could reasonably conclude that this regulation “extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities,” and not to tempo- rary logging installations that are directly related 89 This additional SWPPP requirement for compre- hensive annual inspections does not appear in the 2013 Draft MSGP. 90 See, e.g., NRDC v. U.S. EPA, 526 F.3d 591 (9th Cir. 2008) (vacating rule exempting stormwater dis- charge of sediment from oil and gas construction activi- ties from permitting requirement); NRDC v. U.S. EPA, 966 F.2d 1292 (9th Cir. 1992) (invalidating rule exempt- ing construction sites of five acres or less from permit- ting requirements). 91 133 S. Ct. 1326 (2013). 92 Id. at 1337. to harvesting raw materials, rather than to “manufacturing,” “processing,” or “raw materials storage areas.”93 A similarly narrow view of the regulatory defi- nition of “associated with industrial activity” was adopted in Ecological Rights Foundation v. Pacific Gas & Electric Co.94 in which the Ninth Circuit rejected the argument that a Clean Water Act permit was required for stormwater discharges from utility poles. The court noted, among other things, that utility poles do not fit within EPA’s definition of “discharge associated with industrial activity,” and that “[a] utility pole is not a ‘con- veyance…used for collecting and conveying storm water,’ nor is it ‘directly related to manufacturing, processing or raw materials storage at an indus- trial plant.’”95 The decisions in Decker and Ecological Rights Foundation support a narrow reading of the term “associated with industrial activity,” including limiting the scope of coverage of a stormwater permit at air transportation facilities only to those portions of the facility involved in vehicle mainte- nance, equipment cleaning operations, or deicing operations (rather than applying the permit re- quirement to the entire airport). 3.2.3 California In 1997, California’s State Water Resources Control Board (California Water Board) issued a general permit for stormwater discharges associ- ated with industrial activity, including stormwa- ter discharges from air transportation facilities.96 The 1997 General Permit will remain effective until July 1, 2015, at which time it will be re- placed by a new general permit for stormwater discharges associated with industrial activity, adopted April 1, 2014.97 Given that the 2015 general permit for indus- trial stormwater discharges (2015 CA GP) has been adopted, and will take effect July 1, 2015, our analysis has focused on the 2015 CA GP, rather than the current permit issued in 1997. 93 Id. 94 713 F.3d 502 (9th Cir. 2013). 95 Id. at 511–12 (citing 40 C.F.R. § 122.26(b)(14) (2014)). 96 Waste Discharge Requirements (WDRS) for Dis- charges of Storm Water Associated with Indus. Activi- ties Excluding Constr. Activities, supra note 15. 97 Gen. Permit for Stormwater Discharges Associated with Indus. Activity, supra note 23 (“2015 CA GP”).

26 Identify Any Independent State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity In California, the regulation of water quality, including the issuance of discharge permits, is governed by the Porter–Cologne Water Quality Control Act.98 One chapter of that state Act con- tains numerous provisions specifically intended to ensure that the California Water Board and the nine Regional Water Quality Control Boards (Re- gional Boards) throughout the state have the au- thority to implement the CWA.99 With respect to stormwater permitting, Water Code Section 13383.5(c) requires the California Water Board to develop, prior to January 1, 2003, minimum monitoring requirements that must be included in stormwater discharge permits for regulated industries. The program is required to include standardized methods for collection and analysis of stormwater samples; a requirement that samples be analyzed by a state-certified labo- ratory or by the regulated industry in the field in accordance with established quality assurance and quality control protocols; and a standardized reporting format. Water Code Section 13383.5(d) further provides that the monitoring require- ments prescribed pursuant to the statute shall be included in all stormwater permits for regulated industries that are reissued following develop- ment of the requirements described in subdivision (c). The minimum monitoring requirements con- tained in Water Code Section 13383.5 are incorpo- rated into 2015 CA GP at Attachment H, titled “Sample Collection and Handling Instructions.” In addition, Water Code Section 13383.8 re- quires the California Water Board to appoint a stormwater management task force to provide advice to the board on its stormwater manage- ment program, which may include program priori- ties, funding criteria, project selection, and inter- agency coordination of state programs that address stormwater management. In February 2008, the California Water Board approved a Storm Water Advisory Task Force (SWATF) to provide input on the development of funding 98 CAL. WATER CODE §§ 13000–13365 (2014). 99 Id. §§ 13370–13389; California Water Code § 13372 provides that state law “shall be construed to ensure consistency with the requirements for state pro- grams implementing” the CWA. California Water Code § 13377 provides that the California Water Board or Regional Boards are authorized to issue discharge per- mits. guidelines for a stormwater grant program and a comprehensive guidance document for evaluating and measuring the effectiveness of municipal stormwater management programs.100 In Novem- ber 2008, the SWATF recommended to the State Department of Water Resources that a “Low Im- pact Development” approach to stormwater man- agement be given funding preference and pro- gram priority over a conventional “collect and convey” approach, which diverts stormwater run- off to local waterways.101 According to the SWATF, Low Impact Development is designed to “infil- trate, filter, store, evaporate and reuse stormwa- ter runoff on-site as much as possible.”102 While it is not clear to what extent the California Water Board relied on the SWATF’s recommendation, the 2015 CA GP requires dischargers to imple- ment, to the extent feasible, BMPs “that divert, infiltrate, reuse, contain, retain, or reduce the volume of storm water runoff.”103 The term of the SWATF expired on June 30, 2009. Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator The 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. The current California Water Board general permit for industrial stormwater discharges states: 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 to obtain a storm water permit…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.104 100 See CALIFORNIA WATER BOARD, http://www.swrcb.ca.gov/water_issues/programs/grants_ loans/prop84/prop84_taskforce.shtml. 101 Storm Water Advisory Task Force Members, Let- ter from Storm Water Advisory Task Force to Lester Snow, Director for Department of Water Resources (Nov. 5, 2008), http://www.swrcb.ca.gov/water_issues/ programs/grants_loans/prop84/docs/taskforce/dwr_ letter.pdf. 102 Id. 103 Gen. Permit for Stormwater Discharges Associated with Indus. Activity, at 33–34, supra note 23. 104 Waste Discharge Requirements (WDRS) for Dis- charges of Storm Water Associated with Indus. Activi- ties Excluding Constr. Activities, Attachment 3, supra

27 The 2015 CA GP defines “Dischargers” as “op- erators of facilities subject to stormwater permit- ting.”105 Under the 2015 CA GP, dischargers may form optional Compliance Groups consisting of dis- chargers operating facilities with similar types of industrial activities, pollutant sources, and pol- lutant characteristics.106 • Each Compliance Group must have a Group Leader. The Group Leader: - Must register with Storm Water Multi- Application Reporting and Tracking System (SMARTS). - Must be a Qualified Industrial Storm Water Practitioner (QISP). - Must assist group participants with all compliance activities required by the permit. - Prepares Consolidated Level 1 Ex- ceedance Response Action (ERA) Report for all group participants with Level 1 status for the same parameter. - Prepares Level 2 ERA Action Plan and Level 2 ERA Technical Report specific to each group participant with Level 2 status. - Inspects all facilities of group partici- pants at least once per reporting year. • The responsibilities of Compliance Group participants include: - Must register with SMARTS. - Responsible for permit compliance for group participant’s facility and for ensuring that Group Leader’s activities related to group partici- pant’s facility comply with permit. - Group participants with Level 1 status must certify and submit via SMARTS the Con- solidated Level 1 ERA Report but may submit individual Level 1 ERA Report. - Group participants with Level 2 status must certify and submit via SMARTS individual Level 2 ERA Action Plan and Technical Report prepared by Group Leader. - Group participants may discontinue par- ticipation in Compliance Group at any time. note 2. The 2015 CA GP does not currently have an attachment containing “NOI Instructions,” and similar language does not appear in the 2015 CA GP. 105 Gen. Permit for Stormwater Discharges Associated with Indus. Activity § I.A.2, supra note 23. 106 Id. at 57–59. Describe Any Limitations on Scope of Permit Cov- erage at Air Transportation Facilities The 2015 CA GP does not specifically address the scope of permit coverage at air transportation facilities or at any other category of industrial activity. More generally, the permit will not apply to the following:107 • Stormwater discharges from areas on tribal lands. • Stormwater discharges regulated under an- other individual or general NPDES permit. • Stormwater discharges to combined sewer systems. • Conveyances that discharge stormwater run- off combined with municipal sewage. • Stormwater discharges identified in CWA § 402(l) (agricultural return flows and stormwater runoff from oil, gas, and mining operations). • Facilities for which a Notice of Non- Applicability (NONA) has been certified and sub- mitted. • Discharges of dredged or fill material regu- lated by the U.S. Army Corps of Engineers. Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities and Any Associated Corrective Action Requirements The 2014 CA GP includes both incorporation of federal stormwater effluent limitations and state- specific receiving water limitations and corrective action requirements. Airport deicing operations are subject to the ef- fluent limitations found in 40 C.F.R. §§ 449.1– 449.20:108 • Existing and new primary airports with 1,000 or more annual jet departures that discharge wastewater associated with airfield pavement deicing commingled with stormwater must either use non-urea-containing deicers or meet a 14.7 mg/L daily maximum effluent limit for ammonia as nitrogen.109 • Airports meeting the definition of a new source with 10,000 annual departures located in cold climate zones must collect 60 percent of air- craft deicing fluid after deicing, and meet the fol- 107 See id. at 3–4. 108 See Gen. Permit for Stormwater Discharges Asso- ciated with Indus. Activity, Attachment F, supra note 23. 109 See 40 C.F.R. 449.10, 449.11(b) (2014).

28 lowing numerical effluent limitations for COD at the location where the effluent leaves the onsite treatment system utilized for meeting these re- quirements and before commingling with any nondeicing discharge: 1) daily maximum COD: 271 mg/L; and 2) weekly average COD: 154 mg/L.110 Dischargers located within a watershed for which a TMDL has been approved by EPA must comply with TMDL-specific permit require- ments.111 The 2015 CA GP contains the following Receiv- ing Water Limitations.112 Dischargers shall en- sure that: • Industrial stormwater discharges shall not cause or contribute to an excedance of any appli- cable water quality standard in any affected re- ceiving water. • Industrial stormwater discharges shall not adversely affect human health or the environ- ment. • Industrial stormwater discharges do not con- tain pollutants in quantities that threaten to cause pollution or a public nuisance. The 2015 CA GP contains the following correc- tive action requirements (referred to as “Ex- ceedance Response Actions”):113 • NALs are established for various parameters, including pH, COD, and ammonia (as nitrogen), as follows:114 - pH—less than 6.0, greater than 9.0 (in- stantaneous maximum NAL). - COD—120 mg/L (annual NAL). - Ammonia (as N)—2.14 mg/L (annual NAL) - Table 2 also identifies NALs for sus- pended solids, oil and grease, biochemical oxygen demand (BOD), and several metals. • Level 1. Sampling results indicate an NAL exceedance (which may be annual or instantane- ous) for a given parameter in any reporting year. 110 Id. § 449.11(a). 111 See Gen. Permit for Stormwater Discharges Asso- ciated with Indus. Activity, Attachment E, supra note 23. 112 Gen. Permit for Stormwater Discharges Associated with Indus. Activity, at 21, supra note 23. 113 Id. at 48–55. 114 Id. at 45, Table 2. Level 1 status commences on July 1 following the reporting year during which the exceedance oc- curred. - Within 60 days, discharger must com- plete evaluation of industrial pollutant sources at facility that are or may be related to NAL exceedance and corresponding BMPs and imple- mentation measures in the SWPPP. - Discharger must submit Level 1 ERA Report, including summary of evaluation and implementation schedule for additional BMPs and SWPPP revisions. - Status will return to baseline once report has been completed, all identified additional BMPs have been implemented, and results from four subsequent and consecutive Qualifying Storm Events (QSEs) indicate no additional ex- ceedances for that parameter. • Level 2. Sampling results for Level 1 dis- charger indicate NAL exceedance for the same parameter. Level 2 status commences on July 1 following the reporting year during which the NAL exceedance occurred. - Discharger must submit Level 2 ERA Action Plan addressing each new Level 2 NAL exceedance, including: 1) addressing drainage ar- eas with corresponding Level 2 exceedances, and 2) a schedule and detailed description of tasks required to complete selected demonstrations. - Discharger must also submit Level 2 ERA Technical Report, including one or more of the following demonstrations: 1) Industrial Activ- ity BMP Demonstration, 2) Non-Industrial Pol- lutant Source Demonstration, and 3) Natural Background Pollutant Source Demonstration. - Level 2 ERA Technical Report must be updated annually based on facility operational changes, pollutant source(s) changes, or informa- tion obtained from compliance activities. - Dischargers with Level 2 status are eli- gible to return to baseline status if they do all of the following: 1) submit Industrial Activity BMP Demonstration, 2) have implemented BMPs to prevent future NAL exceedances, 3) achieve results from four subsequent consecutive QSEs sampled that indicate no additional NAL exceedances for the parameters.

29 Identify Any Required or Recommended BMPs The 2015 CA GP specifies the following required BMPs:115 • Good housekeeping (observations, coverage, containment, prevention, etc.). • Preventive maintenance. • Spill and leak prevention and response (pro- tocols, procedures, equipment, training, etc.). • Material handling and waste management. • Erosion and sediment controls. • Employee training. • Quality assurance and record keeping. In addition, the 2015 CA GP requires the fol- lowing BMPs, to the extent feasible:116 • Exposure minimization (e.g., storm resistant shelters). • Stormwater containment and discharge re- duction (e.g., to divert, infiltrate, reuse, contain, retain, or reduce volume of stormwater runoff). • Treatment control (e.g., mechanical, chemi- cal, biological, or other technology that will meet treatment design standard; may be volume-based or flow-based). • Other advanced BMPs, which include any- thing not listed in the permit but necessary to meet effluent limitations. Summarize Any Administrative or Judicial Deci- sions Interpreting California’s Industrial Storm- water General Permit Santa Monica Baykeeper v. Kramer Metals, Inc.,117 was a CWA citizen suit brought to enforce alleged violations at two scrap metal facilities of the California Water Board’s general permit for industrial stormwater dischargers. One of the issues in the case concerned the California general permit’s technology-based effluent limitation that requires facility operators to reduce or prevent pollution associated with industrial activity through 1) implementation of BAT for toxic and nonconventional pollutants, and 2) 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 115 Gen. Permit for Stormwater Discharges Associated with Indus. Activity, at 30–33, supra note 23. 116 Id. at 33–34. 117 619 F. Supp. 2d 914 (C.D. Cal. 2009). requirements in the permit and 2) includes BMPs that achieve BAT/BCT.118 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 EPA’s 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 California general permit does not incorporate the EPA MSGP’s benchmark levels 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 facility’s BMPs, but that samples in excess of those bench- marks do not necessarily constitute a violation of the California general permit; instead, a more comprehensive approach is necessary.119 Finding disputed issues of fact, and the need for a more comprehensive discussion of the BAT/BCT issue, the court denied the plaintiff’s motion for sum- mary judgment as to the alleged violations of the California general permit’s technology-based ef- fluent limit. Another issue in the case concerned alleged vio- lations of a receiving water limitation in the per- mit providing that stormwater discharges shall not cause or contribute to an exceedance of any applicable water quality standard. The court held that the California Toxics Rule (CTR), 40 C.F.R. § 131.38, which EPA had promulgated to fill a gap in California’s water quality standards, is a water quality standard that applies to the defendant’s facilities. Moreover, the court found that there was at least one violation of the CTR, and there- fore the California general permit’s receiving wa- ter limitation, at each facility, and granted plain- tiffs’ motion for summary judgment as to liability on that ground.120 3.2.4 New York The New York State Department of Environ- mental Conservation (NYSDEC) administers New York’s SPDES program. New York’s current Multi-Sector General Permit for Stormwater Dis- charges Associated with Industrial Activity be- came effective October 1, 2012, and will expire on September 30, 2017 (NY MSGP). 118 Id. at 920. 119 Id. at 924–25. 120 Id. at 926–29.

30 Identify Any Independent State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity New York’s general state law governing water quality control is the New York Environmental Conservation Law (NY ECL), Article 17 (Water Pollution Control). Title 8 of Article 17 governs the SPDES program.121 In particular, NY ECL Section 17-803 makes it unlawful to discharge pollutants to state waters from any outlet or point source without an SPDES permit or in a manner other than as prescribed by such a permit. NY ECL Section 17-808 provides that October 1, 1992, is the effective date of the state law requir- ing a permit for storm water discharges associ- ated with industrial activity. NY ECL Section 17-0811 requires that SPDES permits include provisions requiring compliance with: 1) effluent limitation, 2) standards of per- formance for new sources, 3) toxic and pretreat- ment effluent standards, 4) ocean discharge crite- ria adopted by the federal government, and 5) any further limitations necessary to ensure compli- ance with state water quality standards. Under NY ECL Section 17-0813, SPDES permits may contain compliance schedules. NYSDEC has promulgated regulations requir- ing that SPDES permits ensure compliance with 1) BPT effluent limitations under CWA Section 301; 2) BCT new source performance standards under CWA Section 306; 3) BAT effluent limita- tions guidelines, effluent prohibitions, and pre- treatment standards for existing sources under CWA Section 307; 4) ocean discharge criteria un- der CWA Section 403; and 5) any more stringent limitations required under CWA Section 510, CWA Section 303(d) (TMDL), or any other state or federal law or regulation.122 In addition, NYSDEC is expressly authorized by regulation to issue general permits for storm- water discharges associated with industrial activ- ity.123 Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator NYSDEC regulations state: “When a facility or activity is owned by one person but is operated by 121 N.Y. ENVTL. CONSERV. LAW §§ 17-0801 to 17-0831 (2014). 122 N.Y. COMP. CODES R. & REGS. tit. 6, § 750-1.11 (2014). 123 Id. § 750-1.21(b)(3). another person, it is the operator’s duty to obtain a permit.”124 An SWPPP developed for areas of the facility occupied by tenants of the airport shall be inte- grated with the plan for the entire airport. Ten- ants include airline passenger or cargo companies, fixed base owners or operators, and other parties who have contracts with the airport authority to conduct business operations on airport property and whose operations result in stormwater dis- charges associated with industrial activity.125 “Co-located industrial activity.” “If more than one industrial activity occurs at the facility, those industrial activities are considered to be co- located. Stormwater discharges from co-located industrial activities are authorized by this permit, provided that the owner or operator complies with any and all additional sector specific require- ments…applicable to each industrial activity at the facility.”126 Describe Any Limitations on Scope of Permit Cov- erage at Air Transportation Facilities Discharges of vehicle and equipment wash wa- ter are not authorized by the NY MSGP. Such wastewaters must be covered under a separate SPDES permit, discharged to a sanitary sewer in accordance with applicable industrial pre- treatment requirements, or disposed of otherwise in accordance with applicable law.127 Discharges from industrial activity that are mixed with sources of nonstormwater other than those expressly authorized by the NY MSGP or another SPDES permit are not authorized.128 Discharges from industrial activities that have the potential to adversely affect a listed or pro- posed-to-be-listed endangered or threatened spe- cies or its critical habitat are not authorized (ab- sent a documented agreement with NYSDEC).129 Discharges of hazardous substances or petro- leum are not authorized. SWPPP should address how discharges of hazardous substances and pe- troleum in stormwater are prevented or mini- mized.130 124 Id. § 750-1.6. 125 SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, at 153, supra note 17. 126 Id. at 12. 127 Id. at 9. 128 Id. at 14. 129 Id. 130 Id. at 17.

31 Dry weather discharges of deicing and anti- icing chemicals are not authorized.131 Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities and Any Associated Corrective Action Requirements The NY MSGP does not specify numeric efflu- ent limits for air transportation facilities.132 Benchmark Monitoring Requirements are ap- plicable to airports that use more than 100,000 gallons of glycol-based deicing/anti-icing chemi- cals and/or 100 tons or more of urea on an average annual basis:133 • BOD5—30 mg/L. • COD—120 mg/L. • Total nitrogen—6 mg/L. • pH—within range of 6.0 to 9.0 s.u. • Note: Only those outfalls from the airport fa- cility that collect runoff from areas where deic- ing/anti-icing activities occur must be monitored. Water Quality Standards134 “It shall be a violation of the Environmental Conservation Law (ECL) for any discharge au- thorized by [NY MSGP] to either cause or con- tribute to a violation of water quality standards,” (emphasis in original), including: • No increase in turbidity that will cause a sub- stantial visible contrast to natural conditions. • No suspended, colloidal, and settleable solids from sewage, industrial wastes, or other wastes that will cause deposition or impair the waters for their best usages. • No residue from oil and floating substances attributable to sewage, industrial wastes, or other wastes, nor visible oil film nor globules of grease. • Corrective action requirements. If “signifi- cantly or deleteriously large quantities of deicing chemicals are being spilled or discharged, or if water quality impacts have been reported,” in- spections must be conducted weekly until dis- charges or impacts are reduced to acceptable lev- els.135 131 SPDES Multi Sector Gen. Permit for Stormwater Discharges from Indus. Activity, at 153, supra note 17. 132 Id. at 158. 133 Id. 134 Id. at 11. 135 Id. at 157. Identify Any Required or Recommended BMPs The NY MSGP identifies a number of generally applicable BMPs:136 • Minimize exposure of operations and storage to rain, snow, snowmelt, and runoff. • Good housekeeping. • Maintenance through regular testing, inspec- tion, and repair. • Spill prevention and response procedures. • Erosion and sediment controls. • Management of runoff. • Enclosure of salt piles used for deicing and other purposes (unless no discharge from the piles or they are authorized under another permit). • Employee training. • Elimination of nonstormwater discharges not authorized by the NY MSGP. • Prevention of waste, garbage, and floatable debris discharge. • Minimize generation of dust and off-site tracking of raw, final, or waste materials The NY MSGP identifies various BMPs specific to air transportation facilities, including good housekeeping BMPs and source reduction BMPs:137 • For aircraft, ground vehicle, and equipment maintenance areas, the SWPPP must document consideration of: - Performing maintenance activities in- doors. - Maintaining an organized inventory of materials used in the maintenance areas. - Draining all parts of fluids prior to dis- posal. - Preventing the practice of hosing down the apron or hangar floor. - Using dry cleanup methods. - Collecting the stormwater runoff from the maintenance area. - Providing treatment or recycling. • For aircraft, ground vehicle, and equipment cleaning areas, the SWPPP must include provi- sions that ensure that cleaning of equipment is conducted in designated areas only. • For aircraft, ground vehicle, and equipment storage areas, the SWPPP must document consid- eration of: 136 Id. at 24–30. 137 Id. at 154–57.

32 - Indoor storage of aircraft and ground ve- hicles. - Use of drip pans for the collection of fluid leaks. - Perimeter drains, dikes, or berms sur- rounding storage areas. • For material storage areas, the SWPPP must document consideration of: - Indoor storage. - Centralized storage for waste materials. - Installation of berms or dikes around storage areas. • For airport fuel system and fueling areas, the SWPPP must document consideration of: - Implementing spill and overflow prac- tices. - Using dry cleanup methods. - Collecting stormwater runoff. - Consider alternatives to use of urea and glycol-based deicing/anti-icing chemicals, such as potassium acetate, magnesium acetate, calcium acetate, and anhydrous sodium acetate. • For runway deicing operations, the SWPPP must document consideration of: - Metered application of chemicals. - Pre-wetting dry chemical constituents prior to application. - Installation of runway ice detection sys- tems. - Implementing anti-icing operations as a preventative measure against ice buildup. • For aircraft deicing and anti-icing operations, the SWPPP must document consideration of: - Forced-air deicing systems. - Computer-controlled fixed gantry sys- tems. - Infrared technology. - Hot water. - Varying glycol content to air tempera- ture. - Enclosed-basket deicing trucks. - Mechanical methods. - Solar radiation. - Hangar storage. - Aircraft covers. - Thermal blankets for MD-80s and DC-9s. - Ice-detection systems. - Airport traffic flow strategies. - Departure slot allocation systems. • For management of runoff, the SWPPP must document consideration of: - Establishing a dedicated deicing facility with a runoff collection and recovery system. - Use of vacuum/collection trucks. - Storage of contaminated stormwater de- icing fluids in tanks and release of controlled amounts to a Publicly Owned Treatment Works (POTW) in accordance with pretreatment pro- gram requirements. - Collection of contaminated runoff in a wet pond for biochemical decomposition. - Directing of runoff into vegetative swales or other infiltration measures. - Recovering deicing/anti-icing materials when these materials are applied during nonpre- cipitation events. - Recycling used deicing fluid whenever possible. • For inspections: - Minimum of monthly inspections during deicing and anti-icing season (usually October to April 1). - Annual comprehensive site compliance inspection shall be conducted during period of ac- tual deicing operations, if possible. Summarize Any Administrative or Judicial Deci- sions Interpreting New York’s MSGP Industrial Stormwater Permit In 2006, in the context of renewing the individ- ual SPDES stormwater permit for JFK, NYSDEC determined that the permit required modification and made the draft modified permit available for public review. Comments were submitted by vari- ous parties, including the operator of the airport— the Port Authority—certain airlines who are ten- ants at the airport, and two environmental groups. NYSDEC subsequently referred the modi- fication proceeding for a public hearing and issues conference before an ALJ. The parties then worked cooperatively over several months to re- solve their varied concerns with respect to the proposed permit modifications, and, as a result of these efforts, there was no adjudicatory hearing. The ALJ issued a report that discussed the issues that had been resolved by the parties concerning the permit modification.138 138 Port Authority of New York (JFK) Summary Hear- ing Report and Order of Deposition, NEW YORK DEP’T OF ENVT’L CONSERVATION (Sept. 19, 2007).

33 The ALJ’s 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. A Port Authority representative discussed the BMPs and other steps taken to reduce impacts of deicing on Jamaica Bay, including: • Banning use of urea in 2000. • Use of “relatively nontoxic” propylene glycol, sodium acetate, and potassium acetate. • Training for individuals who apply deicing chemicals. • Largest airline tenant uses dual nozzle for air and deicing fluid, resulting in reduction in volume of fluid used. • Coordination between pilots and control tower to time takeoffs so reapplication of deicing fluids is not required. • Establishment of radiant facility at the air- port where planes can be brought in for deicing faster than using traditional techniques, which reduces chemicals used by 90 percent. 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 “tenants shall” language).139 The Port Authority representative stated that it would be a “logical 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.” The Port Authority ultimately agreed to drop this issue, however, 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. The Port Authority and the airlines did agree to accept the so-called “tenants shall” lan- guage, although the airlines insisted that their agreement to this language did not constitute 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- 139 It is not clear from the ALJ’s report what permit conditions were included or were subject to the “tenants shall” language, but it appears from the report that those conditions to monitoring and BMPs, as well as perhaps other issues. mit and the underlying law/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, NYDEC staff stated its position that narrative water quality standards are incorporated into the SPDES per- mit for JFK, and the ALJ confirmed that “any vio- lation by the permittee of water quality standards is a violation of both the permit and the applicable statutes and regulations.”140 3.2.5 Washington The WA ISGP is administered by the Washing- ton Department of Ecology (Ecology). The current WA ISGP was issued on October 21, 2009; became effective in January 2010; and was modified effec- tive July 1, 2012. The current WA ISGP expires on January 1, 2015. Ecology plans to publish a draft industrial stormwater general permit to replace the current WA ISGP on April 16, 2014, with a public com- ment period scheduled to end on June 2, 2014. Ecology plans to issue its new, final WA ISGP on October 15, 2014, with an effective date of Janu- ary 1, 2015. Permittees covered by the current WA ISGP must reapply for coverage by July 1, 2014. Ecology’s Web site does not provide infor- mation regarding the reapplication deadline and the status of coverage for current permittees in the event a new WA ISGP is not issued according to the agency’s planned schedule. (NOTE: Since the drafting of this digest, Ecology reissued the WA ISGP on December 3, 2014.) Identify Any Independent State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity Washington’s general state law governing wa- ter quality control is its Water Pollution Control Law.141 Ecology is authorized to establish and administer a state pollution discharge elimination permit program by Washington Revised Code Sec- tion 90.48.260. The authorized permit program elements include: • Effluent treatment and limitation require- ments, together with timing requirements related thereto. 140 Port Authority of New York (JFK) Summary Hear- ing Report and Order of Deposition, NEW YORK DEP’T OF ENVT’L CONSERVATION (Sept. 19, 2007). 141 WASH. REV. CODE §§ 90.48.010 to 90.48.605 (2014).

34 • Applicable receiving water quality standards requirements. • Requirements of standards of performance for new sources. • Pretreatment requirements. • Termination and modification of permits for cause. • Requirements for public notices and opportu- nities for public hearings. • Requirements for inspection, monitoring, en- try, and reporting. Washington has enacted specific substantive requirements applicable to industrial (and con- struction) stormwater general permits issued by Ecology pursuant to the CWA. In particular, Washington Revised Code Section 90.48.555 provides: • Effluent limitations shall be included in in- dustrial stormwater general permits as required under the CWA and its implementing regulations; pollutant-specific, water quality-based effluent limits shall be included if there is a reasonable potential to cause or contribute to an excursion of a state water quality standard. • Both technology and water quality-based ef- fluent limitations may be expressed as: 1) nu- meric effluent limitations, 2) narrative effluent limitations, or 3) a combination of numeric and narrative effluent discharge limitations. • Compliance with water quality standards shall be presumed, unless discharge monitoring data or other site-specific information demon- strate that a discharge causes or contributes to a violation of such standards, when the permittee is: 1) in full compliance with all permit conditions, and 2) fully implementing stormwater BMPs con- tained in stormwater technical manuals approved by Ecology or practices that are demonstrably equivalent to practices contained in approved stormwater technical manuals. • By November 1, 2009, Ecology was required to modify or reissue the WA ISGP to require com- pliance with appropriately derived numeric water quality-based effluent limitations for existing dis- charges to water bodies listed as impaired accord- ing to CWA Section 303(d), except for water bod- ies impaired by bacteria. • For pollutants other than bacteria, the WA ISGP must require permittees to comply with ap- propriately derived numeric water quality-based effluent limitations by no later than 6 months af- ter the effective date of the modified or reissued WA ISGP. • By July 1, 2012, the ISGP must require per- mittees with discharges to water bodies listed as impaired for bacteria to comply with nonnumeric, narrative effluent limitations. • The WA ISGP is required to include an en- forceable adaptive management mechanism that includes appropriate monitoring, evaluation, and reporting. • The WA ISGP is required to include timing and mechanisms for implementation of treatment BMPs. • Receiving water sampling shall not be a re- quirement of an industrial stormwater general permit except to the extent that it can be con- ducted without endangering the health and safety of persons conducting the sampling. Washington Revised Code Section 90.48.560 required Ecology, by January 1, 2005, to have ini- tiated an inspection and compliance program for all permittees covered under the WA ISGP. Washington Revised Code Section 90.48.545 requires Ecology to create, as funding to do so be- comes available, a stormwater technical resource center to provide tools for stormwater manage- ment. The technical resource center may: • Review and evaluate emerging stormwater technologies. • Research and develop innovative and cost- effective technical solutions to remove pollutants from runoff and to reduce or eliminate stormwater discharges. • Conduct pilot projects to test technical solu- tions. • Serve as a clearinghouse and outreach center for information on stormwater technology. • Assist in the development of stormwater con- trol methods to better protect water quality, in- cluding source control, product substitution, pol- lution prevention, and stormwater treatment. • Coordinate with federal, state, and local agencies and private organizations in administer- ing programs related to stormwater control meas- ures. • Collaborate with existing stormwater out- reach programs. Pursuant to this statute, the Washington Stormwater Center was established on December 9, 2010, and operates a Web site available at http://www.wastormwatercenter.org.

35 Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator The research found no provision in the Wash- ington Water Pollution Control Law that distin- guishes between the obligations of a facility owner and operator. The WA ISGP defines “discharger” as “an 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.”142 During the 2012 WA ISGP modification proc- ess, in response to a comment by BNSF Railway Company regarding the owner–operator distinc- tion, Ecology stated: [U]nder 40 CFR section 122.21(b), when a facility is owned by one person but operated by another, it is the operator’s duty to obtain a permit. Ecology considers the permitting requirements to be fulfilled if the operator has sole permit coverage at a facility. Nothing in the permit precludes multiple entities from holding permit coverage at a facility. If that is necessary, each entity should sub- mit a separate notice of intent (NOI) to apply for permit coverage.143 Describe Any Limitations on Scope of Permit Cov- erage at Air Transportation Facilities The WA ISGP applies to facilities conducting industrial activities that discharge stormwater to a surface water body or to a storm sewer that drains to a surface water body.144 The WA ISGP does not apply to:145 • Industrial facilities that discharge stormwa- ter only to a municipal combined sewer or sani- tary sewer. • Industrial facilities that discharge stormwa- ter only to groundwater with no discharge to sur- face waters of the state under any condition. • Office buildings or administrative parking lots from which stormwater does not commingle with stormwater from areas associated with in- dustrial activity. 142 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 53. 143 Modification Addendum to Fact Sheet: Appx. E Response to Public Comments on the Draft Permit Modification, at 8–9, WA ISGP (May 16, 2012), http:// /www.ecy.wa.gov/programs/wq/stormwater/industrial/ permitdocs/iswgprtc051612.pdf. 144 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 6. 145 Id. at 8–10. • Facilities located on tribal lands or facilities that discharge stormwater to receiving waters subject to water quality standards of Indian tribes. • Any facility authorized to discharge stormwa- ter associated with industrial activity under an existing NPDES permit. • Construction activities. • Facilities that discharge to a water body with a control plan, unless the WA ISGP adequately provides the level of protection required by the control plan. The WA ISGP conditionally authorizes certain nonstormwater discharges:146 • Discharges from firefighting activities. • Fire protection system flushing, testing, and maintenance. • Discharges of potable water, including water line flushing, provided that water line flushing must be dechlorinated prior to discharge. • Uncontaminated air conditioning or compres- sor condensate. • Landscape watering and irrigation drainage. • Uncontaminated ground water or spring wa- ter. • Discharges associated with dewatering of foundations, footing drains, or utility vaults where flows are not contaminated with process materials such as solvents. • Incidental windblown mist from cooling tow- ers that collects on rooftops or areas adjacent to the cooling tower. The WA ISGP applies to air transportation fa- cilities that have vehicle maintenance activity, equipment cleaning operations, or airport deicing operations.147 • Ecology defines “vehicle maintenance” as “the rehabilitation, mechanical repairing, painting, fueling, and/or lubricating of a motor-driven con- veyance that transports people or freight, such as an automobile, truck, train, or airplane.”148 • “Vehicle maintenance” includes mobile fuel- ing.149 146 Id. at 29. 147 Id. at 7. 148 Industrial Stormwater General Permit Frequently Asked Questions, WASH. STATE DEP’T OF ECOLOGY, at 5, available at http://www.ecy.wa.gov/programs/wq/ stormwater/industrial/ISGP%20FAQ%202013.pdf. 149 Id.

36 - The 2012 WA ISGP modifications in- cluded: 1) changing the phrase “vehicle mainte- nance shops” to “vehicle maintenance activity,” and 2) removing “material handling facilities” from the list of transportation facilities required to seek coverage under the WA ISGP. Once a transportation facility has permit cov- erage, the permit applies to the entire footprint of the industrial facility. As stated by Ecology: “Once a transportation facility has permit coverage, the permit conditions for sampling, inspection and stormwater management practices are required in all areas of industrial activity—rather than only those areas where vehicle maintenance, equip- ment cleaning and airport de-icing occur.”150 Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities and Any Associated Corrective Action Requirements The WA ISGP establishes the following bench- mark values that apply to all industrial facili- ties151 (with a quarterly minimum sampling fre- quency):152 • Turbidity—25 NTU. • pH—between 5.0 and 9.0. • Oil sheen—no visible oil sheen. • Copper, total: • Western WA—14 ug/L. • Eastern WA—32 ug/L. • Zinc, total—117 ug/L. The WA ISGP establishes the following bench- mark values that apply to air transportation facilities153 (quarterly minimum sampling fre- quency):154 • Ammonia—2.1 mg/L. • BOD5—30 mg/L. • COD—120 mg/L. • Nitrate/Nitrite, as N—0.68 mg/L. 150 Id. 151 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 25. 152 Id. at 24 (explaining that permittees sampling more than once per quarter are required to average the sample results for each parameter and compare the average value to the benchmark to determine if the discharge has exceeded a benchmark value). 153 Id. at 26. 154 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 25 n.12. For airports where a single permittee uses, or a combination of permitted facilities use, more than 100,000 gallons of glycol-based deicing chemicals or 100 tons or more of urea on an average annual basis, monitoring is required for the additional four parameters (Ammonia, BOD5, COD, and Nitrate/Nitrite) in those outfalls that collect run- off from areas where deicing activities occur.155 The WA ISGP establishes three levels of correc- tive action requirements based on the frequency of benchmark value exceedances:156 • Level 1—Operational Source Control BMPs— for permittees that exceed any applicable bench- mark value: - Within 14 days of receipt of sampling re- sults that indicate a benchmark exceedance, the permittee must: 1) conduct an inspection to inves- tigate the cause of the exceedance, 2) review the facility’s SWPPP and ensure that it fully complies with the WA ISGP SWPPP requirements and con- tains the correct BMPs from the applicable Stormwater Management Manual, and 3) make appropriate revisions to the SWPPP to include additional Operational Source Control BMPs with the goal of achieving the applicable benchmark values in future discharges. - Summarize the Level 1 Corrective Ac- tions in the annual report. - Level 1 deadline: The permittee shall fully implement revised SWPPP as soon as possi- ble but no later than the due date for the Dis- charge Monitoring Report (DMR) for the quarter in which the benchmark was exceeded.157 • Level 2—Structural Source Control BMPs— for permittees that exceed an applicable bench- mark value for a single parameter for any two quarters during a calendar year:158 - Review the facility’s SWPPP and ensure that it fully complies with the WA ISGP SWPPP requirements. - Make appropriate revisions to the SWPPP, to include additional Structural Source Control BMPs, with the goal of achieving the ap- plicable benchmark values in future discharges. 155 Id. at 27. 156 Id. at 33–37. 157 Id. at 38. Quarterly DMR due dates are May 15 (Jan.–Mar. reporting period), Aug. 14 (Apr.–June re- porting period), Nov. 14 (July–Sept. reporting period), and Feb. 14 (Oct.–Dec. reporting period). 158 Alternatively, the permittee may skip Level 2 and complete a Level 3 Corrective Action.

37 - Summarize the Level 2 Corrective Ac- tions planned or taken in the annual report. - Level 2 deadline: The permittee shall fully implement the revised SWPPP as soon as possible, but no later than August 31 of the fol- lowing year. - For the year following the calendar year in which the permittee triggered a Level 2 Correc- tive Action, benchmark exceedances for the same parameter do not count toward additional Levels 2 or 3 Corrective Actions. • Level 3—Treatment BMPs—for permittees that exceed an applicable benchmark value for a single parameter for any three quarters during a calendar year: - Review the SWPPP and ensure that it fully complies with WA ISGP SWPPP require- ments. - Make appropriate revisions to the SWPPP, to include additional Treatment BMPs, with the goal of achieving the applicable bench- mark values in future discharges. SWPPP revi- sions shall include additional operational or struc- tural source control BMPs if necessary for proper performance and maintenance of Treatment BMPs. A licensed professional engineer, geologist, hydrogeologist, or Certified Professional in Storm Water Quality (CPSWQ) must design and stamp the portion of the SWPPP that addresses storm- water treatment structures or processes. In addi- tion, the permittee must submit an engineering report, plans and specifications, and an operations and maintenance manual to Ecology for review before installing treatment BMPs that require site-specific design or sizing of structures, equip- ment, or processes to collect, convey, treat, re- claim, or dispose of industrial stormwater. - Summarize Level 3 Corrective Actions planned or taken in the annual report; summary must include information on how monitoring, as- sessment, or evaluation information was or will be used to determine whether existing Treatment BMPs will be modified or enhanced, or if new or additional treatment BMPs will be installed. - Level 3 deadline: The permittee shall fully implement the revised SWPPP as soon as possible but no later than September 30 of the following year. - For the year following the calendar year in which the permittee triggered a Level 3 Correc- tive Action, benchmark exceedances for the same parameter do not count toward additional Level 2 or 3 Corrective Actions. Identify Any Required or Recommended BMPs A facility’s SWPPP must specify BMPs neces- sary to:159 • Provide all known, available, and reasonable methods of prevention, control, and treatment of stormwater pollution. • Ensure that a stormwater discharge does not cause or contribute to a violation of the water quality standards. • Comply with applicable federal technology- based treatment requirements under 40 C.F.R. § 125.3 (2014). Operational Source Control BMPs160 • Good Housekeeping: - Vacuum paved surfaces with a vacuum sweeper to remove accumulated pollutants at least once per quarter. - Identify and control all on-site sources of dust to minimize stormwater contamination from the deposition of dust on areas exposed to precipi- tation. - Inspect and maintain bag houses monthly to prevent the escape of dust from the system; immediately remove any accumulated dust at the base of exterior bag houses. - Keep all dumpsters under cover or fit with a lid that must remain closed when not in use. • Preventative Maintenance: - Clean catch basins when the depth of debris reaches 60 percent of the sump depth; in addition, the permittee must keep the debris sur- face at least 6 in. below the outlet pipe. - Inspect all equipment and vehicles dur- ing monthly site inspections for leaking fluids such as oil, antifreeze, etc.; take leaking equip- ment and vehicles out of service or prevent leaks from spilling on the ground until repaired. - Immediately clean up spills and leaks. Spill Prevention and Emergency Cleanup Plan (SPECP) - Store all chemical liquids, fluids, and pe- troleum products on an impervious surface that is surrounded with a containment berm or dike that is capable of containing 10 percent of the total 159 Wash. Indus. Stormwater Gen. Permit, supra note 16, at 13. 160 Id. at 16–19.

38 enclosed tank volume or 110 percent of the vol- ume contained in the largest tank, whichever is greater. - Prevent precipitation from accumulating in containment areas with a roof or equivalent structure, or include a plan on how the permittee will manage and dispose of accumulated water if a containment area cover is not practical. - Locate spill kits within 25 ft of all sta- tionary fueling stations, fuel transfer stations, and mobile fueling units. - Do not lock shut-off fueling nozzles in the open position; do not top off tanks being refu- eled. - During fueling activities, block, plug, or cover storm drains that receive runoff from areas where fueling occurs. - Use drip pans or equivalent containment measures during all petroleum transfer opera- tions. - Locate materials, equipment, and activi- ties so that leaks are contained in existing con- tainment and diversion systems. - Use drip pans and absorbents under or around leaky vehicles and equipment or store ve- hicles and equipment indoors where feasible; drain fluids from equipment and vehicles prior to on-site storage or disposal. - Maintain a spill log that includes the fol- lowing information for chemical and petroleum spills: date, time, amount, location, reason for spill, date and time cleanup was completed, notifi- cations made, and staff involved. Structural Source Control BMPs161 • A facility’s SWPPP shall include Structural Source Control BMPs listed as “applicable” in Ecology’s Stormwater Management Manual or other guidance documents or approved manuals. • Minimize exposure of manufacturing, proc- essing, and material storage areas to rain, snow, snowmelt, and runoff either by locating them in- side or protecting them with storm resistant cov- erings. • Use grading, berming or curbing to prevent runoff of contaminated stormwater flows and di- vert run-on away from areas with industrial ma- terials or activities. • Perform all cleaning operations indoors, un- der cover, or in bermed areas that prevent storm- water runoff and run-on and that also capture any overspray. 161 Id. at 19. • Ensure that all washwater drains to a collec- tion system that directs the washwater to further treatment or storage and not to a stormwater drainage system. Treatment BMPs162 • Employ oil and water separators, booms, skimmers, or other methods to eliminate or mini- mize oil and grease contamination of stormwater discharges. • Obtain Ecology approval before beginning construction or installation of all treatment BMPs that include the addition of chemicals to provide treatment. Stormwater Peak Runoff Rate and Volume Control BMPs163 • Facilities with new development or redevel- opment shall evaluate whether flow control BMPs are necessary to satisfy the state’s requirement to provide all known, available, and reasonable methods of prevention, control, and treatment of stormwater pollution and to prevent violations of water quality standards. Erosion and Sediment Control BMPs164 • Implement and maintain detention or reten- tion ponds or traps, vegetated filter strips, bioswales, or other permanent sediment control BMPs to minimize sediment loads in stormwater discharges. • Implement and maintain filtration BMPs to remove solids from catch basins, sumps, or other stormwater collection and conveyance system components (i.e., filter socks, modular canisters, sand filtration, centrifugal separators, etc.). Summarize Any Administrative or Judicial Deci- sions Interpreting Washington’s Industrial Storm- water General Permit Multiple parties, including a number of regu- lated companies and various environmental groups, filed administrative appeals with PCHB of the WA ISGP issued by Ecology in October 2009. PCHB identified 71 legal issues that gov- erned the proceedings and controlled the issues on appeal. PCHB ultimately issued seven orders on 162 Id. at 20. 163 Id. 164 Id.

39 summary judgment addressing many of the issues raised by the parties, while requiring other issues to proceed to hearing.165 Following is a summary of PCHB’s resolution of four issues that appear to be most relevant to the scope of work of this pro- ject for ACRP. • Whether Ecology’s post-permit issuance of an errata sheet eliminating permit coverage re- quirements for transportation facilities that have material handling facilities was invalid.166 • 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. § 122.26(b)(14)(viii) and granted summary judgment to Ecology on this issue. • 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.167 - PCHB found that the WA ISGP lawfully and validly requires permittees to install BMPs beyond those required in the Stormwater Man- agement Manuals. Furthermore, according to PCHB, the WA ISGP term requiring permittees taking Level 3 corrective action response to im- plement BMPs beyond those in the Stormwater Management Manuals “is a necessary and rea- sonable part of the adaptive management re- sponse required of [the] permit.” 168 PCHB granted summary judgment to Ecology and denied Boe- ing’s motion to reconsider this issue.169 165 See generally Copper Dev. Assoc., Inc., et al. v. Wash. Dep’. of Ecology, Wash. Pollution Control Hear- ings Board, PCHB Nos. 09-135 through 09-141, Find- ings of Fact, Conclusions of Law, and Order, Apr. 25, 2011 (Findings of Fact, Conclusions of Law, and Order), at 2. (Available on the Washington Pollution Control Hearings Board Web site: http://www.eluho.wa.gov/ Board/PCHB.) 166 Copper Dev. Assoc., Inc., et al. v. Wash. Dep’t of Ecology, Wash. Pollution Control Hearings Board, PCHB Nos. 09-135 through 09-141, Order on Summary Judgment (Legal Issues No. 15, 24–25, 31, 44, 46–48, 56, 61–62, and 65–67), Jan. 5, 2011 (SJ Order) at 7–8. (Available on the Washington Pollution Control Hear- ings Board Web site: http://www.eluho.wa.gov/Board/ PCHB.) 167 Id. at 12–14. 168 Id. at 14. 169 Findings of Fact, Conclusions of Law, and Order, at 73. • Whether the permit’s failure to establish nu- meric water quality-based effluent limitations is invalid.170 - PCHB found that Ecology reasonably de- termined that application of BMPs would be effec- tive in achieving compliance with water quality standards after performing a generalized reason- able potential analysis on industrial stormwater discharges. 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 water bodies. • Whether requiring source control and treat- ment BMPs “with the goal of achieving the appli- cable benchmark” without defining specific BMPs or the level of adaptive management necessary to meet the state goal is valid.171 - PCHB found that “[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.” PCHB also found that the WA ISGP “correctly places the burden on the permittee to meet [applicable] benchmarks through implementation of [] adaptive manage- ment response.”172 PCHB granted summary judg- ment to Ecology and denied Boeing’s motion to reconsider this issue.173 3.2.6 Illinois The Illinois Environmental Protection Agency (IEPA) administers the Ill. GP. The current gen- eral permit became effective May 1, 2009, and expired on April 30, 2014. IEPA’s Web site does not contain information regarding renewal of the current general permit or issuance of a new per- mit. However, the IEPA Web site contains several links to EPA’s Web site (e.g., for guidance on developing SWPPPs and BMPs), and it is possible that renewal of the Illinois general permit may be triggered by renewal of EPA’s MSGP for stormwa- ter discharges associated with industrial activity. 170 SJ Order at 16–17. 171 Id. at 18–20. 172 Id. at 19. 173 Findings of Fact, Conclusions of Law, and Order, at 73.

40 Identify Any Independent State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity IEPA issues state NPDES permits pursuant to the Illinois Environmental Protection Act.174 The Illinois NPDES regulations are contained in the Illinois Administrative Code.175 The regula- tions authorize IEPA to ensure compliance with federal standards, unless more stringent limita- tions are applicable.176 The regulations also set forth water quality standards for waters of the state.177 Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator The research found no provisions distinguish- ing between the obligations of a facility owner and operator in Illinois statutes or regulations, or in the Ill. GP. Describe Any Limitations on Scope of Permit Cov- erage at Air Transportation Facilities The Illinois general industrial stormwater per- mit contains a number of general limitations on the scope of permit coverage. The general permit does not apply to: • Process wastewater or cooling water. • Stormwater discharges associated with in- dustrial activity from access roads or rail lines. • Hazardous waste treatment, storage, or dis- posal facilities. • Construction site activity. • Discharge of hazardous substances or oil re- sulting from an on-site spill. • Nonstormwater discharges, except that the following may be authorized: - Discharges from fire-fighting activities. - Fire hydrant flushing. - Waters used to wash vehicles without detergents. - Waters used to control dust. - Potable water sources. - Irrigation drainage and lawn watering. - Routine external building wash-down without detergents. 174 415 ILL. COMP. STAT. 5/11 to 5/13.7 (2014). 175 ILL. ADMIN. CODE tit. 35, §§ 309.101 to 309.191 (2014). 176 Id. § 309.141(a)–(g). 177 Id. §§ 302.201 to 302.213. - Pavement washwaters where toxic or hazardous material spills or leaks have not occurred and where no detergents are used. - Air conditioning and refrigerant conden- sate. For air transportation facilities, the scope of coverage under the Illinois general permit is lim- ited to discharges from the following operations: 1) vehicle maintenance, including rehabilitation, mechanical repairs, painting, fueling, and lubrica- tion; 2) equipment cleaning; and 3) airport deic- ing.178 Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities and Any Associated Corrective Action Requirements The Illinois NPDES regulations provide: “No person to whom an NPDES Permit has been is- sued may discharge any contaminant in his efflu- ent in excess of the standards and limitations for that contaminant which are set forth in his per- mit.”179 The regulations also establish effluent standards of general applicability that address:180 • Deoxygenating wastes. • Bacteria. • Total ammonia nitrogen (ammonia standards are further addressed in Title 35, Part 355). • Phosphorous. • pH. • Mercury. • Additional specified metals, oils, and phenols.181 However, the Illinois general permit for indus- trial stormwater discharges does not contain spe- cific effluent standards or limitations. The Illinois industrial stormwater general per- mit also does not contain specific corrective action requirements or specify compliance schedules. However, the general permit does require report- ing within 24 hours “any noncompliance which may endanger health or the environment.”182 178 Gen. NPDES Permit for Storm Water Discharges from Industrial Activities, supra note 19, at 2–3. 179 ILL. ADMIN. CODE tit. 35, § 304.141(a) (2014). 180 Id. §§ 304.101 to 304.142. 181 Id. § 304.124. 182 Gen. NPDES Permit for Storm Water Discharges from Constr. Site Activities, Attachment H, supra note 19.

41 Identify Any Required or Recommended BMPs The Illinois industrial stormwater general per- mit defines BMPs as “schedules of activities, pro- hibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the State…includ[ing] treatment requirements, oper- ating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste dis- posal, or drainage from raw material storage.”183 The only BMP specified in the Illinois indus- trial stormwater general permit for air transpor- tation facilities is that if storage piles of salt are used for deicing, such piles must be enclosed or covered to prevent exposure to precipitation, unless there are no stormwater discharges from the pile.184 The Illinois industrial stormwater general per- mit requires BMPs to be taken into account in preparing an SWPPP for a facility. SWPPP requirements for BMPs include the following:185 • Describe and ensure implementation of prac- tices that are to be used to reduce pollutants in stormwater discharges. • Provide narrative descriptions of the follow- ing: - Nature of industrial activities conducted at site. - Materials, equipment, and vehicle man- agement practices employed to minimize contact of significant materials with the stormwater dis- charges. - Existing or future structural and non- structural control measures and practices to re- duce pollutants in stormwater discharges. - Industrial stormwater discharge treat- ment facilities. - Methods of onsite storage and disposal of “significant materials.”186 - Describe stormwater management con- trols to be implemented, including: - Stormwater pollution prevention per- sonnel. - Preventive maintenance procedures and frequencies. - Good housekeeping. - Spill prevention and response. 183 Id. 184 Id. at 4. 185 Id. at 6–9. 186 Id. at 11. • Stormwater management practices, including consideration of the following: - Containment. - Oil and grease separation. - Debris and sediment control. - Waste chemical disposal. - Stormwater diversion. - Covered storage or manufacturing areas. - Mercury switch removal and recycling. - Stormwater reduction. - Sediment erosion prevention. - Employee training. - Inspection procedures. • Describe appropriate elements of other pro- gram requirements, including: 1) Spill Prevention Control and Countermeasures Plans required un- der CWA Section 311 and implementing regula- tions, and 2) Best Management Programs under 40 C.F.R. § 125.100. Summarize Any Administrative or Judicial Deci- sions Interpreting Illinois’ General Industrial Stormwater Permit The research did not find any Illinois adminis- trative decisions or case law interpreting the Ill. GP or EPA regulations regarding stormwater dis- charges associated with industrial activities at air transportation facilities. 3.2.7 Texas The TCEQ administers the NPDES permit pro- gram in Texas. The current Texas Pollutant Dis- charge Elimination System (TPDES) General Permit for Stormwater Discharges Associated with Industrial Activiy (Tx. GP) was issued effec- tive August 13, 2011, and expires on August 13, 2016. Identify Any Independent State Legal Authority for Regulating Stormwater Discharges Associated with Industrial Activity TCEQ is authorized to issue NPDES permits pursuant to Texas Water Code Section 26.027, and Texas Water Code Section 26.040 specifically authorizes TCEQ to issue general NPDES per- mits. Texas Water Code Section 26.029 provides that permit conditions shall include permit dura- tion, location of point of discharge, the maximum quantity of waste allowed to be discharged, and monitoring and reporting requirements. TCEQ’s regulations governing the state’s NPDES permit program are set forth in Title 30

42 of the Texas Administrative Code. The regula- tions provide a 5-year term for general permits, and further provide that if a general permit is not renewed, the discharger must apply for an indi- vidual permit.187 TCEQ has adopted the effluent guidelines and standards in EPA’s regulations at 40 C.F.R., unless such federal guidelines and standards are less stringent than those estab- lished by the Texas Water Code or the TCEQ regulations.188 TCEQ has also adopted the 40 C.F.R. criteria and standards for imposing tech- nology-based treatment requirements under CWA Section 301(b) and Section 402, as well as the 40 C.F.R. effluent standards and prohibitions for toxic pollutants.189 Identify Any Provisions Distinguishing Between the Obligations of a Facility Owner and Operator The research found no provisions distinguish- ing between the obligations of a facility owner and operator in the Texas Water Code or the TCEQ regulations. With respect to air transportation facilities, the Tx. GP provides: Airport authorities and airport tenants are encouraged to work in partnership to develop and implement a [SWPPP]. Tenants of the airport facility include air pas- senger or cargo companies, fixed based operators, and other parties who have contracts with the airport author- ity to conduct business operations on airport property and whose operations result in storm water discharges associ- ated with industrial activity. Even with a shared [SWPPP], each entity at an airport that meets the applica- bility requirements of this permit is required to obtain permit coverage.190 The Texas industrial stormwater general per- mit further provides that if the airport authority, tenants, and other FBOs share an SWPPP, then the tenants and FBOs that conduct deicing opera- tions must provide the airport authority with a record of the types and monthly quantities of deic- ing chemicals that the permittee uses (including MSDS); the permit states that this requirement applies to all deicing chemicals, in addition to gly- cols and urea (e.g., potassium acetate).191 187 30 TEX. ADMIN. CODE § 205.5 (2014). 188 Id. § 305.541. 189 Id. §§ 308.1, 314.1. 190 Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., supra note 20, at 131. 191 Id. at 130. Limitations on Scope of Permit Coverage at Air Transportation Facilities The Tx. GP sets forth a number of general limi- tations on the scope of permit coverage.192 Specifi- cally, the general permit is not applicable to: • Return flows from irrigated agriculture or ag- ricultural stormwater runoff.193 • Discharges authorized by another TPDES permit, unless: - The discharge meets requirements for coverage under the general permit. - The other permit does not contain numeric water quality-based effluent limitations for the discharge. - BMP requirements of the other permit are continued as part of SWPPP. - Continued coverage under the other permit is not required, as determined by the Executive Director of TCEQ. - A previous application or permit was not denied, terminated, or revoked as a result of en- forcement or water quality-related concerns. • Stormwater discharges from construction ac- tivity, unless the combined stormwater discharges from industrial activity and construction site run- off meet one of the following criteria: 1) author- ized under a separate TDPES permit, 2) author- ized under a separate NPDES permit, or 3) TPDES or NPDES permit coverage is not re- quired. • Stormwater discharges for salt storage piles. • Stormwater discharges mixed with non- stormwater ones, unless: - The nonstormwater source is authorized under a separate TPDES permit, or - The nonstormwater source is one of the following: 1) emergency firefighting activities and uncontaminated fire hydrant flushings; 2) potable water sources; 3) lawn watering and similar irri- gation drainage; 4) routine external washing of buildings (without use of detergents or other chemicals); 5) uncontaminated air conditioning, compressor, and steam condensate, and conden- sate from outside storage of refrigerated gases or liquids; 6) foundations or footing drains where flows are not contaminated with pollutants; 7) uncontaminated water used for dust suppression; 8) springs and other uncontaminated ground wa- 192 Id. at 26–29. 193 See id. at 17 (introductory paragraph).

43 ter; and 9) incidental windblown mist from cooling towers. • Discharges that would cause or contribute to a violation of water quality standards, or that would fail to protect and maintain existing desig- nated uses of receiving waters. • Discharges of constituents of concern to im- paired water bodies for which there is a TMDL, unless the discharges are consistent with the ap- proved TMDL. In addition, the general permit does not au- thorize discharges that would adversely affect a listed endangered or threatened species or its critical habitat. The general permit provides that additional limitations may apply to discharges to the Edwards Aquifer Recharge Zone or to specific watersheds and water quality areas.194 The Tx. GP contains certain limitations specific to air transportation facilities.195 • The general permit applies to stormwater discharges from the following activities: - Air Transportation, Scheduled (SIC Code 4512). - Air Courier Services (SIC Code 4513). - Air Transportation, Nonscheduled (SIC Code 4522). - Airports, Flying Fields, and Airport Ter- minal Services, including aircraft maintenance and fueling (SIC Code 4581). • Permit coverage is required only for storm- water discharges from areas where the following activities are performed: - Vehicle maintenance, including rehabili- tation, mechanical repairs, painting, fueling, and lubrication. - Equipment cleaning operations. - Deicing operations (including anti-icing, unless otherwise indicated). • Applies to runoff from materials storage or handling areas but does not authorize discharge of process wastewater from material storage or handling areas, including contaminated stormwa- ter. • Does not authorize discharge of wastewater associated with washing aircraft, ground vehicles, runways, or equipment 194 Id. at 31. 195 Id. at 128–29. • Does not authorize dry weather discharge of deicing chemicals (discharge resulting from snow- melt is not dry weather discharge). Monitoring Benchmarks or Effluent Limitations at Air Transportation Facilities, and Any Associated Corrective Action Requirements The Texas general permit for stormwater dis- charges associated with industrial activities con- tains daily maximum numeric effluent limitations for “hazardous metals” that are applicable to all industry sectors.196 The numeric effluent limita- tions for the following metals, in mg/L, apply to discharges to inland and tidal waters, unless oth- erwise indicated: • Arsenic: 0.3. • Barium: 4.0. • Cadmium: 0.2 (inland); 0.3 (tidal). • Chromium: 5.0. • Copper: 2.0. • Lead: 1.5. • Manganese: 3.0. • Mercury: 0.01. • Nickel: 3.0. • Selenium: 0.2 (inland); 0.3 (tidal). • Silver: 0.2. • Zinc: 6.0. Annual monitoring is required for these metals, prior to December 31 for each annual monitoring period, and the results must be recorded on a Dis- charge Monitoring Report (DMR). A copy of the DMR must be retained at the facility or made readily available for review at the request of the TCEQ or local pollution control agency, by March 31 following the annual monitoring period, except that the DMR must be submitted to the TCEQ if the results indicate a violation of one or more nu- meric effluent limitations. A permittee may qualify for a waiver from the monitoring requirement for one or more of the above metals by certifying that the facility does not use a raw material or produce an intermediate or final product that contains the metals, or that raw materials, intermediate products, or final products containing a hazardous metal are never exposed to stormwater or runoff. The Tx. GP contains sector-specific benchmark monitoring requirements for air transportation facilities.197 196 Id. at 55–58. 197 Id. at 131–32.

44 • Benchmark monitoring is required only for permittees conducting deicing activities that have used more than 100 tons of urea, or more than 100,000 gallons of ethylene glycol, in any calendar year in the 3 years prior to submittal of a notice of intent for general permit. Applicable volumes of deicing materials refer to the combined activities and usage at the airport as a whole, not inde- pendently to each carrier or operator. • Sampling is not required of a permittee who does not use the listed chemicals, even if the air- port meets volume criteria triggering monitoring. • Sampling is required at all outfalls that dis- charge runoff from areas where deicing with urea or ethylene glycol is performed at an airport. • Permittees required to conduct monitoring must collect total number of benchmark samples required for the year during the deicing season, when deicing activities are occurring. • Benchmark values: - COD—60mg/L. - Ammonia-Nitrogen—2.5 mg/L. - pH—6.0-9.0 The Tx. GP contains the following corrective action requirements.198 • Within 24 hours of becoming aware of non- compliance with any effluent limit that may endanger human health or safety or the environ- ment, the permittee must report the noncompli- ance to the TCEQ orally or by fax. • Within 5 working days of becoming aware of noncompliance, permittee must submit a written report to the TCEQ containing: - Description of the noncompliance and its cause. - Potential danger to human health or safety or the environment. - Period of noncompliance, including exact dates and times. - Anticipated time the noncompliance is expected to continue, and - Steps taken or planned to reduce, elimi- nate, and prevent recurrence of the noncompli- ance, and to mitigate its adverse effects. • Any violation that deviates from the permit- ted effluent limitation by more than 40 percent must be reported in writing to TCEQ within 5 working days. Other noncompliance must be reported in writing to the TCEQ as follows: 198 Id. at 66–67. - Noncompliance with the effluent limita- tion for a discharge subject to federal numeric effluent limitations guidelines199 must be recorded on a DMR and submitted to the TCEQ by March 31 of the following year - Noncompliance with the effluent limit for hazardous metals identified in the general permit must be recorded in a DMR and reported at least once per year. - Any other noncompliance with the gen- eral permit must be reported to the TCEQ by March 31 following the calendar year in which the noncompliance occurred. • For exceedances of benchmark values, the fa- cility’s Pollution Prevention Team must investi- gate the cause and document the results of its in- vestigation in the SWPPP within 90 days of the sampling event where the exceedance was discov- ered.200 The investigation must identify: - Any additional sources of pollution, such as spills, that may have occurred. - Necessary revisions to the “Good House- keeping Measures” section of the SWPPP. - Additional BMPs, including a schedule to install or implement the BMPs. - Other parts of the SWPPP for which revisions are appropriate. The Texas industrial stormwater general per- mit does not contain additional corrective action requirements for exceedances of the permit’s numeric effluent limitations for “hazardous met- als” or for exceedances of its monitoring bench- mark values specifically applicable to air trans- portation facilities. Identify Any Required or Recommended BMPs The Texas industrial stormwater general per- mit recommends the following BMPs common to all covered industrial activities: • Grading, berming, and curbing to prevent runoff of contaminated flows and divert run-on away from these areas. • Locate materials, equipment, and activities in such a way that leaks are contained in existing containment and diversion systems. • Clean up leaks and spills promptly using dry methods. 199 40 C.F.R. §§ 400-471 (2014). 200 Gen. Permit to Discharge Under the Tex. Pollutant Elimination Sys., supra note 20, at 71.

45 • Use drip pans and absorbents under or around leaky vehicles and equipment or store indoors where feasible. • Use spill/overflow protection equipment. • Drain fluids from equipment and vehicles prior to on-site storage or disposal. • Perform cleaning operations indoors, within storm resistant shelters, or within bermed areas that prevent runoff and run-on and capture over- spray. • Ensure waste, garbage, and debris are not discharged to receiving waters. • Minimize generation of dust and off-site tracking of raw materials, intermediate products, final products, or waste materials. • Divert, infiltrate, reuse, contain, or otherwise reduce stormwater runoff. 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, which contain narrative description of certain BMP requirements. The Texas industrial stormwater general per- mit contains SWPPP requirements common to all covered industrial activities, as well as sector- specific SWPPP requirements. The common SWPPP requirements that related to considera- tion of BMPs include the following.201 • Establish practices and control measures to prevent or reduce pollution in stormwater dis- charges and ensure compliance wither the terms of the general permit: - Ensure that areas of the facility that con- tribute or potentially contribute pollutants to stormwater discharges are maintained in a clean and orderly manner - Good housekeeping measures: 1) must include measures to eliminate or reduce exposure of garbage and refuse materials to precipitation or runoff prior to disposal; 2) typical measures in- clude activities performed on a daily basis during course of normal work activities, and 3) must be incorporated as part of the employee training pro- gram. • Address soil erosion and sedimentation by evaluating, at a minimum, use of the following: 1) soil stabilization through vegetative cover, 2) con- touring slopes, 3) paving, and 4) installation of structural controls. 201 Id. at 42–49. • Establish a maintenance program for storm- water structural controls, including velocity dissi- pation devices. Structural controls must be in- spected regularly, and maintenance frequencies must be established for each of the structural con- trols. • Spill prevention and response measures: - Identify areas where spills could con- tribute pollutants to stormwater discharges. - Develop and implement procedures to minimize or prevent contamination of stormwater from spills. - Require drums, tanks, and other con- tainers to be clearly labeled. - Clearly mark hazardous waste contain- ers that require special handling, storage, use, and disposal. - Develop and implement specific spill prevention, detection, and clean-up procedures and techniques. - Develop procedures to notify appropriate facility personnel, emergency response agencies, public health or drinking water supply agencies, and other regulatory agencies of a reportable quantity spill or other release of oil or a hazard- ous substance. - Make available to facility personnel ma- terials and equipment necessary for spill clean up. - Develop and maintain an inventory of spill clean-up materials and equipment. - Incorporate the above measures as part of the employee training program. The Texas industrial stormwater general per- mit contains the following additional SWPPP requirements for air transportation facilities that relate to consideration of BMPs.202 • Site Map, which must include the following information: - Aircraft and runway deicing operations. - Fueling stations. - Aircraft, ground vehicle, and equipment maintenance and cleaning areas. - Storage areas for aircraft, ground vehi- cles, and equipment awaiting maintenance. - Location of each tenant at the site that conducts industrial activity subject to coverage under this section of the general permit. • Potential pollutant sources, including: - Maintenance and cleaning of aircraft, runways, ground vehicles, and equipment. 202 Id. at 129–31.

46 - Deicing of aircraft and runways. - Record of types and monthly quantities of deicing chemicals used by permittee. • Good housekeeping measures, including: - Minimize potential for stormwater con- tamination from areas used for maintenance of aircraft, ground vehicles, and equipment. - Clearly demarcate aircraft, ground vehi- cle, and equipment cleaning areas on the ground using signage or other appropriate means, and minimize the potential for contamination of stormwater runoff from these areas. - Store all aircraft, ground vehicles, and equipment awaiting maintenance in designated areas only, and minimize the potential for con- tamination of stormwater runoff from these areas. - Minimize the potential for stormwater contamination from materials storage areas, and maintain in good condition and plainly label any containers of stored materials. - Minimize, and where feasible eliminate, the use of urea and glycol-based deicing chemi- cals, in order to reduce the aggregate amount of deicing chemicals used or lessen the environ- mental impact of such chemicals. - Minimize the potential for stormwater contamination from runways as a result of deicing operations by evaluating and adjusting as neces- sary the application rates of deicing materials, consistent with considerations of flight safety. - Evaluate the application rates for deic- ing chemicals, and adjust as necessary, consistent with considerations of flight safety, to help mini- mize contamination of stormwater runoff from aircraft deicing operations. - Identify the deicing season by determin- ing the seasonal timeframe during which deicing activities typically occur at the facility: - Implementation of control meas- ures, including any BMPs, facility inspections, and monitoring must be conducted with particular emphasis throughout the defined deicing season. - If the deicing chemical usage thresholds of 100,000 gallons of glycol or 100 tons of urea are met, the identified deicing season is the timeframe during which the required bench- mark monitoring must be conducted. • Consider structural controls, including: - Capturing and containing chemicals used in deicing or anti-icing activities. - Containing activities to specific areas where runoff may be captured and either treated, hauled away for disposal, or disposed of to the sanitary sewer. - Narrative description of control meas- ures considered, including rationale for selecting or rejecting alternatives. • Facilities that conduct deicing or anti-icing operations must evaluate operating procedures on an annual basis to consider alternative practices that may reduce the overall amount of chemicals used, or otherwise lessen the environmental impact of the pollutant. Annual review must include consideration of alternative chemicals used for deicing and anti-icing. The SWPPP must include narrative discussion of the annual alter- native practices review that includes a rationale for changes in practices or the decision to retain existing practices. BMPs must be developed and implemented to ensure against over-application of chemicals used as a part of deicing and anti-icing operations. • Inspection Requirements: - Routine facility inspection must occur at least once per week during deicing or anti-icing activities in areas where these operations take place, and records of these inspections must be maintained. - Comprehensive site inspection must be conducted annually using only qualified person- nel, during periods of actual deicing operations, if possible. If this is not practicable during active deicing because of the weather, inspection should occur during deicing season and when deicing ma- terials and equipment are in place. Summarize Any Administrative or Judicial Deci- sions Interpreting Texas’s MSGP Industrial Stormwater Permit The research did not find any TCEQ adminis- trative decisions or case law interpreting EPA’s stormwater regulations or the Tx. GP.203 3.3 Airport Survey Results 3.3.1 Telephone Interviews Five airports—SFO, JFK, Sea-Tac, O’Hare, and DFW—were selected for telephone interviews. SFO declined to participate in an interview. Phone interviews were conducted using the fol- lowing questions: 203 The TCEQ administrative decisions are not avail- able on the agency’s Web site.

47 • Please identify the permittee under the state's general permit governing stormwater dis- charges associated with industrial activity with respect to stormwater discharges at or from the airport. That is, identify the entity that applied for the permit (or completed the notice of intent) and obtained coverage under the permit. • Please identify any co-permittees (i.e., any other parties listed as operators or discharges on the permit application or notice of intent or desig- nated as a responsible party under the terms of the permit). • Does the airport authority retain a consult- ant to prepare and update its SWPPP, to conduct required sampling, to prepare required reports, and to recommend and/or implement BMPs as may be necessary in response to any exceedance of permit benchmarks for specified water quality parameters? If not, is the airport authority staff responsible for ensuring that the airport complies with stormwater permit requirements, including preparation and implementation of the SWPPP? • Are individual airport tenants (i.e., airlines and air cargo companies) responsible for prepar- ing or implementing components of the SWPPP, including BMPs, for the specific areas of the air- port occupied or used by the tenant? • How does the airport ensure that airport ten- ants comply with stormwater permit require- ments or the applicable provisions of the SWPPP, including implementation of BMPs? Are airport tenants required to comply with such require- ments by the terms of their leases (i.e., by con- tract)? What remedies does the airport authority have if a tenant fails to perform its stormwater management responsibilities? • Has any regulatory agency issued a notice of violation or taken any other enforcement action for any alleged failure to comply with the terms of the general permit for stormwater discharges at or from the airport? If so, did the agency issue such a notice to or take such an action against only the airport authority, or did the agency also name any tenants of the airport? • Has the airport authority or any of its ten- ants (to the extent known) ever applied for cover- age (i.e., completed a notice of intent) under the state's general permit for stormwater discharges from construction sites with respect to site devel- opment activities at the airport? If so, has the state's general permit governing stormwater dis- charges from construction sites imposed any addi- tional stormwater management requirements on stormwater discharges from the airport, or has it been sufficient for the airport to meet the re- quirements of the state's general permit govern- ing stormwater discharges associated with indus- trial activity? • Has the airport authority been notified by the municipality in which the airport is located that stormwater discharges at or from the airport are regulated under a stormwater permit governing discharges from the municipality's stormwater system? If so, has the municipality imposed any additional stormwater management requirements on stormwater discharges at or from the airport, or has it been sufficient for the airport to meet the requirements of the state's general permit govern- ing stormwater discharges associated with indus- trial activity? Summaries of interviews conducted with air- port personnel from JFK, Sea-Tac, O’Hare, and DFW follow and are also summarized in Table 3 (see Attachment). John F. Kennedy International Airport The Port Authority is authorized to discharge stormwater at JFK in accordance with NYSDEC Permit No. 2-6308-0001/00016, SPDES No. NY- 0008109. The Port Authority had requested that the state consider tenants as co-permittees; how- ever, NYSDEC declined and the Port Authority is the sole permittee. The Port Authority hires a consultant to assist the airport in complying with the SPDES permit, including SWPPP preparation and implementa- tion. Each tenant or other entity that applies deic- ing chemicals is required by the permit to partici- pate in the development of the SWPPP for the airport. The Port Authority requires each tenant to prepare their own SWPPP for its review. The permit requires tenants to provide the Port Au- thority with monthly summaries of deicing chemi- cals used and quantities applied. The Port Au- thority requires tenants that perform deicing operations to obtain an operating permit with the Port Authority, which details the procedures for conducting operations at the airport, including complying with all applicable laws and regula- tions. The Port Authority also works closely with the tenants in the preparation of the permit- required annual deicing report. Tenant lease agreements with the Port Author- ity outline the rules for operation at the airport and require compliance with applicable laws and regulations. The Port Authority issues internal breach of rules violations to tenants for noncom- pliance with agreements. Currently, the Authority

48 does not have a fee structure in place for imposing fines on tenants for violations. NYSDEC requires the Port Authority to apply as the permittee for construction projects at JFK. The Authority requires the contractor to prepare the Notice of Intent for the CGP, and the applica- tion is submitted jointly. Seattle-Tacoma International Airport The Port of Seattle is authorized to discharge stormwater at Sea–Tac in accordance with NPDES Waste Discharge Permit No. WA-002465- 1. The Port of Seattle is named as the permittee. The airport’s permit consists of three parts: 1) industrial activities, 2) other activities, and 3) construction activities. The discharge require- ments (constituents and limitations) for each of these parts are different. Consultant support was used to develop the original SWPPP for the airport; however updates are made by the Port of Seattle. Consultants con- duct the stormwater sampling and analysis and the Port of Seattle prepares and submits the Dis- charge Monitoring Reports (DMRs). BMPs are updated by the airport with consultant support when performance requirements dictate. Airport tenants are responsible for implement- ing components of the SWPPP. Using industry standards, the Port of Seattle provides Water Pol- lution Prevention Plan (WPPP) guidance manuals (which are considered to be “mini-SWPPPs”) to the tenants. These WPPPs are geared toward good housekeeping and operational and source controls. The Port of Seattle manages risk associated with stormwater violations through terms and conditions of leases with tenants and contracts for construction projects. Airport leases contain con- ditions that allow the airport to inspect leaseholds at any time. Contract and lease language requires the tenants to abide by the airport rules and regu- lations. The Port of Seattle issues Corrective Ac- tion Reports to address violations and coordinates activities through the Lease Manager. The Port of Seattle must report all deicing and anti-icing events of either aircraft or runways on an annual basis and must include the volumes of each type of deicing and anti-icing material used each day by each airline and the Permittee. Permit violations occur in generally two types: 1) construction related turbidity and 2) pH varia- tions at the outfalls. Other source-specific releases also occur occasionally. Tenants are not typically named by the regulator. The Port of Seattle is named and passes down corrective action costs and fines, if warranted, to the tenant or contrac- tor responsible for a specific violation. However, there is one example of an agency going directly to a construction contractor for repeated violations and lack of response to airport corrective actions. Part 3 of the NPDES Permit covers construc- tion activities at the airport. The permit requires the Port of Seattle as the permittee to implement a programmatic SWPPP detailing all components of the airport’s construction management pro- gram. The erosion and sediment control compo- nent must be attached to bid packages when seek- ing contractors to allow the contractor sufficient time to plan implementation. At construction sites for which a lease, easement, or other use agree- ment has been obtained from the permittee, the Port of Seattle as the permittee must be responsi- ble for the implementation of an SWPPP. The per- mit requires the Port of Seattle to implement pro- cedures for reviewing the SWPPP with contractors and subcontractors prior to initiating construction activities. While the Port of Seattle as the permittee is ultimately responsible for im- plementation of the SWPPP, both the permittee and the contractor/subcontractor may be held li- able for violations of the permit conditions or the water quality standards. The airport is a co-permittee (or secondary per- mittee) on a Phase 2 municipal stormwater per- mit. The Phase 2 permit area is the community bordering the airport, with some possible overlap. In addition, the airport occasionally has projects (e.g., consolidated rental car facility and off-site parking) that are negotiated with the regulators to be outside of the industrial activity of the air- port. In these cases, a separate permit is issued. Chicago O’Hare International Airport The City of Chicago, Department of Aviation (CDA) is authorized to discharge stormwater at O’Hare in accordance with NPDES Permit IL00022S3. CDA is named as the permittee. A consultant prepares the SWPPP and the BMPs for the airport. Stormwater monitoring is conducted by the airport and CDA prepares and submits monthly DMRs for each applicable outfall to IEPA. The CDA also provides IEPA with in- formation on the deicing season including, but not limited to, the amount of deicers used, dates and location of deicer use, and the rain and snowfall amount. The deicing information is submitted with the quarterly compliance status report.

49 Individual airport tenants are responsible for implementing the BMPs developed for the airport. A few airport tenants have developed their own SWPPP and have obtained coverage under their own NPDES permit. CDA is required to facilitate independent inspections and monitoring proce- dures of airport tenants at least once per year to evaluate compliance with the SWPPP and NPDES Permit. Airport Group International, which is the pri- mary fueler at the airport, and the U.S. Postal Service hold individual NPDES Permits for their operations at the airport. Construction projects at the airport are author- ized in accordance with the Illinios General NPDES Permit for Storm Water Discharges from Construction Site Activities. CDA applies as the permittee for coverage under the CGP. Dallas/Fort Worth International Airport DFW and airport tenants are authorized to dis- charge stormwater under the TPDES MSGP. DFW is also authorized to discharge first flush stormwater and other permitted flows from seven individually permitted outfalls under TPDES In- dividual Permit No. WQ0001441 000. Those out- falls authorized under the Individual Permit are located downstream of many of the major storm- water outfalls supporting DFW's Central Termi- nal Area. Stormwater discharges at outfalls iden- tified in the Individual Permit are authorized only under the Individual Permit and not the general permit for DFW. The airport is not subject to the stormwater monitoring and sampling require- ments identified in the TPDES MSGP for outfalls covered under the Individual Permit. However, the airport is required to implement and maintain an SWPPP. The airport is responsible for compliance with the Individual Permit, including reports, certifica- tions, sampling, and updates to the SWPPP that are required to satisfy the permit requirements performed by the airport. Quarterly inspections and visual monitoring are also conducted by the airport to ensure good housekeeping is in place and BMPs are working effectively. Airport tenants discharging stormwater associ- ated with an industrial activity are required to obtain coverage under the MSGP, develop and implement an SWPPPP specific to their respective operation on their leasehold and operational area, or operate under the provisions established in the airport’s SWPPP. Tenants operating under the terms of the airport's SWPPP are required to des- ignate on-site company representatives to be included on the pollution prevention team. Copies of the tenant's SWPPP and NOI must be sent to the Environmental Affairs Department (EAD) to be incorporated into the airport's stormwater records. Tenant SWPPPs must be updated as needed by the tenant. It is the tenant's responsi- bility to inform EAD of any changes to the SWPPP and to provide EAD with a copy of the current updated plan. Stormwater discharges from airport tenants are not covered under the Individual Permit and are subject to the require- ments identified in the TPDES MSGP. Tenants subject to NPDES or TPDES regula- tions are responsible for conducting regular inspections and preventative maintenance for all tenant specific stormwater structural controls located on their leasehold area. The respective tenant is required to maintain records of the inspections and make these records available to the appropriate jurisdictional authority. Airport tenants operating under the airport's SWPPP are required to complete a nonstormwater discharge certification for their leasehold. DFW conducts annual Comprehensive Site Compliance Evaluations to ensure upkeep with TPDES permit requirements. Tenant leases con- tain provisions pertaining to environmental rules and regulations. Additionally, the Chapter 6A Storm Water Rules and Regulations were just added to the DFW Airport Board of Rules and Regulations. EAD has prepared a document to educate all airport tenants on which nonstormwater dis- charges are allowed by the TPDES permit and which are not allowed. EAD requests that each tenant complete and sign the Non-Stormwater Discharge Assessment and Certification. The operator of construction projects is respon- sible for obtaining coverage for stormwater dis- charges under the CGP. DFW approves construc- tion SWPPPs and conducts inspections at tenant sites. DFW sometimes imposes additional storm- water management requirements on discharges from construction sites. For example, the operator may be required to meet specific limits for pH as detailed in the Individual Permit that differ from those included in the CGP. 3.3.2 Airport Survey During Phase II, an airport survey was con- ducted to ascertain the variability in permitting arrangements between airport owners and tenant operators and service providers and collect and

50 organize information on the BMPs currently being implemented at airports. The survey was intended to elicit specific feed- back on NPDES permit compliance and strategies used to enforce tenant compliance at large- and medium-sized airports. The questionnaire was distributed to 20 airports, and 13 were completed by the end of March 2014, which represents a re- sponse rate of 65 percent. Table 4 (see Attach- ment) summarizes the number of surveys sent, number of responses received, and the response rate as percentage organized by hub size and co- permittee status. Types and Number of Tenants and Operations The survey revealed that nearly all of the re- spondents (92 percent) have more than 20 tenants that have the potential to impact the stormwater, with 69 percent having 30 or more tenants, as shown in Figure 1. Figures are contained in the Attachment. In relation to the type of tenants that conduct operations at these airports with the potential to impact stormwater (Figure 2), 100 percent of respondents identified tenants in the commercial aviation and charter categories, 92 percent in the air freight category, and approximately 77 percent in the maintenance, repair, and overhaul (MRO) category. Less than half of the respondents (38 percent) have military type tenants. Aside from these main categories, 69 percent of respondents identified other type of tenants, including: food service providers, ground service providers, fuel consortium airport manufacturers, rental cars operations, shuttle bus operations, and general aviation, as the most listed. As for the types of operations conducted by these tenants (Table 5 in Attachment), all of the respondents identified vehicle/equipment fueling and maintenance, aircraft fueling and mainte- nance, vehicle/equipment washing, aircraft deic- ing, cargo loading/unloading, construction, and solid waste handling and storage. The majority of the respondents, 92 percent, also identified land- scaping, pesticides/herbicides applications, and chemical handling and storage, while more than half identified painting and striping, fire fighter training, aircraft washing, pavement deicing, snow removal, and rubber removal. Permit Information As far as the number of stormwater permits that each of the airports hold, nearly half of the respondents have five permits or more, while the other half has two or less, as illustrated in Figure 3. Industrial stormwater general permits and in- dividual NPDES permits were the most common permits identified by respondents, with 69 and 53 percent respectively (Figure 4). Nearly half of respondents also hold municipal stormwater per- mits, while 39 percent of respondents identified other types of permits, including construction gen- eral permits (identified by four out of five), pesti- cide general permits (two out of five), and wash- water land applications permit (one out of five). Figure 4 presents this information. For the most part (61 percent) respondents indicated that the permits held by the airport authority do not differentiate between airside and landside operations (Figure 5), with a few excep- tions, where a specific activity is linked either to airside or landside (e.g. deicing is linked to airside requirements, while landscape pertains to land- side). As for the authority issuing the permit (Figure 6), the vast majority, 92 percent, of the respon- dents identified the state; while 23 and 15 percent of respondents also identified the federal or local authority, respectively. Forty-six percent of the respondents indicated the airport authority is the sole permittees (Fig- ure 7). Almost 31 percent indicated that both the airport authority and tenants are the permittees, while roughly 8 percent indicated the tenants to be the permittees. Few exceptions were specified. In one of these cases, the tenants and airport are co-permittees, while in another, the airport— which is the permittee—requires the contracted operator of the fuel farm and two geographically separate operations to obtain their own permits to cover their operations. Regarding the recognition of co-permittees by the permit authority (Figure 8), responses were almost equally distributed. Approximately 38 per- cent of the respondents indicated that the permit authority recognizes co-permittees, nearly 31 per- cent have permits where no co-permittees are rec- ognized, and 23 percent specified other variations including: • The airport authority is a co-permittee on a permit issued to tenants, and they all follow the same SWPPP, managed by the airport authority. • Tenant and airport authority all have sepa- rate permits but share the same SWPPP, man- aged by the airport authority.

51 • The tenants are not co-permittees, but the airport authority identifies them in an annual management plan that is then submitted to the environmental authority. Nevertheless, only 25 percent of the respon- dents indicated that the permit includes co-permittees (Figure 9), while approximately 59 percent of respondents indicated that the permit does not include co-permittees. The few exceptions noted, roughly 17 percent, were similar to the ones described in the previous paragraph. Stormwater Pollution Prevention Plan (SWPPP) 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, almost 77 percent, expressed they were responsible for SWPPP, with tenants cov- ered under it and the airport overseeing compli- ance (Figure 10). Fifteen percent of the respon- dents indicated that the airport authority and tenants are responsible for implementing their own separate SWPPPs, and about 8 percent indi- cated that the SWPPP is jointly implemented. Few respondents (23 percent) indicated slight modifications to these statements including: • Airport authority reviews the SWPPP of ten- ants required to have their own permit and SWPPP. • Airport authority prepares the SWPPP and tenants are responsible for developing their own spill plan to meet permit requirements. With respect to the responsibility to prepare and update the SWPPP, there was a clear indica- tion that this responsibility lies with the airport authority, with more than half of the respondents either preparing or updating the SWPPP directly or hiring a consultant to do it. Only 8 percent indicated that the tenants retain their own con- sultant, different from the airport authority, to do it (Figure 11). The exception noted specifies that the airport authority reviews and provides com- ments to the tenants’ SWPPPs regardless of whether they are prepared by the tenant or a hired consultant. In relation to SWPPP and its components (Fig- ure 12), all respondents indicated the SWPPP is a written plan that incorporates BMPs and annual training. While 92 and 85 percent, respectively, indicated the plan incorporates a section on water quality monitoring and quarterly inspections, more than half of the respondents (69 percent) agreed the plan incorporates the creation and existence of an SWPPP team. The sections included to a lesser degree in the SWPPP are ten- ant-specific SWPPPs or standard operating proce- dures and annual site inspections certified by a professional engineer. In addition, all respondents agreed to have a Spill Prevention Control and Countermeasure (SPCC) Plan (Figure 13). Approximately 54 per- cent have a Spill Prevention Response (SPR) Plan and a few respondents indicated they have a Pre- paredness, Prevention, and Control (PPC) plan. Almost 31 percent have other types of plans in- cluding: • Integrated contingency plan (ICP) that incor- porates SWPPP, SPR, and Hazardous Waste Con- tingency Plan. • Stormwater Management Plan. • Airport SRP. Record Keeping Requirements In connection with the type of records airport authorities are required to keep (Figure 14), all or nearly all respondents have inspection and visual monitoring requirements. Approximately, 77 per- cent of respondents are required to keep records of aircraft and airside deicer/anti-icer application, while less than half are required to keep records of aircraft and airside deicer/anti-icer collection. Most of the other record requirements identified by respondents described more specifically the type of monitoring including: • Land disturbance activities. • Fueling operations. • Spill inventory. • Releases and changes to control measures due to releases. • Analytical sampling data. • Annual mass balance for aircraft deicing fluid (pavement not included) that details how much deicer is applied, collected, recycled, and dis- charged to wastewater treatment plant. Effluent Monitoring and Reporting Requirements In understanding the different types of effluent monitoring the permits require (Figure 15), there was an indication that the types of monitoring

52 more frequently used are visual inspections and sample collection and lab analysis, with approxi- mately 92 and 84 percent of the respondents re- spectively, selecting these. The other options were almost negligible, with the exception of one re- spondent indicating the permit requires no efflu- ent monitoring at all. In the cases where effluent monitoring is required, the regulatory threshold by which results are compared was almost equally distrib- uted (Figure 16). Approximately 42 percent of respondents must comply with a bench- mark/action level or numerical individual permit limit or standard, while 33 percent must comply with a numerical effluent limit. The frequency by which effluent monitoring oc- curs varies widely among respondents (Figure 17). Approximately 42 percent of respondents monitor on a monthly basis, 33 percent do so quarterly, and less than one-third of respondents require monitoring on an annual, weekly, or daily basis. A few exceptions were noted where the frequency will change after a specific discharge event or dur- ing the deicing season. In terms of reporting threshold exceedances (Figure 18), 75 percent of respondents are required to report to the permit authority, while 33 percent are only required to keep the records. Some of the exceptions specified included imple- menting a corrective action, while in others there is a requirement to report to the permitting authority quarterly regardless of threshold exceedances. When exceedances occur, approximately 55 per- cent of respondents are required to review BMPs (Figure 19). Less than a third of the respondents also indicated that they are required to perform follow-up monitoring or toxicity source evalua- tions. One of the exceptions described discussed the enforcement implications on the permit, where once the deicing limit is exceeded four times, a civil penalty is incurred and potentially an administrative order and schedule to achieve compliance are put in place. One-hundred percent of respondents are responsible for conducting monitoring (Figure 20). However, about 18 percent indicated that tenants are also responsible for this activity. The few exceptions referred to hiring a consultant to con- duct monitoring, and giving tenants the option of using airport authority test results related to their areas of operation. BMPs This section covers the use and effectiveness of nonstructural and structural BMPS, as well as enforcement mechanisms. In relation to the use of nonstructural BMPs (Figure 21), all respondents include language in the lease agreement that references stormwater regulation compliance and airport inspections of tenant facilities, while 58 percent indicated they have tenant reporting requirements. One-third of the respondents also require tenants to submit their self-inspections to the airport. The variation specified requires tenants to submit a document certifying compliance with the permit once a year. Overall, respondents consider these measures to be effective. The majority of these, roughly 64 percent, agree that nonstructural BMP measures are effective, while approximately 27 percent agree they are modestly effective (Figure 25). As for structural BMPs, approximately 92 per- cent of respondents use spill kits and oil-water separators. Two-thirds use containment, 58 per- cent use treatment for deicing effluent and desig- nated wash facilities, and 50 percent use wet retention. Other structural BMPs were selected by respondents less than a third of the times (Figure 22). Airport authorities use a variety of mecha- nisms to enforce tenant compliance with stormwa- ter permits. The majority of the respondents, about 83 percent, use warnings (Figure 23). Ap- proximately 67 percent use notices of violation or demands for corrective actions to comply with lease obligations. Half of respondents use lease termination, while one-third use fines. Fifty per- cent of respondents identified other mechanisms, including: • Slight variations of notifications. • The use of all mechanisms in a progressive approach. • 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. • Airport authority does not enforce, as that is the responsibility of the regulatory agency. Approximately 64 percent of respondents agree that these enforcing mechanisms are effective, while nearly 37 percent agree they are moderately effective (Figure 25).

53 Along with these mechanisms—BMPs and enforcement—airport authorities have also im- plemented a variety of other initiatives to promote tenant compliance with stormwater permit requirements or SWPPP. Approximately 92 per- cent of the respondents use training, while almost 67 percent use awareness programs. The other programs are used less frequently by respondents. The exception noted quarterly meetings as an al- ternative initiative (Figure 24). However, most respondents, approximately 64 percent, agree that other initiatives are only mod- erately effective, while almost 37 percent consider them effective (Figure 25). From this perspective, airport authorities consider nonstructural BMPs and noncompliance enforcement mechanisms to be more effective than the alternative initiatives. There are several challenges in trying to enforce tenant compliance with the permit. Among the most cited by respondents are: • Tenant turnover, whether it be new tenants or a changing workforce within tenant groups. • Pursuing enforcement action over third party contractors or subtenants. • Oversight and following up on noncompliance issues, especially when there are several pro- grams being implemented at the same time. • Having lease language that requires tenants to comply with federal, state, and local environ- mental regulations, but not specifying what hap- pens if there is noncompliance. Permit Enforcement and Violation Resolution In relation to the enforcement authority, the majority of the respondents—approximately 92 percent—indicated that the state is ultimately the authority issuing permit violations. One third of the respondents received permit violation notifi- cations from the federal authority, while almost 17 percent received notifications from the local authority. The exception noted describes a coordi- nated effort between state and local authorities to perform follow-up inspections (Figure 26). More than half of respondents, nearly 59 per- cent, have received notices of alleged violations of stormwater permit requirements, while almost 42 percent have not (Figure 27). When notices of alleged violations have been issued, all the respondents indicated that the no- tice has been issued to the airport authority, while approximately 29 percent indicated the no- tice had been issued to tenants (Figure 28). From the exceptions noted, in one case the airport au- thority negotiated with the state’s environmental authority to issue the notice to the airport author- ity, rather that 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. Approximately 72 percent of respondents indi- cated the alleged violations were resolved through corrective action, while nearly 29 percent resolved them via administrative order, and 14 percent have not resolved them yet (Figure 29). The other resolutions specified include: 1) settlement and stipulated order and 2) the use of the water qual- ity and airport studies as an educational tool to reflect the actual conditions of the stormwater systems. In the cases where the alleged violation was resolved via corrective action, approximately 84 percent of the respondents indicated that the air- port authority was responsible for implementing the corrective action, while almost 17 percent indicated that either tenants implemented it or that it was not applicable to their case. The excep- tion noted describes a variation to the airport authority implementing the corrective action, with tenants being very involved in the selection of the solution (Figure 30). As for which parties were involved in the reso- lution of the alleged violation via administrative order or litigation, 57 percent of the respondents indicated that this was not applicable to their spe- cific case. Approximately 43 percent indicated the airport authority was involved, while 14 percent indicated tenants were also part of the resolution (Figure 31). 3.4 Permitting Strategies 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 is language in the lease agreements that references stormwater regulation compli- ance. All respondents indicated that the stormwater permits require the airport authorities to have an SWPPP. There was clear indication that the responsibility for SWPPP implementation lies with the airport authority, as the majority of the respondents expressed they were responsible for