BILL REQ. #:  S-4392.2 

READ FIRST TIME 02/09/04.   

     AN ACT Relating to conditioning industrial and construction storm water general discharge permits; and adding a new section to chapter 90.48 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 90.48 RCW to read as follows:
     (1) The department is authorized to issue storm water general permits for industrial and construction dischargers under the national pollution discharge elimination system of the federal clean water act if such permits are required to comply with federal standards or are necessary for the effective implementation of this chapter, unless otherwise exempted in (c) of this subsection. The department shall use discretion in developing, implementing, and enforcing the industrial and construction storm water general permits in accordance with the provisions of this section:
     (a) The department shall use narrative effluent discharge limits in establishing permittee compliance conditions in the permit unless subject to conditions of (c) of this subsection.
     (b) Compliance with narrative effluent discharge limits is presumed when the permittee has satisfied permit requirements, including:
     (i) Permit conditions for planning, sampling, monitoring, reporting, and recordkeeping; and
     (ii) Implementation, adaptive management, and maintenance of best management practices for on-site pollution control sufficient to satisfy federal and state technology standards.
     (c) The following are exempt from the provisions of this section:
     (i) Federally mandated industry specific effluent guidelines;
     (ii) State developed industry specific and/or performance based permits;
     (iii) Effluent discharge standards based on a completed total maximum daily load analysis or other pollution control measures; or
     (iv) Completed demonstration of reasonable potential to cause or contribute to violation of water quality standards.
     (2) The department may require reporting of discharge sampling, discharge visual monitoring, and periodic permittee evaluation of best management practices, for as long as deemed necessary, to determine their effectiveness in managing pollutants in storm water.
     (3)(a) The permittee must not be causing or have the reasonable potential to cause or contribute to a violation of water quality standard. Where a discharge has already been authorized under a national pollution discharge elimination system storm water permit and it is later determined to cause or have the reasonable potential to cause or contribute to the violation of an applicable water quality standard, the department must notify the permittee of such a violation. In making that determination, the department shall use the information submitted by permittees to ascertain if additional permittee sampling of their discharges is required to support a determination of a reasonable potential to cause a violation of an applicable water quality standard in the receiving water. Priority must be given to determinations for discharges to waterbodies considered impaired under section 303d or section 305b of the federal clean water act, 33 U.S.C. Sec. 1251 et seq. The department is authorized to issue an order requiring additional sampling of permittee's discharge in support of this determination. The type, quantity, and duration of sampling must consider: (i) Methods and tools available to the department for making a reasonable determination of potential to pollute; (ii) seasonality issues associated with the discharges and receiving waters; and (iii) data quality consistency with current department policy for identification of impaired waters. Data quantity must be consistent with department or United States environmental protection agency guidelines, whichever are more stringent, to provide statistically valid results for the reasonable potential determination.
     (b) During the data collection phase, if the department determines a need for an effluent discharge limitation, it must be set equivalent to the current discharge, provided:
     (i) The conditions of subsection (1)(b) of this section are satisfied; and
     (ii) The discharge does not pose an immediate threat to public health or the environment.
     (4) Once notified by the department that a determination of reasonable potential to cause or contribute to the violation of the applicable water quality standard, the permittee must take all necessary actions to ensure future discharges do not cause or contribute to the violation of a water quality standard and document those actions in the storm water pollution prevention plan. If violations remain or reoccur, then the department can issue an order with numeric limits based on the reasonable potential analysis, or coverage under this permit may be terminated by the department and an alternative general permit or individual permit may be issued.
     (a) If an order is issued, then storm water discharges identified in this subsection are required to achieve compliance with effluent discharge standards within the shortest time practicable and conform to the compliance schedule of chapter 173-201A WAC as it existed on the effective date of this section.
     (b) In determining the shortest time practicable, the department should, at a minimum, consider technical feasibility, fiscal capability, permitting requirements, and other pollution control activities.
     (5) Interim mixing zones shall be issued to all permittees who provide department requested mixing zone information on the notice of intent under the mixing zone provision of chapter 173-201A WAC except for pollutants identified as causing impairment in the receiving waterbody.
     (a) The interim mixing zones shall remain in effect until the department:
     (i) Issues an expanded mixing zone for storm water to the permittee;
     (ii) Resizes the permittee's interim mixing zone; or
     (iii) Revokes the permittee's interim mixing zone.
     (b) The department may request additional information to support an expanded mixing zone, revocation of a mixing zone, or resizing of an interim mixing zone, subject to the provisions of subsection (7) of this section when:
     (i) Review of initial mixing zone information provided indicates a concern;
     (ii) A site inspection identifies a concern; or
     (iii) A permittee requests a storm water expanded mixing zone.
     (c) Prior to an interim mixing zone being revoked or resized, the department shall take measures to provide the permittee with an opportunity to:
     (i) Correct the problems identified with the mixing zone;
     (ii) Conduct studies as necessary to support an alternative mixing zone; or
     (iii) Make physical and operational changes as necessary to meet applicable discharge standards under the permit for a facility without a mixing zone.
     (6) Any storm water technical assistance program within the department must be operated independently of inspection or enforcement programs. Technical assistance personnel shall only take enforcement action when there is an imminent threat to public health or the environment. Technical assistance will only be provided to permittees who request assistance.
     (7)(a) In consideration of the health and safety of the general permittee and their employees, in-stream sampling is not a requirement of an industrial or construction general permit, except:
     (i) Under an order to collect data to support a reasonable potential analysis; or
     (ii) Under an order to collect data to support a revision to the interim mixing zone.
     (b) The department is authorized to use fees collected in conjunction with storm water permits to support necessary storm water-related ambient monitoring, subject to budgetary approval by the legislature.
     (8) An industrial or construction storm water general permittee is only liable for that portion of storm water-borne pollution or storm water flow that originates from facilities owned or operated by the permittee.
     (9) Upon application by the permittee who requires a mixing zone, compliance schedule, or is subject to a total maximum daily load or other pollution control measure, the department shall issue an individual permit in lieu of coverage under a general permit within twelve months.