Ryan Janoch, P.E., is the founder of Mapistry, which provides online storm water compliance software to industrial facilities. Janoch can be reached at [email protected] or 510.984.3332.
One of the most worrisome parts of a facility’s industrial storm water program is the potentially expensive notice of intent to sue or 60-day notice. This letter is the opening salvo in a potential lawsuit over a facility’s industrial storm water permit. While there is often concern regarding a state regulator or city inspector appearing unannounced at a facility’s doorstep, there rarely is a significant financial penalty and most times the encounter leads to a written notice or, at worse, a Notice of Violation (NOV).
A citizen lawsuit is allowed under the Clean Water Act (CWA) to fill the gap between the storm water regulation and the resources of the regulatory agency tasked with enforcing it. In 46 of 50 states—Massachusetts, New Hampshire, New Mexico, and Idaho being the exception—the U.S. Environmental Protection Agency (EPA) has delegated the industrial storm water permit authority to a state storm water program. Basically, a person or environmental group who is negatively impacted by the facility’s storm water discharge to the receiving water body can sue the facility to enforce the CWA or state storm water program. This citizen lawsuit will make a claim for damages and legal fees due to the industrial storm water discharges. However, before the citizen or environmental group, which is the more common plaintiff, can take the facility to court they need to give the facility the opportunity to fix their alleged deficiencies.
Many times these citizen lawsuits will allege a number of permit violations, including exceedances of benchmark or action levels, deficient site maps and Stormwater Pollution Prevention Plans (SWPPPs), or missed annual reports. Upon receiving a notice of intent to sue, it is critical for industrial facilities to quickly engage legal counsel and fix any outstanding deficiencies. For example, site maps missing potential pollutant sources or flow direction indicators should be updated. Likewise, SWPPPs containing the wrong parameters to sample for should be fixed and submitted to the proper state agency, if necessary.
The most common allegation, and unfortunately nearly impossible to fix after the fact, is the exceedance of benchmarks or action levels. The self-reported monitoring data from on-site sampling is used as evidence by the environmental group to claim repeated violations of the permit. In addition, the notice of intent to sue letter will often have a list of storm events attached to it with the environmental group claiming the facility exceeded the benchmark(s) a many more days than the sampling events (see example below). The environmental group likely will claim that each storm event that occurred over the past five years should incur a $37,500 per day penalty as allowed under the CWA.
Example list of storm events with alleged violations
Most citizen lawsuits end in a settlement rather than proceeding to court and usually these settlements occur during that initial 60-day period prior to a lawsuit being filed. The cost to litigate a storm water citizen lawsuit in court can be prohibitively expensive for all but a few large companies. In addition, there is not a great track record of these cases turning out well for the facility. Settlements typically will consist of reimbursement of the environmental group’s legal fees and costs, a payment to a local environmental foundation for an environmental mitigation project, and specific best management practices (BMPs) that will be implemented. The legal fees paid can range from $10,000 to $1 million or more with similar amounts paid for an environmental mitigation project. BMPs implemented due to a citizen lawsuit can range from $25,000 to $20 million and usually are treatment systems for the major pollutant(s) of concern, such as zinc or copper. The costs for companies for their internal and external legal counsels and storm water consultants typically are one to two times the penalties and legal fees paid to the environmental group. The final piece of the settlement is that environmental groups require companies to adhere to additional requirements above and beyond the permit requirements, such as more frequent sampling or additional parameters to be analyzed. This is due to environmental groups believing that storm water permits do not go far enough in protecting water quality and litigation or a settlement is the best way to further their cause.
Often facilities get sued, because year after year they collected storm water samples, sent them to the laboratory for analysis, then submitted to the state agency. However, no one at the facility ever checked the sampling results and asked why the results were above benchmarks and what to do about it. This lack of oversight and sampling results review usually coincides with a lack of deficiency and corrective action tracking. Deficiencies are not documented or if they are, no one follows up on the repairs or maintenance needed. Instead of closing the loop and preventing exceedances, the facility falls further into the pool of potential lawsuit targets.
So how do you avoid or mitigate the costs associated with a citizen lawsuit? Having a dynamic, comprehensive industrial storm water program that stays on top of permit deadlines and requirements typically can avoid litigation. That means training staff regularly, maintaining records in a centralized location, and implementing automatic reminders for deadlines. In addition, keeping a rain log, which is not usually required by a permit, can be extremely effective at pushing back against that list of rain events with alleged discharges that are violations. In most cases, site specific characteristics (e.g. gravel yard) and intensity of a rain event can greatly impact the frequency of discharge during a rain. For example, automatic rain log software creates an entry with the storm start and end date and time with a precipitation amount. The storm water team can update that with notes about the intensity of the discharge and the site-specific characteristics, such as, “Low intensity rainfall, no discharge due to gravel yard.” In addition, a picture can be logged to show the lack of a discharge during a rain event. Overall, companies should be cognizant that the move to public transparency and electronic sample data reporting will make it easier and faster for environmental groups to pursue citizen lawsuits.
In summary, the steps a facility should take to minimize the risk of a citizen lawsuit: