If it keeps on rainin’, levees goin’ to break,
If it keeps on rainin’, levees goin’ to break,
When the levee breaks I’ll have no place to stay.
Mean old levee taught me to weep and moan,
Lord, mean old levee taught me to weep and moan,
Got what it takes to make a mountain man leave his home,
Oh, well, oh, well, oh, well.
On Aug. 11, 2014, Southeastern Michigan experienced a rain event described by many as “historic.” The stormwater runoff from the rain inundated sewers and caused floods and sewer backups that affected numerous communities, including my own. Over a week since the storm, garbage still sits on the side of the streets throughout many of these neighborhoods.
We know what havoc a massive rain can wreak on residential neighborhoods, but what about industrial facilities? What laws and rules apply to industry and how are we protected as citizens from rain that falls on industrial facilities and the resulting stormwater? As you may have guessed, industrial facilities must have plans in place to handle their potentially contaminated stormwater, just as they must control their process wastewater.
The federal Clean Water Act requires that industries that fit certain specific Standard Industrial Classification (SIC) codes obtain a National Pollution Discharge Elimination System (NPDES) permit for stormwater runoff. These industries include manufacturing, mining, warehousing, landfills, electric plants, and those that store hazardous materials or hazardous wastes. Failure to have the required permit could result in civil penalties and even possible criminal penalties, so there is a strong incentive to comply.
The Michigan Department of Environmental Quality (MDEQ) has authority under the Clean Water Act to enforce stormwater permit requirements. According to the MDEQ, about 4,000 facilities have permits for stormwater discharge. If you are a facility that requires a stormwater permit, one can obtain a “general permit,” a permit that applies to your individual operation or a “no exposure certification.”
A covered facility must have a certified stormwater operator and a Storm Water Pollution Prevention Plan (SWPPP) in place. A SWPPP requires a variety of elements, including a detailed description of the site, location of discharge points, best management practices, inspection reports, identification of employee training and certifications, containment systems, the materials that could possibly be released and what items are exposed to the elements, among other items. Annually on Jan. 10, the operator must submit a Storm Water Annual Report to the MDEQ.
So, what happens if, despite the development and implementation of a SWPPP, a facility accidentally releases contaminants from stormwater? If the amount of the substance released exceeds the “reportable quantity” of that substance, the facility must report the release to the MDEQ within 24 hours. However, if the amount a particular substance is below the reportable quantity, it may still be a violation of the permit, which will be reported in the annual report.
There is no doubt that facilities that are required to control their stormwater under a NPDES permit had issues with the recent heavy rains. Their SWPPP plans are designed to prevent releases into the environment as a result. It should be interesting to read the annual reports of affected permitted facilities as they are submitted next January as to how those plans fared in light of up to six inches of rain.
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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