DEP seeks costly new industrial stormwater requirements

(Dec. 11, 2009) Substantial new regulatory requirements on businesses are being prepared by the state Department of Environmental Protection for rollout in 2010, despite Connecticut’s still-weakened economy.

Streamflow regulations
Despite a very limited understanding of the extent to which the flow of Connecticut rivers and streams is impacted by industrial water usage (which tends to be more consistent throughout the year compared with significant seasonal differences associated with increased residential demand during summer months), the DEP is proposing to vastly expand its existing “streamflow” regulations in an effort to ensure every river and stream in Connecticut has adequate water flow to support fish throughout the year.  The proposed regulations could be costly to businesses, municipalities and even the state.  The proposed regulations will be the subject of a public informational meeting on Dec. 21 and a public hearing on Jan. 21 both to be held at DEP’s offices in Hartford.

Stormwater discharges
The DEP also recently released a draft set of new requirements for stormwater discharges from industrial facilities that will substantially change and increase the cost to these facilities for managing their stormwater. Among other things, the DEP is seeking more monitoring, inspection and training requirements along with new discharge “benchmarks” for a variety of chemical parameters. Failure to meet the benchmarks will trigger additional measures and costs.

General permit vs. regulation
These new stormwater requirements would be implemented through a general permit rather than a regulation. Under the regulatory system, proposals have to withstand a broad review process, with well-established procedures for public and governmental review, and ultimately, approval by a legislative committee. Adoption of a general permit, however, takes place mostly within the DEP.

Currently, the industrial stormwater general permit is in the hands of the DEP’s Office of Adjudications. The office has given CBIA and a few others the opportunity to “intervene” in the general permit adoption process if it’s believed the latest version contains substantive changes to the original draft general permit issued last June. Intervention would trigger a formal hearing process that could take several months and significant resources from DEP as well as for those intervening. Decisions on whether to request intervention are due to the DEP Adjudications Office by Dec. 18.

CBIA has reviewed the latest draft general permit and identified several provisions that may constitute substantive changes warranting intervention. A brief summary of those areas appears below.

If any of these issue areas are of concern to your business, please contact CBIA’s Eric Brown (860-244-1926 or eric.brown@cbia.com) as soon as possible so that we can determine whether CBIA should file a motion for intervention. This would not obligate your company to participate in the DEP process but would help CBIA better represent your company’s interests.

Here is a link to the latest draft (showing DEP’s changes)

Issues that could form the basis of CBIA intervening in the General Permit proceeding if our members indicate one or more is of significant concern to them:

Page 10 of 68, last paragraph of Section 3(b)(9): adds restrictions for authorization under the general permit for new facilities located on an impaired water body (e.g. new or expanded businesses in Connecticut). Specifically, the section reads: “if an impairment exists for which an indicator or surrogate pollutant has not been designated but for which stormwater discharges are a potential cause, the industrial activity is not authorized by this general permit.”

Page 14 and 15 of 68, Sections 4(c)(2(H) and 4(d): changes the provisions regarding electronic submission or Internet posting of stormwater prevention plans. Instead of allowing the facility to submit or post their plan with omissions for “confidential business information” in a self-implementing fashion, the latest draft states that facilities seeking to omit information from their plans must first submit the plan to the commissioner for written approval reflecting her agreement that information proposed to be omitted constitutes a “trade secret” or other exemption allowed under the state Freedom of Information Act.

Page 19 of 68, Section 5(b)(9)(A):  adds language regarding secondary containment requirements for, among other things, “tanks or containers utilized for the storage of liquid chemicals or for the collection, storage or treatment of waste water.”

Page 31 of 68, Section 5(e)(1)(B)(ii):  Reduces the compliance “benchmark”  for zinc from 0.3 mg/l to 0.160 mg/l. (DEP contends there was a transcription error in the TD general permit).

Page 32 of 68, Section 5(e)(1)(B)(iii):  Makes quantitative changes to the process for averaging monitoring values over 4 semiannual sampling periods. The changes would impact averaging where some or all of the data is below benchmark limits and involves detection limits and reporting levels.

Page 33 of 68, Section 5(e)(1)(B): Changes the current self-implementing process concerning exceedances due solely to natural background or off-site pollution and would now require the commissioner’s approval of the permittee’s documentation.