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Thursday, Dec 7, 2023

REGULATION–Environmental Policies and the Effect on Small Businesses

EPA Steps Up Watch on Preventing Water Pollution

The winds of change are blowing into San Diego.

Although scientific support is lacking for precise measurements, the U.S. Environmental Protection Agency estimates roughly 80 percent of the pollution in San Diego Bay is due to urban runoff.

With the government’s difficulty in attaining clean water goals, the incoming storm was inevitable.

Most industries already have been subject to permit requirements for some storm water control measures. Now residents and small businesses are the targets.

Historically, the EPA sought to control pollution of our waters by “point source” controls, in which the discharge from pipes is regulated by permit. Industrial operations bore the brunt of the country’s efforts to attain cleaner waters. Over time, the returns shifted from dramatic to marginal.

Because the EPA initially ignored storm water issues, environmental organizations sued. In the mid-1980s, a court ordered the EPA to implement a dormant section of the federal Clean Water Act. Now, where point source controls have failed, the EPA must take a “water-quality” approach and protect “impaired” waters from an overload of pollutants from uncontrolled areas, or “nonpoint sources,” in the watershed. Nonpoint storm water runoff funnels into rivers, bays and oceans through the storm drains.

Contrary to the belief of some, storm water is not directed to a sewage treatment plant. There is, however, an attempt under way in San Diego to reroute some runoff during the dry season to the sewer due to high bacterial levels. During rains, there is no way to handle the sheer volume of runoff, so it all goes to the receiving waters.

To try to gain control of such runoff, the EPA, through the state, began regulating storm water outlets as if they were point sources. Most industrial operations and grading at construction sites more than 5 acres are already subject to storm water permit requirements.

To comply with state and federal laws, many municipalities enacted ordinances in the early 1990s banning the discharge of anything but rainwater into storm drains. That meant little to smaller businesses until now.

The EPA is now requiring states to enact “total maximum daily load,” limitations on pollutants entering impaired water bodies. Water discharge permits will be limited by the total maximum daily loads as they are enacted.

There are more than 500 impaired water bodies in California, and formulation of several total maximum daily loads for San Diego alone is expected to take 10 to 15 years.

The Regional Water Quality Control Board designs and implements the total loads. The water quality control board must rank the most impaired waters and show how problem pollutants impair those waters. The complexity of the natural system, lack of funding to interpret existing, discordant sampling data, and the rushed time to design total maximum daily loads, all create a daunting challenge to developing them.

The water quality control board makes an educated guess as to how much pollution an impaired water body can assimilate. The total maximum daily load level equals the total waste from all point and nonpoint sources, plus a margin of safety.

– Water Board Sets

Priority Agenda

Chollas Creek, which leads into San Diego Bay, and Rainbow Creek in North County, will be the initial focus of the water quality control board for total maximum daily loads. Diazinon, a commonly used pesticide adversely affecting Chollas Creek and San Diego Bay, is supposed to receive the first maximum daily load by April 2000.

Additional total maximum daily loads will be added over time as the water quality control board evaluates copper, lead, cadmium and zinc overloads in Chollas Creek and nutrient overload in Rainbow Creek.

Total maximum daily loads will automatically limit all existing water discharge permits, including that of San Diego County, the San Diego Unified Port District and each municipality in the county , as joint permittees , for their collective storm drain permit. More than 200 storm drain outlets enter San Diego Bay alone.

In order for the municipal co-permittees of the storm drain permit to comply with its permit , and avoid citizen suits or governmental fines , it must enforce total maximum daily loads on everyone in its jurisdiction.

Pesticides, herbicides and fertilizers wash into storm drains through improper application, excessive irrigation and rain. Petrochemicals from car exhaust settle to the ground and are carried to the storm drain. Mix in copper from brakes, improperly disposed oil changes, oil and grease, and lead from old paint and it becomes a toxic stew.

– Implementing Best

Management Practices

Municipalities and citizens in their jurisdiction must implement “best management practices” to prevent all but rain water from washing off properties into storm drains. Each business must implement its own best management practices, which take into account cost and water quality benefit, and involve a site- and business-specific inquiry.

Citizens’ suits have been on the rise challenging what constitutes the “best” storm water management. A prevailing party may recover attorneys’ fees.

If your business is given the required 60-day notice of a group’s intent to sue, which must list alleged violations, quickly assess how to implement or improve your practices and cure any deficiency. A suit cannot proceed unless a violation is ongoing.

San Diego businesses and individuals are generally unaware that since 1993 they have been subject to best management practices requirements by municipal ordinance.

Municipalities will now target businesses and individuals more aggressively to use best management practices so that they comply with maximum daily loads or risk consequences.

We will see greater use of existing laws and increased fines, much like a traffic fine, to get the attention of dischargers, which neighbors and others may notice. Recalcitrant businesses that ignore notices of violation may be shut down.

– ‘Think Blue’ Program

Has Marketing Benefits

Plan ways to help the environment and reduce your legal exposure. Look for nontoxic alternatives or methods to reduce the toxins we use and release into the environment. Consider the marketing benefits derived from participating in the “Think Blue” program created by the county, city and Port of San Diego, and other partners. Taking measures to stop pollution of the storm water will help our environment, protect our children who contact or drink storm water in our bays and ocean and add meaning to a new millennium.

Reaves’ law offices are in Downtown San Diego.


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