Virginia’s Renewed General Industrial Stormwater Discharge Permit Includes a Mix of Tougher and More Flexible Standards

In the ever-increasing effort to control nutrient (phosphorous and nitrogen) loads into the Chesapeake Bay watershed, Virginia and other Bay states are looking for additional means to ratchet down nutrient-laden stormwater discharges.  Driven in large part by EPA’s Chesapeake Bay TMDL Rule (“Bay TMDL”) setting allowable nutrient and sediment load limitations for the Bay and its tributaries, this effort so far has been focused on traditional sources of nutrients and sedimentation in stormwater discharges, such as municipal separate storm sewer systems, real estate development projects, municipal and industrial wastewater treatment plants, confined animal feeding operations, and agricultural operations.

Because industrial stormwater discharges can also include appreciable nutrient and sediment loadings, Virginia has now trained its sights more closely on industrial stormwater dischargers to demonstrate nutrient reductions toward ultimate compliance with the Bay TMDL.  One result is the recently renewed and amended General Virginia Pollutant Discharge Elimination System (VPDES) Permit for Discharges of Storm Water Associated with Industrial Activity (“General Permit”), which took effect July 1, 2019.  The General Permit includes, among a variety of revisions, new provisions for reducing nutrient runoff from industrial sources of stormwater beyond those that would ordinarily apply to facilities in the specific industrial sector classification.  The following revisions are particularly noteworthy:

1. Facilities with Chesapeake Bay TMDL action plans approved during the 2014-2019 term of the General Permit must continue with such plans during the new General Permit term (2019-2024).  These facilities must file annual reports with the Virginia Department of Environmental Quality (“DEQ”) by June 30 of each year of the new General Permit term discussing progress toward meeting required nutrient reductions.  However, as described below, this annual reporting requirement may be waived by DEQ pursuant to a provision of the General Permit.
2. During the 2014-2019 General Permit term, any facility that took four rounds of samples for analysis of total suspended solids (“TSS”), total nitrogen (“TN”), and total phosphorous (“TP”) “to characterize the contributions from their facility's specific industrial sector for these parameters” must follow new formulas set out in the new General Permit to determine stormwater loadings for these constituents.  However, a facility may use any applicable sampling data collected during the entire 2014-2019 General Permit term to meet some or all of the requirement for the four sampling rounds and to make these calculations.  The facility/permittee must then submit to DEQ these calculations and any Chesapeake Bay TMDL action plan as required under the General Permit within 60 days of General Permit coverage for the facility.
3. Any facility that did not take four samples for analysis of TSS, TN, and TP during the 2014-2019 General Permit term must complete four rounds of monitoring for these constituents beginning during the first full monitoring period of General Permit coverage, “to characterize the contributions from their facility's specific industrial sector for these parameters.”  Calculations of stormwater loads of these constituents must be made, and the results and any required Chesapeake Bay TMDL action plan must be filed with DEQ within 90 days after the fourth monitoring period.
4. If there are changes to the facility’s acreage used for industrial purposes for which the General Permit is issued, or if there are changes in the facility’s “impervious surface area” (as newly defined), the facility must recalculate its nutrient loading rates and, as needed, modify its existing Chesapeake Bay TMDL action plan or prepare one for the first time.  Such recalculations and Chesapeake Bay TMDL action plan must be submitted to DEQ within 90 days of completion of any facility changes leading to these results.
5. Likewise, if for other reasons prior monitoring is no longer representative of the modified facility, the facility must perform new monitoring, new calculations and, as needed, prepare and file an amended or new Chesapeake Bay TMDL action plan within 90 days after the fourth monitoring period.
6. All facility loading calculations and any Chesapeake Bay TMDL action plan shall be maintained as part of the Stormwater Pollution Prevention Plan (“SWPPP”).
7. DEQ may grant a waiver for preparation and filing of Chesapeake Bay TMDL action plan annual reports when the permittee demonstrates that all needed nutrient loading reductions to meet applicable load limits have been achieved through implementation of certain allowable mechanisms.  Any waiver granted must be kept with the SWPPP.  Facilities may pursue several options to reduce nutrient loading to allowable levels to obtain a waiver, including.
   1. Using one or more of the best management practices (“BMPs”) from the Virginia Stormwater BMP Clearinghouse listed in 9VAC25-870-65, found on the Virginia Stormwater Clearinghouse website, or approved by the Chesapeake Bay Program.  Such BMPs must be maintained permanently and be incorporated into the SWPPP;
   2. Using site-specific BMPs followed by four rounds of confirmation sampling to demonstrate the BMPs’ effectiveness in reducing the nutrient loadings to within allowable levels. Such BMPs must be maintained permanently and must be incorporated into the SWPPP; or
   3. Acquisition of perpetual nonpoint source nutrient credits.

The great majority of regulated industrial stormwater dischargers rely on the General Permit rather than an individual permit.  Therefore, the General Permit’s increased requirements for industrial stormwater sources in the Bay watershed will result in additional monitoring and reporting burdens and may require additional nutrient and sediment control measures.  Virginia expects these new requirements will improve Bay water quality and help it demonstrate reduced nutrient and sediment loads to meet its obligations under the Bay TMDL.  That would be a good result for a host of reasons, but permittees should also expect compliance risks and costs to increase along the way.  Permittees should have a strategy in place to comply with these new requirements, some of which must be met soon.

35 Va. Reg. Reg. 2158 (May 13, 2019).