If you’ve worked with a facility that has received a citizen suit 60-Day Notice of Intent to Sue (“Notice”), you’ve probably seen the California Toxics Rule (CTR) mentioned in the following way:
“Applicable water quality standards (WQS) are set forth in the California Toxics Rule (“CTR”) and […] the “Basin Plan”. Exceedances of WQS are violations of the Industrial Stormwater Permit, the CTR, and the Basin Plan.”
– Brodsky & Smith v. Primal Elements, Inc.
The “CTR” is typically included as an alleged violation in a Notice when a facility’s sampling results exceed the numeric water quality standards set forth in the current parameters of the Rule. In a review of more than 600 NOIs by Mapistry’s Litigation Team filed from 2015 to 2018, approximately 65% contain violations of WQS as an “exceedance of receiving water limits.” Since permit compliance is the best defense to an almost constant threat of being sued by environmental groups, it is crucial to understand why exceedances of the CTR are listed as a permit violation.
You are not alone in wondering where the CTR fits in with the other water quality standards. But exactly how and when did CTR become a potential Industrial Stormwater Permit violation for exceeding receiving water limits?
Background and Purpose of CTR
The California Toxics Rule (40 CFR Part 131) was finally implemented in April 2000 as a response to the EPA’s much-needed setting of a numeric water quality criteria baseline for certain toxic pollutants to protect human health and the environment under the Clean Water Act. At the time, the Rule filled a much-needed gap in the California water quality standards after a California court overturned the state’s water quality control plans in 1994. Since the control of toxic pollutants in surface waters is necessary to achieve the CWA’s goals and objectives, the Rule is specifically articulated in California’s Statewide Water Quality Control Plan and the applicable Regional Water Board’s “Basin Plan”.
CTR’s Relation to California’s Industrial General Permit
California’s Industrial General Permit includes Numeric Action Limits (NALs), similar to benchmark limits used in many other state permits. Exceedances of these NALs are specifically stated to not be a violation of the General Permit.
“It is not a violation of this General Permit to exceed the NAL values; it is a violation of the permit, however, to fail to comply with the Level 1 status and Level 2 status ERA requirements in the event of NAL exceedances.”
-Factsheet for the Industrial General Permit
NALs are not effluent limitations but a numeric guideline used to trigger additional actions to be taken by the facility when exceeded. This strategic language prevents environmental groups from alleging a violation of the permit for exceeding a NAL in a citizen lawsuit. Therefore, environmental groups need to be a little creative to find a way for a facility’s stormwater sampling results to be in violation of the permit. That’s where the numeric effluent limitations stated in the CTR and basin plans come into play. Environmental groups can allege that a facility’s stormwater discharge at the point of discharge into the receiving water violates the state water quality standards listed in the CTR and basin plans, which are numeric effluent limitations and a violation of the permit. And the burden of proof falls on the facility to prove stormwater discharge doesn’t impact the receiving water. As a result, violations of the CTR appear in pre-litigation notices as violations of the General Permit and Basin Plan under “Receiving Water Limitation”.
The table below compares the NALs listed in the General Permit to the numeric criteria listed in the CTR. For each parameter, the numeric criteria listed in the CTR that fall below the respective NAL are highlighted in red, which is the case for the majority of numeric criteria. Notice that these parameters are all metals except for cyanide, so this primarily affects facilities that list metals as potential pollutants.
Comparison of the NALs to the CTR’s Numeric Criteria
The Case that Forced Stormwater Discharges to Comply with Water Quality Standards
Following the outcome of the seminal case Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999), or “pre-CTR”, any industrial stormwater discharges must now strictly comply with water quality standards, including those criteria listed in the applicable basin plan. According to a 2009 bulletin published by Cal/EPA, the push of environmental groups seeking to press more industrial facilities to implement stronger measures to reduce stormwater impacts such as numerical limits for metal pollutants, left many facilities scrambling to figure out how to comply with the CTR in permits following the ruling due to the sharp rise in cost. As a result, a slew of litigation defined the 2000’s as California adjusted to the increased compliance measures. A few of those key cases are discussed below.
The Case that Reinforced the Applicability of the CTR as a Permit Violation
A seminal case from the late 2000’s was Santa Monica Baykeeper v. Kramer Metals, 619 F. Supp. 2d 914. In that case, both plaintiff and facility disputed the applicability and impact of the CTR and attempted to rid the case on summary judgment. In partly affirming the summary judgment on behalf of plaintiff Baykeeper, the district court cited the EPA’s Summary of the Rule to highlight the broad legislative intent which applies the Federal criteria to California’s “inland surface waters [and] enclosed bays”. Also includes “[a]ll waters (including lakes, estuaries, and marine waters) … are subject to the criteria promulgated today”, emphasizing that the CTR expressly applied to all waters for “all purposes and programs,” thus stormwater discharges were not exempted from the limits imposed by the CTR.
Kramer Metals subsequently argued that the CTR did not apply because one, as an individual facility and discharger it was exempt from the Implementation Policy, and should only be regulated by the General Permit, and two, that the pollutant discharges were minimal. The Court ultimately affirmed that CTRs apply to “all waters”, holding that a permittee violates the General Permit Receiving Water Limitation C(2) whenever it “causes or contributes to an exceedance of” because CTRs are “applicable water quality standards” and are components of the General Permit.
This case really set the precedent for the CTR being applicable to industrial stormwater permit violations and has not been challenged to date. However, if anyone has several million dollars they’d like to throw at a lawsuit, I know several defense attorneys who would be more than happy to challenge this ruling in court for the chance to overturn it.
Am I Safe if my Notice Letter Doesn’t Cite the CTR?
The Notice doesn’t even necessarily have to cite the CTR as a permit violation. In the case Waterkeepers Northern Cal. v. AG Industrial Manufacturing, the defendant facility claimed that a violation of the California Toxics Rule was inapplicable because the Notice of Intent to Sue letter did not cite specifically to the Rule, rather listing various contaminants believed to be at the defendant’s site. The court disagreed, finding that it was sufficient for the letter to identify alleged violations of the General Permit by explaining how the contaminants were exposed to rainfall in order to show what the defendant was doing wrong.
The Introduction of Numeric Effluent Limitations to Stormwater Permits
In the future, environmental groups are only going to gain more leverage to allege permit violations as Numeric Effluent Limitations (NELs) are added to stormwater permits across the US. In California, NELs are being introduced to the General Permit with the recent addition of TMDL requirements. The exceedance of a NEL is considered a permit violation. Read our article to learn more about the new TMDL requirements in California.
Recently, a study by the National Academy of Sciences was conducted to identify permit improvements for the federal Multi-Sector General Permit (MSGP), which is used as a basis for many state stormwater permits. Although the summary report from the study specifically denounced the addition of NELs to the MSGP due to current “data gaps”, the report did recommend improved data collection to develop a solid scientific basis for determining NELs in the future.
“The decision to develop new numeric effluent limitations would need to be informed by thorough structural control measure performance data”
And you can bet environmental groups will be pushing hard for the inclusion of NELs in new permits across the nation since the NELs give environmental groups significantly more leverage to allege permit violations. As these effluent limitations for stormwater discharge become the norm across the US, the use of receiving water limits like the CTR may one day be phased out of citizen suits.