The City of Norfolk appreciates the opportunity to comment on DEQ’s draft regulations associated with the reissuance of the Virginia Pollution Discharge Elimination System (VPDES) General Permit for Storm Water Discharges Associated with Industrial Activity [9 VAC 25-151].  As a municipality that holds both a Phase I MS4 Permit and separate VDPES Industrial Permits, we would like to offer the following recommendations associated with the draft regulations and future permit requirements:

1. 9 VAC 25-151-50, Newly Constructed Facilities:  The draft industrial regulations require any newly constructed facilities (constructed after November 29, 2010) meet the runoff reduction methods or purchase credits prior to obtaining coverage under the VPDES Industrial Permit.  This provision should be removed from these draft regulations in its entirety.  Per state law (§62.1-44) and regulations (4VAC50-60), sites are not required to construct to the new storm water standards until July 1, 2014, with some sites grandfathered for additional permit cycles.  Facility construction is covered under the Virginia Storm Water Management Program (VSMP) Permit or General Construction Permit and should not be mentioned in an Industrial permit.  Additionally, the drafted industrial regulations are not consistent with the construction regulations outlined in 4VAC50-60 for both redevelopment and the timeframe specified above.
2. 9 VAC 25-151-60, Registration Statement and Storm Water Pollution Prevention Plans (SWPPP):  This section of the permit requires the facility to identify whether or not it discharges to an MS4, and if so identify the MS4.  This provision requires the permit holder to notify the MS4 of the discharge within 30-days of coverage under the terms of this permit.  It may be beneficial for DEQ to provide a table or a link to a map that identifies the MS4 localities and program administrator contact information.
3. 9 VAC 25-151-70, Special Conditions:  The regulations require the permit holder to provide monitoring data semi-annually for total nitrogen, total phosphorus, and total suspended solids for the first two years of the permit to assist with establishing a baseline.  The City recommends that the permit language be modified to require monitoring be performed annually for the entire 5-year permit cycle.  The provision for obtaining an exemption of the monitoring requirements if two consecutive monitoring data sets show the analysis below detectible limits should be continued.  Additionally, the City recommends baseline monitoring for any impairment (bacteria, PCB, metals, etc.) within the watershed for which the discharge occurs to assist with TMDL source tracking.

Thanks for your consideration of these comments.

Thank you for the opportunity to comment on the draft VPDES Permit for Discharges of Storm Water Associated with Industrial Activity.

Arlington County's comments come from our perspective as a regulated MS4 with a Chesapeake Bay TMDL wasteload allocation (WLA).  Arlington's Phase I permit, as well as the new Small MS4 permits, contain a loading table to determine the specific Bay TMDL load reductions required during this permit cycle.  The input into this loading table is the permittee's MS4 service area.   A key element of the MS4 service area computation is excluding lands covered under separate VPDES stormwater permits. 

This is a fundamental aspect of how the Clean Water Act (CWA) regulates point sources governed by a TMDL:  each point source is responsible for its own discharges and is assigned a WLA for which it is responsible.    VPDES-permitted industrial stormwater facilities are not an exception, yet the draft permit does not include a Bay TMDL WLA.  This is inconsistent with the CWA, especially when considering that the Act applies a less stringent regulatory standard to MS4s than to industrial stormwater dischargers.   In short, if MS4s have a Bay TMDL WLA, than industrial stormwater discharges must also be assigned a Bay TMDL WLA.

EPA's Bay TMDL reinforces this basic legal and regulatory principle by highlighting in numerous places the category of industrial stormwater discharges as distinct from MS4 discharges. The document also specifically states that the TMDL includes a separate category of loads for industrial stormwater facilities:

The contribution from industrial stormwater discharges subject to NPDES permits has been estimated on the basis of data submitted by jurisdictions in their Phase I WIPs, including the number of industrial stormwater permits per county and the number of urban acres regulated by industrial stormwater permits. For the Bay TMDL, the permitted industrial stormwater load is subtracted from the MS4 load when applicable. 

"When applicable" clearly applies in Virginia, with MS4s being assigned separate WLAs and having no regulatory authority over permitted industrial stormwater discharges.  Part 1.A.1.b of Arlington's MS4 permit states that VPDES permitted industrial stormwater discharges are automatically authorized to our MS4.  This highlights two critical points: 1) that MS4s have no regulatory authority over these discharges, and 2) that DEQ must exercise its clear authority over permitted industrial stormwater dischargers to ensure compliance with the Bay TMDL and other TMDLs.

The draft permit's definitions section is also very clear that all point source dischargers are assigned a WLA:

"Total maximum daily load" or "TMDL" means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for point source discharges, load allocations (LAs) for nonpoint sources and/or natural background, and must include a margin of safety (MOS) and account for seasonal variations.

If industrial stormwater facilities are not assigned a WLA, this load will go unaccounted for and will slow down the progress towards Bay restoration that we are all working hard to achieve.

Finally, the draft permit regulation (9VAC25-151-60.C.5) requires that the permittee identify whether the facilities discharges or will discharge to an MS4.  The MS4 must be involved in reviewing the permit if their location is within the corporate boundary.  For example, several currently permitted industrial stormwater dischargers in Arlington County discharge into VDOT’s MS4 and then into Arlington County's MS4.  Without the MS4s being included in the permit review process, it is unlikely that both would be identified on the permit.

The City of Chesapeake appreciates the opportunity to comment on DEQ’s draft regulations associated with the reissuance of the Virginia Pollution Discharge Elimination System (VPDES) General Permit for Storm Water Discharges Associated with Industrial Activity [9 VAC 25-151].  As a municipality that holds a Phase I MS4 Permit, we would like to offer the following recommendations associated with the draft regulations and future permit requirements:

1. 9 VAC 25-151-50, Newly Constructed Facilities:  The draft industrial regulations require any newly constructed facilities (constructed after November 29, 2010) meet the runoff reduction methods or purchase credits prior to obtaining coverage under the VPDES Industrial Permit.  This provision should be removed from these draft regulations in its entirety.  Per state law (§62.1-44) and regulations (4VAC50-60), sites are not required to construct to the new storm water standards until July 1, 2014, with some sites grandfathered for additional permit cycles.  Facility construction is covered under the Virginia Storm Water Management Program (VSMP) Permit or Construction General Permit and should not be referenced in an Industrial permit.  Additionally, the draft industrial permit regulations are not consistent with the construction regulations outlined in 4VAC50-60 for either redevelopment or the timeframe specified above.
2. 9 VAC 25-151-60, Registration Statement and Storm Water Pollution Prevention Plans (SWPPP):  This section of the permit requires the facility to identify whether or not it discharges to an MS4, and if so identify the MS4.  This provision requires the permit holder to notify the MS4 of the discharge within 30-days of coverage under the terms of this permit.  It would be beneficial for DEQ to provide a table or a link to a map that identifies the MS4 localities and program administrator contact information.
3. 9 VAC 25-151-70, Special Conditions:  The regulations require the permit holder to provide monitoring data semi-annually for total nitrogen, total phosphorus, and total suspended solids for the first two years of the permit to assist with establishing a baseline.  The City recommends that the permit language be modified to require monitoring be performed annually for the entire 5-year permit cycle.  The provision for obtaining an exemption of the monitoring requirements if two consecutive monitoring data sets show the analysis below detectible limits should be continued.  Additionally, the City strongly recommends that a requirement be added for baseline monitoring for any impairment (bacteria, PCB, metals, etc.) within the watershed to which the discharge occurs in order to assist with source tracking for TMDL compliance.

Again, thank you for the opportunity to provide input.

We appreciate the opportunity to provide comments on the proposed reissuance of the General Permit for Stormwater Discharges Associated with Industrial Activity (9VAC25-151).  Our comments are as follows:

9VAC25-151-60: Registration Statement and Stormwater Pollution Prevention Plan (SWPPP).

C.5: Not all permit applicants will know if they will discharge to an MS4, or to which MS4.  Prospective applicants should be given some assistance by DEQ in determining if they will discharge to an MS4 along with a list of appropriate local government contacts.

9VAC25-151-70: General Permit.

Part I.A.1.c.4: Facilities discharging to an impaired water without an approved TMDL wasteload allocation:

It is unreasonable to require monitoring without knowing what pollutant must be monitored.  We recommend changing the heading and text in this section to read: “Facilities discharging to an impaired water without an approved TMDL wasteload allocation for which there is an identified pollutant responsible for the impairment.”

Part I.B.7: Discharges through a Virginia Stormwater Management Program (VSMP) regulated MS4 to waters subject to the Chesapeake Bay TMDL:

This section inappropriately attempts to shift responsibility for requiring compliance with the Chesapeake Bay TMDL from the state to MS4s.  Industrial stormwater permits, like MS4 permits, are a form of regulated stormwater, and as such, they should have to achieve the same reductions that are being required of MS4s.  These reductions are clearly defined in Virginia’s Phase II WIP: "an average reduction of 9 percent of nitrogen loads, 16 percent of phosphorus loads, and 20 percent of sediment loads from impervious regulated acres and 6 percent of nitrogen loads, 7.25 percent of phosphorus loads and 8.75 percent sediment loads beyond 2009 progress loads for pervious regulated acreage," and are to be achieved over three permit cycles.

Part I.B.8. Expansion of facilities that discharge to waters subject to the Chesapeake Bay TMDL:

The use of “expansion” is not defined.  It is unclear whether it applies to expansion of operations or construction activities at a permitted facility.  If expansion is intended to signify expansion of operations, this should be defined in the regulation. If it is intended to signify construction activities, compliance with the VSMP Permit Regulations (4VAC50-60) should constitute compliance with a “no net increase” requirement.

9VAC25-151-80. Storm Water Pollution Prevention Plans.

Part III.B.4.a: A permitted facility should not be held responsible for pollutants running onto their site from an adjacent site.  There is, however, value in a facility being aware of runon to their site and of how their industrial materials or activities may be exposed to it.  Pollutants identified in runon to a site should be reported to DEQ.

Thank you for considering these comments as you finalize reissuance of the VPDES Industrial Stormwater General Permit.