General Water Permit - Ed Puchi

A WARNING TO THE CONSTRUCTION INDUSTRY:

ACL’s ARE ON THE RISE AND

YOUR COMPANY MAY BE EXPOSED.

National Pollutant Discharge Elimination National Pollutant Discharge Elimination System (NPDES) System (NPDES)

General Permit For Storm Water Discharges General Permit For Storm Water Discharges Associated with Construction and Land Associated with Construction and Land

Disturbance ActivitiesDisturbance Activities

– The order was adopted on September 2, 2009The order was adopted on September 2, 2009– The order became effective July 1, 2010The order became effective July 1, 2010– The Order expires on September 2, 2014 The Order expires on September 2, 2014

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Summary of Significant Changes in Summary of Significant Changes in This General PermitThis General Permit

Rainfall Erosivity Waiver: Rainfall Erosivity Waiver: this this option allows a small construction option allows a small construction sites (>1 and <5 acres) to self-certify sites (>1 and <5 acres) to self-certify if the rainfall erosivity value (R value) if the rainfall erosivity value (R value) for their site’s location and time for their site’s location and time frame compute to be less than or frame compute to be less than or equal to 5. equal to 5.

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Summary of Significant Summary of Significant Changes in This General PermitChanges in This General Permit Technology- Based Numeric Action Technology- Based Numeric Action

Levels(applies to Risk Level 2 and 3)Levels(applies to Risk Level 2 and 3)This General Permit includes NALs This General Permit includes NALs

(numeric action level) for pH and turbidity.(numeric action level) for pH and turbidity.– Turbidity NAL = 250 NTUTurbidity NAL = 250 NTU– ph NAL = 6.5-8.5ph NAL = 6.5-8.5

NAL Exceedance Report must be submitted via NAL Exceedance Report must be submitted via SMARTS no later than 5 days after rain event for SMARTS no later than 5 days after rain event for Risk 3 and 10 days for Risk 2 if requested by Risk 3 and 10 days for Risk 2 if requested by Regional Board.Regional Board.

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NALsNALs Numeric Action Levels are essentially numeric benchmark Numeric Action Levels are essentially numeric benchmark

values for certain parameters that is exceeded in effluent values for certain parameters that is exceeded in effluent sampling trigger the discharger to take action.sampling trigger the discharger to take action.

Primary purpose of NALs is to assist dischargers in Primary purpose of NALs is to assist dischargers in evaluating the effectiveness of their on-site measures.evaluating the effectiveness of their on-site measures.

Another purpose of NALs is to provide information Another purpose of NALs is to provide information regarding construction activities and water quality impacts. regarding construction activities and water quality impacts. This data will provide the State and Regional Water Boards This data will provide the State and Regional Water Boards with info about levels and types of pollutants present in with info about levels and types of pollutants present in runoff and how effective the discharger’s BMP’s are at runoff and how effective the discharger’s BMP’s are at reducing pollutants in effluent.reducing pollutants in effluent.

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Technology-Based Numeric Effluent Limitations: Technology-Based Numeric Effluent Limitations: Risk Level 3 Only. Risk Level 3 Only. this General Permit contains daily this General Permit contains daily average NELs (Numeric Effluent Limitation) for pH average NELs (Numeric Effluent Limitation) for pH during any construction phase where there is a high during any construction phase where there is a high risk of ph discharge and daily average NELs turbidity risk of ph discharge and daily average NELs turbidity for all discharges in for all discharges in Risk Level 3Risk Level 3. .

ph NEL = 6.0-9.0ph NEL = 6.0-9.0 Turbidity NEL = 500 NTUTurbidity NEL = 500 NTU For an NEL Exceedance For an NEL Exceedance

– NEL violation report must be submitted within 24 hours via NEL violation report must be submitted within 24 hours via SMARTS no later than 5 days after rain event, and includes SMARTS no later than 5 days after rain event, and includes sampling results, description of onsite BMPs and corrective sampling results, description of onsite BMPs and corrective actions taken.actions taken.

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Risk-Based Permitting Approach: Risk-Based Permitting Approach: This General This General Permit establishes three levels of risk possible for Permit establishes three levels of risk possible for a construction site. a construction site.

Risk is calculated in two parts:Risk is calculated in two parts:– 1) Project sediment Risk (the relative amount 1) Project sediment Risk (the relative amount

of sediment that can be discharged given of sediment that can be discharged given project and location details)project and location details)

– 2) Receiving Water Risk (the risk sediment 2) Receiving Water Risk (the risk sediment discharges pose to the receiving water)discharges pose to the receiving water)

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Minimum Requirements Specified: Minimum Requirements Specified: General Permit imposes more General Permit imposes more minimum BMPs (Best Management minimum BMPs (Best Management Practices) and requirements that Practices) and requirements that were previously only required as were previously only required as elements of SWPPP or were elements of SWPPP or were suggested by guidance.suggested by guidance.

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Project Site Soil Characteristics Project Site Soil Characteristics Monitoring and Reporting: Monitoring and Reporting:

This provides the option for dischargers This provides the option for dischargers to monitor and report the soil to monitor and report the soil characteristics at their project location.characteristics at their project location.

The primary purpose of this The primary purpose of this requirement is to provide better risk requirement is to provide better risk determination and eventually better determination and eventually better program evaluation.program evaluation.

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Effluent Monitoring and Reporting: Effluent Monitoring and Reporting: This General Permit This General Permit requires effluent monitoring and reporting for pH and requires effluent monitoring and reporting for pH and turbidity in storm water discharges. The purpose of this turbidity in storm water discharges. The purpose of this monitoring is to determine compliance with the NELs and monitoring is to determine compliance with the NELs and evaluate whether NALs included in this General Permit evaluate whether NALs included in this General Permit are exceeded.are exceeded.

Required for ph and Turbidity in storm water dischargesRequired for ph and Turbidity in storm water discharges Applies to Risk Level 2 and 3 SitesApplies to Risk Level 2 and 3 Sites A minimum 3 samples per day must be collected from A minimum 3 samples per day must be collected from

discharges subsequent to a qualifying rain event (events discharges subsequent to a qualifying rain event (events that produces ½” inches of rain or more within 48 that produces ½” inches of rain or more within 48 hours).hours).

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Receiving Water Monitoring and Receiving Water Monitoring and Reporting:Reporting:

This General Permit requires some Risk This General Permit requires some Risk Level 3 (over 30 acres) dischargers to: Level 3 (over 30 acres) dischargers to: – monitor receiving waters (NEL exceedance and monitor receiving waters (NEL exceedance and

direct discharge to receiving waters)direct discharge to receiving waters)– and conduct bioassessments (analyze aquatic and conduct bioassessments (analyze aquatic

life present in sample).life present in sample).

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Post Construction Storm Water Post Construction Storm Water Performance Standards: Performance Standards: This General This General Permit specifies runoff reduction Permit specifies runoff reduction requirements for all sites not covered requirements for all sites not covered by a Phase I or Phase II MS4 NPDES by a Phase I or Phase II MS4 NPDES permit, to avoid, minimize and/or permit, to avoid, minimize and/or mitigate post-construction storm mitigate post-construction storm water runoff impacts.water runoff impacts.

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Rain Event Action Plan: Rain Event Action Plan: This General This General Permit requires certain sites to Permit requires certain sites to develop and implement a Rain Event develop and implement a Rain Event Action Plan (REAP) that must be Action Plan (REAP) that must be designed to protect all exposed designed to protect all exposed portions of the site within 48 hours portions of the site within 48 hours prior to any likely (> 50%) prior to any likely (> 50%) precipitation event.precipitation event.

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Annual Reporting: Due Sept 1 of Each Year. Annual Reporting: Due Sept 1 of Each Year. General Permit requires all projects that are General Permit requires all projects that are

enrolled for more than one continuous three-enrolled for more than one continuous three-month period to submit informationmonth period to submit information

Required to annually certify that site is in Required to annually certify that site is in compliance with these requirements. compliance with these requirements.

The primary purpose of this requirement is to The primary purpose of this requirement is to provide information needed for overall provide information needed for overall program evaluation and public information.program evaluation and public information.

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Certification/Training Requirements for Certification/Training Requirements for Key Project Personnel: Key Project Personnel:

General Permit requires that key General Permit requires that key personnel(e.g., SWPPP preparers, personnel(e.g., SWPPP preparers, inspectors, etc.) have specific training or inspectors, etc.) have specific training or certifications to ensure their specifications certifications to ensure their specifications that will comply with General Permit that will comply with General Permit Requirements. Requirements. – QSPQSP– QSDQSD

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Linear Underground/Overhead Linear Underground/Overhead Projects: Projects: General Permit includes General Permit includes requirements for all Linear requirements for all Linear Underground/Overhead Projects Underground/Overhead Projects (LUPs). (LUPs). – Based on the location and complexity of Based on the location and complexity of

the project areas, LUPs are separated the project areas, LUPs are separated into project types. (Type 1, Type 2 and into project types. (Type 1, Type 2 and Type 3)Type 3)

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The California Department of The California Department of Transportation Transportation

Confusion Hill Bypass Project Confusion Hill Bypass Project

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● Project of the Year Award from California Transportation Association.

● A model project that is critical to the North Coast Region’s infrastructure and economy.

Importance of the Project:

Features Which Avoided Permitted Impacts:

Most permitted in-stream disturbance was avoided. The Certification authorized 50 temporary piles in the live stream, over 4,200 cubic yards of concrete, and no pile driving. As implemented, only six piles were of installed and approximately 12 cubic yards of concrete.


● A lower-level deck was not required, but was installed for additional protection.

● Access roads to the South Bridge were paved for additional protection, although not required.

● Refueling equipment was transported to the peninsula to avoid an equipment crossing.

● Fewer river crossings took place compared to what was permitted.

←←


Major North Bridge access roads were avoided. The Certification allowed low-crossing access roads to be installed 10 feet above the water and ramps built from on-site gravel 10 feet high and 25 feet wide, requiring over 1,100 cubic yards of material. This change allowed 25 trees and riparian habitat to be preserved.


Several change orders were added for SWPPP protection, costing an additional $1.05 million (this does not include contractor-shared costs or supervision, i.e., biological monitors, SWPPP managers, etc.).

TimelineTimeline

MCM bid the project in MCM bid the project in April 2006.April 2006.

MCM is awarded project in MCM is awarded project in May 2006.May 2006.

MCM begins construction MCM begins construction in June 2006.in June 2006.

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CONSTRUCTION 2006 - 2009CONSTRUCTION 2006 - 2009

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TIMELINETIMELINE

MCM completed the Confusion Hill MCM completed the Confusion Hill project and had the Opening project and had the Opening Ceremony on June 26, 2009.Ceremony on June 26, 2009.

MCM received the ACL on August 17, MCM received the ACL on August 17, 2009 for 295 violations that took 2009 for 295 violations that took place the first few months of the place the first few months of the project (2006) for $1.5 million project (2006) for $1.5 million dollars. (Max penalty $2.9 million)dollars. (Max penalty $2.9 million)

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TIMELINETIMELINE

Water Board Hearing was set to be Water Board Hearing was set to be held March 24, 2011 then postponed held March 24, 2011 then postponed to June 23, 2011 (22 months after to June 23, 2011 (22 months after ACL was issued) to allow the State ACL was issued) to allow the State Water Board Prosecution Team more Water Board Prosecution Team more time to prepare.time to prepare.

Today: 7 months after the hearing Today: 7 months after the hearing we have yet to have a determination we have yet to have a determination on the ACL.on the ACL.

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Substantial Evidence Rule:

“There must be substantial evidence to support a finding of responsibility for each party named. This means credible and reasonable evidence which indicates the named party has responsibility.” (Order No. WQ 85-7 (Exxon, Co., U.S.A.) (emphasis added).)

ACLACL

ConstructioConstruction n

DewateringDewatering3030

Section 401 Application: “Project specifications developed for this project will prohibit any direct discharges to the SFER and/or its tributaries for construction de-watering activities. It is proposed to utilize portions of the gravel bar for construction de-watering during the dry season. Temporary sedimentation basins would be located a minimum of 100 feet from the live stream channel.” (Emphasis added.)

Location of the Dewatering Basin

Staff’s Deposition Testimony

Q. And you, also, mentioned that the Regional Board, in all likelihood, have approved shorter distances than 100 feet in other situations?A. Yes.Q. Knowing that there's nothing special about the 100 foot distance here, and also

knowing that the Board has probably accepted less than 100 feet in other situations, if, back at the time of the Application, Caltrans would have said: "The furthest we could put away a basin within the gravel bar in the work area is 70 feet," would there be any reason, from your standpoint, to disapprove that request?A. No.

(Deposition of Dean Prat, App. 108, p. 54.)

Location of the Dewatering Basin

ACLACL

Alleged Turbid Alleged Turbid Discharges to Discharges to

the Riverthe River

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Q. How do you know that there's petroleum product on those rocks?A. They are visually stained, and one of the plastic bags appears pink which would lead me to

believe it could be red diesel. It could be hydraulic fluid. I don't know exactly what it is…Q. It could be a pink bag. A. It could be.

* * *Q. Do you know where these rocks came from?A. I do not off the top of my head, no.Q. Do you know when they were collected?A. No.Q. Do you know where this picture was taken?A. No, although I will repeat that looking in the photographic record could provide context as to

where the photo was taken and the time that the photo was taken. (Deposition of Kason Grady, App. 104, p. 82-83.)

Ambiguous Photographs

August 29, 2006 Allegation

(MCM App. 16.)

Q. Do you know what type of fluid it is that's on these rocks?A. I do not.Q. Do you know when whatever type of fluid it was was discharged?A. When? Q. When. A. Well, no. I could only venture a guess.Q. Do you know what type of vehicle, if any, created the discharge?A. I do not.Q. Other than this photograph, do you have any other evidence supporting this violation on this date?A. No.

(Deposition of Kason Grady, App. 104, p. 84-85.)

Ambiguous Photographs

September 9, 2006 Allegation

(MCM App. 17.)

ACLACL

Alleged SlagAlleged Slag

DischargesDischarges

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Full containment is difficult and presents a threat to worker safety.

Welds occur quickly, and produce very little excess material.

Project Welding and Cutting

Custom and practice does not require containment.

No specific requirement for spark/slag containment exists in the Certification, in the Application, or in Caltrans’ standard BMPs.

Custom and Practice

Staff’s Deposition Testimony

Q. Do you have any information that introducing welding slag into a water body would create an adverse impact on water quality in any way?

A. Well, at a minimum, it would be considered sediment once it's there.Q. Any toxic effects that you're aware of?A. No.Q. Any impacts to fish or wildlife that you're aware of?A. Other than the impacts that sediment would have, no.

(Deposition of Kason Grady, App. 104, p. 139.)

Toxicity

On request, workers used five-gallon buckets and blankets, where possible.

Efforts to Contain

ACLACL

Alleged Alleged Rubbish and Rubbish and

Debris Debris DischargesDischarges

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● Full time cleaning laborer was hired by MCM.

● Trash receptacles all over work area.

● Extra precautions taken on trestle deck, including side netting.

● Work area kept extraordinarily clean.

But is the deck water tight????

Rubbish and Trash BMPs

ACLACL

Our Favorite Example of Our Favorite Example of What The Water Board What The Water Board

Considers “substantial and Considers “substantial and Credible Evidence” to Credible Evidence” to

warrant a $10,000 penalty.warrant a $10,000 penalty.

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Uncorroborated Photograph

(MCM App. 88.)

QUESTIONS?

General Water Permit - Ed Puchi

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