November 14, 2005
Down the drain | The threat of a lawsuit sparks attention to new rules requiring Maine companies to properly manage stormwater runoff
By Torrey Meeks
Until the late 1980s, the dominant mental image of water pollution involved giant concrete pipes jutting out over the calm waters of a major river, merrily pumping toxic chemicals in liquid Technicolor from dawn till dusk. Many people believed pollution came from single, isolated sources.
But the problem proved to be much more complicated when stormwater entered the picture. Due to the nature of stormwater, pollution occurs whenever rainfall comes in contact with flat, impervious surfaces such as roads, roofs and parking lots, and washes accumulated contaminants on the surface into drainage systems.
It's that situation that drew the attention of the Conservation Law Foundation in Brunswick, which on Sept. 8 filed notice of its intent to sue Rockland-based Ferraiolo Construction over what the CLF alleged was violation of the federal laws for stormwater maintenance outlined in the Clean Water Act. "We looked at the major players and we profiled that industry. We saw two or three companies had their stormwater permit ˆ nobody else did. Of the ones that didn't, Ferriaolo was one of the bigger companies. They're an archetypal example," said Steve Hinchman, a lawyer for the CLF.
The CLF's lawsuit highlights a regulation of which many Maine companies are unaware: All industrial operations in Maine ˆ from marinas to scrap metal junkyards to debarking operations and paper mills ˆ are required to have comprehensive plans and measures in place to control the flow of stormwater from their property. On Oct. 11, enforcement of industrial stormwater issues was transferred from the federal Environmental Protection Agency to the state Department of Environmental Protection, which recently launched a campaign to educate businesses about their obligations under the law.
Until Ferraiolo Construction received legal papers from the CLF, it, too, was unaware of the rules governing stormwater. "All our plants are air emissions approved. We do all that, but we did not know about this permit," said John Ferriaolo, owner of Ferriaolo Construction, which operates seven concrete plants in six locations across Maine.
Ferraiolo does say that the EPA sent representatives to his Rockland and Farmingdale plants; the officials mentioned a need for stormwater permitting, but they told the company to wait before pursuing the permits because the Maine Department of Environmental Protection was taking over enforcement.
That was two-and-a-half years ago. "I guess for whatever reason it took longer than they expected," Ferriaolo said.
According to the DEP, the delay was a matter of priorities and resources. The agency was busy instituting the stormwater protocols for municipalities and construction sites, and the handover from the EPA for industrial operations was put on a backburner until DEP officials got things streamlined in those areas, according to David Ladd, Maine DEP's stormwater coordinator.
In the meantime, the issue was lost in the shuffle of business as usual at Ferraiolo. Though the company had some structural stormwater measures in place, and had already implemented simple measures to prevent runoff such as sweeping its sites, using drip pans and applying absorbent to spills, it never submitted a prevention plan to the EPA or the DEP.
The disparity between law and enforcement in the stormwater arena was the reason the CLF decided to get involved. "Our research indicates that roughly 85% or better of Maine industries don't have required stormwater permits," said Hinchman. Before the new rules went into effect, the DEP pegged the number of operations with permits at close to 330, which is only 11% of an estimated 3,000 facilities that are required to be in compliance with the law.
Though Ferraiolo says the threat of a lawsuit hasn't affected business, the short notice for compliance at the two sites that require extensive work makes things a little difficult. "The state's taking over and they've been very accommodating. They were here helping out, [but] it's a lot of work," he said. "Trying to put it all together in 60 days is a little annoying, but a lot of it is in place already at most of my sites. Only a couple more need work."
Down to the nitty gritty
Compliance with stormwater regulations isn't entirely new. In 1972, Sen. Ed Muskie pushed the Clean Water Act through Congress to deal with the problem of pollution spiraling out of control on a national level. Maine's heavily contaminated Androscoggin River was the impetus behind his work on the bill. Though stormwater regulation wasn't part of the original plan, it was added on in 1987 with the passage of the Water Quality Act.
Though the EPA has not strictly enforced the law, the agency was doing inspections of the facilities in Maine that were already permitted, according to Ladd of the DEP. The DEP assumed enforcement authority from the EPA for construction sites and municipal governments in March 2003. The general permit for industrial stormwater took longer, coming into effect just a few weeks ago.
Of the estimated 3,000 Maine industrial operators, the DEP expects 1,000 to 1,500 to qualify as "no exposure" operations. A "no exposure" classification means the company doesn't need to do anything on its land to prevent stormwater drainage, because none is occurring. In order to qualify for the status, a company's industrial operations must not come into contact with snow, snowmelt or rain; for example, a small indoor metal fabrications shop, which keeps all its raw materials under a covered facility, likely would qualify for no exposure status. The other 1,500 operations will require differing levels of stormwater control, and will have to go through the process of complying with the permit.
The process of coming into compliance can appear confusing on the surface, but it's fairly simple when broken down. The DEP has issued a blanket permit known as a Multisector General Permit, which is essentially a list of rules and regulations for how stormwater must be handled at all industrial operations in Maine. Companies then individually construct a document called a Stormwater Pollution Prevention Plan. Think of the SWPPP as a mission statement outlining how the company is going to get its facilities into compliance and keep them that way. Once the plan is written, the company gets to work instituting the measures outlined in its individually tailored plan. As soon as the facility matches the plan, the company submits a notice of intent to the Maine DEP, and that's it.
"The genius of these stormwater permits is the notion that each company is responsible for figuring out the best way to reduce pollution from occurring," said the CLF's Hinchman. As soon as a company submits a notice of intent, it is covered by the permit.
But the process doesn't stop once a notice is submitted. The most important thing after a company whips its site into shape is to keep it that way. "Maintenance is a very important thing," Ladd said.
After a company writes its prevention plan and submits its NOI, it's important the plan stays on site; when the DEP does annual inspections, it checks the status of the grounds against the measures outlined in the plan to make sure the two are in synch. According to Ladd, the DEP has different requirements for inspection and monitoring than did the EPA. Under the federal program, companies with permits had to collect samples from their sites and have them taken to a lab and analyzed. Due to what Ladd describes as the relative ineffectiveness of this process, DEP inspections use a different set of parameters, visually inspecting ground samples instead of taking them to the lab.
Maine's industrial companies ˆ even those with no exposure qualification ˆ were required to submit their notice of intent and the $300 application fee by Nov. 14. The few companies currently operating under the EPA permit were allowed to remain in operation using the federal multisector permit until it expired on Oct. 30, at which time they were required to apply for coverage under the state plan.
Simple measures
The best way for companies to implement their stormwater prevention plans, according to Ladd, is by instituting simple, direct measures ˆ employee education, sweeping up at the end of the day, using drip pans and moving equipment and fluids out of the rain. "You pick [prevention measures], kind of like cafeteria style, which are pertinent to your site," Ferriaolo said.
The DEP will be checking for fluid spills and improper implementation of basic measures when they do site inspections. "It's the small and sometimes insidious things with the cumulative impact that are devastating to water quality," Ladd said.
After the basic things are out of the way, physical improvements ˆ diversions or check dams to guide water flow, built up areas of earth to slow water, and strategically placed detention ponds ˆ can be made around the property. Depending on the operation, an engineered system might be required, but, Ladd said, "I want to make sure that if you have a treatment to remove solids that's an engineered system that it's maintained. These types of treatments are only as good as their maintenance."
Engineered systems, which typically cost $15,000 to $50,000, are generally used when there is a situation in which contamination-laden particles are washed into the stormwater system, such as companies that deal with large volumes of liquid chemicals that bind easily, like antifreeze and oil. The system will filter out the solids and trap them in a catch basin. Most companies won't have to install an engineered system in order to come into compliance with the general permit. However, when used in the proper setting, engineered systems are extremely effective, said Ladd.
According to the program packet the DEP sent the EPA requesting authorization of stormwater enforcement, enforcement actions will include letters of warning, notices of violation and enforcement hearings, as well as referrals to the attorney general, the district court and the EPA. There will also be monetary penalties if things get to the latter formal enforcement stages, but the document states, "The primary emphasis is to obtain compliance using the least formal means appropriate to the situation."
Though the CLF would prefer that Maine companies see its action against Ferraiolo as a wake-up call, the organization is prepared to file more notices if events warrant. "We will watch carefully to see how businesses are doing with compliance. We'll look at the state's numbers and go from there," said Hinchman.
Reaching busy companies poses some problems, but the DEP has expressed confidence in its ability to notify affected companies. "The Ferraiolo case has certainly helped to get the word out, so in that regard it made it a little bit easier," said Ladd. "We're also doing a 5,000 letter mailing, we just developed an industry profile, we're doing a subsequent mailing, and then we're going to send out a postcard saying, 'Look, you have a week to file your NOI.' So we're going to get the word out."
Once Maine businesses have filed their NOI's, the DEP hopes its program will be more effective than the EPA's version, touting the advantage of local resources and expertise. The CLF expressed confidence in the changeover as well. "I think the state's new general permit for industry is a good permit, and that it will really improve the quality of the Maine watershed, if Maine businesses go out and apply for the permit," Hinchman said. "We need the ingenuity, the creativity, the venture capital and the resources of business to help us solve this problem. I'm a firm believer that businesses have to lead the way."
But the problem proved to be much more complicated when stormwater entered the picture. Due to the nature of stormwater, pollution occurs whenever rainfall comes in contact with flat, impervious surfaces such as roads, roofs and parking lots, and washes accumulated contaminants on the surface into drainage systems.
It's that situation that drew the attention of the Conservation Law Foundation in Brunswick, which on Sept. 8 filed notice of its intent to sue Rockland-based Ferraiolo Construction over what the CLF alleged was violation of the federal laws for stormwater maintenance outlined in the Clean Water Act. "We looked at the major players and we profiled that industry. We saw two or three companies had their stormwater permit ˆ nobody else did. Of the ones that didn't, Ferriaolo was one of the bigger companies. They're an archetypal example," said Steve Hinchman, a lawyer for the CLF.
The CLF's lawsuit highlights a regulation of which many Maine companies are unaware: All industrial operations in Maine ˆ from marinas to scrap metal junkyards to debarking operations and paper mills ˆ are required to have comprehensive plans and measures in place to control the flow of stormwater from their property. On Oct. 11, enforcement of industrial stormwater issues was transferred from the federal Environmental Protection Agency to the state Department of Environmental Protection, which recently launched a campaign to educate businesses about their obligations under the law.
Until Ferraiolo Construction received legal papers from the CLF, it, too, was unaware of the rules governing stormwater. "All our plants are air emissions approved. We do all that, but we did not know about this permit," said John Ferriaolo, owner of Ferriaolo Construction, which operates seven concrete plants in six locations across Maine.
Ferraiolo does say that the EPA sent representatives to his Rockland and Farmingdale plants; the officials mentioned a need for stormwater permitting, but they told the company to wait before pursuing the permits because the Maine Department of Environmental Protection was taking over enforcement.
That was two-and-a-half years ago. "I guess for whatever reason it took longer than they expected," Ferriaolo said.
According to the DEP, the delay was a matter of priorities and resources. The agency was busy instituting the stormwater protocols for municipalities and construction sites, and the handover from the EPA for industrial operations was put on a backburner until DEP officials got things streamlined in those areas, according to David Ladd, Maine DEP's stormwater coordinator.
In the meantime, the issue was lost in the shuffle of business as usual at Ferraiolo. Though the company had some structural stormwater measures in place, and had already implemented simple measures to prevent runoff such as sweeping its sites, using drip pans and applying absorbent to spills, it never submitted a prevention plan to the EPA or the DEP.
The disparity between law and enforcement in the stormwater arena was the reason the CLF decided to get involved. "Our research indicates that roughly 85% or better of Maine industries don't have required stormwater permits," said Hinchman. Before the new rules went into effect, the DEP pegged the number of operations with permits at close to 330, which is only 11% of an estimated 3,000 facilities that are required to be in compliance with the law.
Though Ferraiolo says the threat of a lawsuit hasn't affected business, the short notice for compliance at the two sites that require extensive work makes things a little difficult. "The state's taking over and they've been very accommodating. They were here helping out, [but] it's a lot of work," he said. "Trying to put it all together in 60 days is a little annoying, but a lot of it is in place already at most of my sites. Only a couple more need work."
Down to the nitty gritty
Compliance with stormwater regulations isn't entirely new. In 1972, Sen. Ed Muskie pushed the Clean Water Act through Congress to deal with the problem of pollution spiraling out of control on a national level. Maine's heavily contaminated Androscoggin River was the impetus behind his work on the bill. Though stormwater regulation wasn't part of the original plan, it was added on in 1987 with the passage of the Water Quality Act.
Though the EPA has not strictly enforced the law, the agency was doing inspections of the facilities in Maine that were already permitted, according to Ladd of the DEP. The DEP assumed enforcement authority from the EPA for construction sites and municipal governments in March 2003. The general permit for industrial stormwater took longer, coming into effect just a few weeks ago.
Of the estimated 3,000 Maine industrial operators, the DEP expects 1,000 to 1,500 to qualify as "no exposure" operations. A "no exposure" classification means the company doesn't need to do anything on its land to prevent stormwater drainage, because none is occurring. In order to qualify for the status, a company's industrial operations must not come into contact with snow, snowmelt or rain; for example, a small indoor metal fabrications shop, which keeps all its raw materials under a covered facility, likely would qualify for no exposure status. The other 1,500 operations will require differing levels of stormwater control, and will have to go through the process of complying with the permit.
The process of coming into compliance can appear confusing on the surface, but it's fairly simple when broken down. The DEP has issued a blanket permit known as a Multisector General Permit, which is essentially a list of rules and regulations for how stormwater must be handled at all industrial operations in Maine. Companies then individually construct a document called a Stormwater Pollution Prevention Plan. Think of the SWPPP as a mission statement outlining how the company is going to get its facilities into compliance and keep them that way. Once the plan is written, the company gets to work instituting the measures outlined in its individually tailored plan. As soon as the facility matches the plan, the company submits a notice of intent to the Maine DEP, and that's it.
"The genius of these stormwater permits is the notion that each company is responsible for figuring out the best way to reduce pollution from occurring," said the CLF's Hinchman. As soon as a company submits a notice of intent, it is covered by the permit.
But the process doesn't stop once a notice is submitted. The most important thing after a company whips its site into shape is to keep it that way. "Maintenance is a very important thing," Ladd said.
After a company writes its prevention plan and submits its NOI, it's important the plan stays on site; when the DEP does annual inspections, it checks the status of the grounds against the measures outlined in the plan to make sure the two are in synch. According to Ladd, the DEP has different requirements for inspection and monitoring than did the EPA. Under the federal program, companies with permits had to collect samples from their sites and have them taken to a lab and analyzed. Due to what Ladd describes as the relative ineffectiveness of this process, DEP inspections use a different set of parameters, visually inspecting ground samples instead of taking them to the lab.
Maine's industrial companies ˆ even those with no exposure qualification ˆ were required to submit their notice of intent and the $300 application fee by Nov. 14. The few companies currently operating under the EPA permit were allowed to remain in operation using the federal multisector permit until it expired on Oct. 30, at which time they were required to apply for coverage under the state plan.
Simple measures
The best way for companies to implement their stormwater prevention plans, according to Ladd, is by instituting simple, direct measures ˆ employee education, sweeping up at the end of the day, using drip pans and moving equipment and fluids out of the rain. "You pick [prevention measures], kind of like cafeteria style, which are pertinent to your site," Ferriaolo said.
The DEP will be checking for fluid spills and improper implementation of basic measures when they do site inspections. "It's the small and sometimes insidious things with the cumulative impact that are devastating to water quality," Ladd said.
After the basic things are out of the way, physical improvements ˆ diversions or check dams to guide water flow, built up areas of earth to slow water, and strategically placed detention ponds ˆ can be made around the property. Depending on the operation, an engineered system might be required, but, Ladd said, "I want to make sure that if you have a treatment to remove solids that's an engineered system that it's maintained. These types of treatments are only as good as their maintenance."
Engineered systems, which typically cost $15,000 to $50,000, are generally used when there is a situation in which contamination-laden particles are washed into the stormwater system, such as companies that deal with large volumes of liquid chemicals that bind easily, like antifreeze and oil. The system will filter out the solids and trap them in a catch basin. Most companies won't have to install an engineered system in order to come into compliance with the general permit. However, when used in the proper setting, engineered systems are extremely effective, said Ladd.
According to the program packet the DEP sent the EPA requesting authorization of stormwater enforcement, enforcement actions will include letters of warning, notices of violation and enforcement hearings, as well as referrals to the attorney general, the district court and the EPA. There will also be monetary penalties if things get to the latter formal enforcement stages, but the document states, "The primary emphasis is to obtain compliance using the least formal means appropriate to the situation."
Though the CLF would prefer that Maine companies see its action against Ferraiolo as a wake-up call, the organization is prepared to file more notices if events warrant. "We will watch carefully to see how businesses are doing with compliance. We'll look at the state's numbers and go from there," said Hinchman.
Reaching busy companies poses some problems, but the DEP has expressed confidence in its ability to notify affected companies. "The Ferraiolo case has certainly helped to get the word out, so in that regard it made it a little bit easier," said Ladd. "We're also doing a 5,000 letter mailing, we just developed an industry profile, we're doing a subsequent mailing, and then we're going to send out a postcard saying, 'Look, you have a week to file your NOI.' So we're going to get the word out."
Once Maine businesses have filed their NOI's, the DEP hopes its program will be more effective than the EPA's version, touting the advantage of local resources and expertise. The CLF expressed confidence in the changeover as well. "I think the state's new general permit for industry is a good permit, and that it will really improve the quality of the Maine watershed, if Maine businesses go out and apply for the permit," Hinchman said. "We need the ingenuity, the creativity, the venture capital and the resources of business to help us solve this problem. I'm a firm believer that businesses have to lead the way."
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