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Related Practices
Related Practices

California Zeroes in on Stormwater in Novel TMDL for PCBs

Beveridge & Diamond, P.C., November 12, 2009

On October 20, 2009, California approved a watershed cleanup plan for polychlorinated biphenyls (“PCBs”) in the San Francisco Bay that represents the first major regulatory effort in the country to set enforceable numeric pollutant load allocations in stormwater permits.  If approved by U.S. EPA, the San Francisco Bay cleanup plan for PCBs could open the door for other clean-up plans in California and nationwide that require numeric pollutant load allocations in stormwater discharge permits, as well as additional cleanup plans addressing legacy pollutants like PCBs.  This represents a significant departure from the traditional reliance on best management practices (“BMPs”) to address stormwater pollution.  A number of companies and local water and sewer districts strongly opposed the cleanup plan, contending that the California State Water Resources Control Board and the San Francisco Regional Water Quality Control Board failed to conduct the requisite analysis of the plan’s economic impacts before approving it.

California’s decision to set enforceable numeric pollutant load allocations for PCBs in municipal stormwater and municipal and industrial wastewater discharge permits results from its decision in 1998 to list the San Francisco Bay as an impaired waterbody under section 303(d) of the Clean Water Act (“CWA”).  PCBs were produced and utilized in large quantities in the San Francisco region until the late 1970’s, leading to runoff into the San Francisco Bay and accumulation into Bay sediments.  Commercial and sport fish in the Bay contain elevated levels of PCBs and the Bay fails to meet water quality standards for PCBs.  In 2008, the San Francisco Bay Regional Water Quality Control Board (the “San Francisco Board”) adopted a resolution to amend its Basin Plan to establish a Total Maximum Daily Load (“TMDL”) for PCBs in the Bay.  TMDLs are required under the CWA based on the calculation of both the pollutant reductions and the allocation of pollutant loads to point sources and nonpoint sources necessary to meet water quality standards in a waterbody.  Although numerous atmospheric, municipal and industrial wastewater, and municipal stormwater sources contribute to PCBs in San Francisco Bay and legacy PCBs have been present in Bay sediments for decades, the focus of this new TMDL for PCBs is on stormwater pollution.  To that end, the San Francisco Board developed its novel 2008 resolution requiring enforceable numeric pollutant load allocations for PCBs in stormwater permits.

California’s San Francisco Bay TMDL is unique and noteworthy in many respects.  The most interesting, and likely the most troubling to permitted stormwater entities, is the inclusion of legally-enforceable numerical pollutant load allocations in CWA National Pollution Discharge Elimination System (“NPDES”) stormwater permits issued to stormwater runoff management agencies and the California Department of Transportation.  The TMDL sets the numerical pollutant load for PCBs that each Bay county can discharge into the Bay through stormwater runoff; this enforceable numeric pollutant load is then included in each stormwater agencies’ NPDES permits.  Numerical stormwater runoff load allocations are set to include all current and future permitted discharges (not addressed by another allocation) and unpermitted discharges within a stormwater agency’s jurisdiction, including discharges from California Department of Transportation roadways and non-roadway facilities and rights-of-way, atmospheric deposition, public facilities, properties adjoining stream banks, industrial facilities, and construction sites. 

Also noteworthy is the 20-year, phased-in approach that the San Francisco Board developed to attain stormwater load allocations in an increasingly aggressive manner.  Each five-year NPDES permit will include requirements based on the most recent assessment of BMPs and control measures expected to reduce PCBs in urban runoff to the maximum extent practicable.  In the first five-year permit term, stormwater permittees must implement pilot studies to assess the effectiveness and technical feasibility of control measures, but by the second five-year term, stormwater permittees must implement control measures in strategic locations and develop a plan for full implementation of control measures that will lead to attainment of the enforceable numeric TMDL pollutant load allocations.  This includes a requirement that permittees develop and implement a system to quantify PCBs in their runoff loads and load reductions through control or treatment of PCBs. 

A number of significant concerns have been raised by dischargers regarding the legality of the TMDL and San Francisco and the State Board’s economic analysis of this TMDL.  A leading concern, considering the pervasive nature of stormwater and the TMDL permit requirements, is that enforcement of these numeric stormwater permit requirements would make stormwater agencies responsible for another entity’s pollution, which may violate the CWA.  Similar worries led Los Angeles County officials to strongly oppose another State Board order requiring the Los Angeles Regional Water Quality Control Board to incorporate a stringent bacteria TMDL in its stormwater permit.  Others are wondering exactly how BMPs and control measures, the traditional yet imprecise tools utilized to control stormwater pollution, can be used to enforce a precise numeric limits for pollutant load allocations.  Stormwater entities also are concerned that citizen suits may be filed, for even if a stormwater entity implements all the BMPs and control measures required in its permit, it still may not meet the numeric load allocations.  Finally, overlaying all of these concerns is the belief by many regulated entities that the cost of the stormwater TMDL — estimated by one company to be $10 billion over 20 years — is simply insurmountable and the San Francisco and State Boards did not sufficiently analyze these costs, which they contend must be done under recent court decisions.

For further information, please contact Nico van Aelstyn at (415) 262-4008,, Richard Davis at (202) 789-6025,, or Ami Grace-Tardy at (202) 789-6076,




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