Thursday, March 5, 2009

Making SWPPP Available to Public - EPA Requirement

Stormwater discharge permit holders around the county understand that they must prepare and maintain a stormwater pollution prevention plan (SWPPP), and they must make the SWPPP available for review by the permitting agency. In many States, the SWPPP must be provided to local stormwater management agencies upon request.

Whether or not the SWPPP must be provided to members of the general public, upon request, is much less consistent from State to State and much more controversial. Because the SWPPP is required to contain specific information on activities, processes, raw materials, and other site specific information, it could conceivably contain confidential business and/or security information.

Many State general stormwater permits are silent on the issue of making the SWPPP available to the public. For States that do address the issue, the approach varies widely. Here is a sampling of permit language:

California General Industrial Discharge Permit:
“The SWPPP shall be provided, upon request, to the Regional Water Board. The SWPPP is considered a report that shall be available to the public by the Regional Water Board under Section 308(b) of the Clean Water Act.”

Colorado General Industrial Discharge Permit:
“All SWMPs required under this permit are considered reports that shall be available to the public under Section 308(b) of the CWA. The owner or operator of a facility with stormwater discharges covered by this permit shall make plans available to members of the public upon request. However, the permittee may claim any portion of a stormwater pollution plan as confidential in accordance with 40 CFR Part 2.”

New York General Industrial Discharge Permit:
“…in the interest of the public’s right to know, the permittee must make a copy of the SWPPP available to the public upon written request. (Note: A facility may withhold justifiable portions of the SWPPP from public review that contain trade secrets, confidential commercial information or critical infrastructure information in accordance with 6 NYCRR Part 616.7).”

In 2008, US EPA revised its own general permit (“MSGP-2008”) and clarified its requirements for making the SWPPP available to the public. EPA’s approach does not require providing access to the public directly, but it clarified that the public could obtain access to portions of the SWPPP through EPA.

US EPA Multisector General Permit (MSGP-2008)
“You must retain a copy of the current SWPPP required by this permit at the facility, and it must be immediately available to EPA; a State, Tribal, or local agency approving stormwater management plans; the operator of an MS4 receiving discharges from the site; and representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) at the time of an onsite inspection or upon request. EPA may provide access to portions of your SWPPP to a member of the public upon request. Confidential Business Information (CBI) may be withheld from the public, but may not be withheld from those staff cleared for CBI review within EPA, USFWS, or NMFS.
EPA encourages you to post your SWPPP online and provide the website address on your NOI.”

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Stormwater Permitting & Regulatory Support, Stormwater Pollution Prevention Plans (SWPPP), Stormwater Monitoring and Stormwater Training.

For further information contact Caltha LLP at
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