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In re San Pedro Forklift

Case Number:CWA Appeal No. 12-02
ELR Citation: 43 ELR 41366

Region 9 (“Region”) of the United States Environmental Protection Agency (“EPA” or “Agency”) appeals from Administrative Law Judge Barbara A. Gunning’s (“ALJ”) Initial Decision in In re San Pedro Forklift, Docket No. CWA-09-2009-0006, issued January 27, 2012. The decision dismissed a complaint the Region had filed against San Pedro Forklift, Inc. (“San Pedro”) of Long Beach, California, alleging the following three counts of violation of the Clean Water Act’s (“CWA”) storm water program: (1) unlawful discharges of “storm water associated with industrial activity” to waters of the United States without a CWA permit authorizing the discharges, in violation of CWA § 301(a), 33 U.S.C. § 1311(a), and 40 C.F.R. § 122.26(b)(14)(viii); (2) failure to apply for a CWA permit prior to commencing industrial activities, in violation of CWA § 308(a), 33 U.S.C. § 1318(a), and 40 C.F.R. § 122.21; and (3) failure to develop and implement a storm water pollution prevention plan and a storm water monitoring plan prior to commencing industrial activities, in violation of the State of California’s general permit for industrial storm water discharges.

After a six-day evidentiary hearing, the ALJ held that the Region failed to prove that San Pedro was regulated under 40 C.F.R. § 122.26(b)(14)(viii) as a “transportation facility” having a “vehicle maintenance shop” and/or “equipment cleaning operations.” Storm water discharges from such facilities are considered “discharges associated with industrial activity” and lawfully may occur only in accordance with a permit issued under section 402(p) of the CWA, 33 U.S.C. § 1342(p), which San Pedro did not have in the period alleged in the complaint. Accordingly, the ALJ dismissed the complaint for lack of regulatory jurisdiction.

On appeal, the Region asks the Environmental Appeals Board (“Board”) to reverse and remand the Initial Decision, claiming that the ALJ erred by dismissing the complaint on the basis of an unreasonably narrow interpretation of the term, “associated with industrial activity,” and the related terms, “vehicle maintenance shop” and “equipment cleaning operations.” San Pedro argues that the ALJ did not err and asks the Board to affirm the Initial Decision.

Held: The ALJ erred in defining the regulatory terms, “vehicle maintenance shop” and “equipment cleaning operations,” too narrowly and inconsistent with the purpose and intent of the CWA, the storm water regulations, and the Agency’s own interpretation of the regulations, as expressed in the preamble to those rules and Agency guidance documents. The Board holds that the term, “vehicle maintenance shop,” in the storm water regulations refers to a nontransient area or location that is designated for use for vehicle maintenance or in which vehicle maintenance is conducted on a regular or repeated basis, including intermittently or sporadically. The Board holds further that the term, “equipment cleaning operations,” in the storm water regulations refers to cleaning of industrial equipment anywhere on a facility’s site pursuant to a business process or practice for equipment cleaning. The Board rejects as overbroad the Region’s interpretation that evidence of any on-site vehicle maintenance or equipment cleaning activities alone can establish the required elements of “vehicle maintenance shop” or “equipment cleaning operations,” respectively.