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November 18, 2016
Stormwater: Who is a 'qualified' person?
By Emily Remmel, JD, Legal Editor

In the world of stormwater, certain “qualified” professionals have hefty responsibilities, such as conducting facility inspections, monitoring, and developing and certifying the stormwater pollution prevention plan (SWPPP). But, what does it really mean to be a qualified professional?

Often, in National Pollution Discharge Elimination System (NPDES) stormwater permits, there is language referring to a qualified person, qualified professional, and even qualified personnel. In most instances it is a singular role, but the differing language and requirements can easily cause confusion for the regulated community.

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To make matters worse, some states have authorization to implement and enforce their own stormwater programs and use similar but not identical language. For example, in California, there are qualified industrial stormwater practitioners (QISPs) as well as qualified stormwater practitioners (QSPs). These roles are similar to the qualified person but are identified differently.

There are significant penalties for submitting false information, including the possibility for civil fines and criminal enforcement for knowing violations. Therefore, it is imperative to know whether a qualified person truly meets the definition of a qualified person.

Qualifying a “qualified” person

In an effort to remain consistent, the three federal stormwater general permits (construction, industrial, and the municipal small separate stormwater systems) each recognized the role of a qualified person in a similar manner. Under these U.S. Environmental Protection Agency (EPA) stormwater permits, individuals assuming the role of a qualified person must possess three specific skills, including:

  • Knowledge of the principles and practice of erosion and sediment control and pollution prevention;
  • Ability to assess conditions at the construction site that could impact stormwater quality; and
  • Capacity to assess the effectiveness of any stormwater controls selected and installed, and the ability of such controls to meet the permit’s requirements.

Qualified persons have very specific responsibilities, such as conducting routine facility inspections under the industrial stormwater permit. One member identified in the facility’s stormwater pollution prevention team must tag along with the qualified person conducting the inspection. The question that often plagues permittees is do you need two people or can one assigned “super” stormwater qualified person do the job? The answer is that you need two people, a qualified person conducting the routine inspection and a member of the stormwater pollution prevention team.

Is there a difference between a qualified person and qualified personnel?

On the federal level, there is one distinct difference between the qualified person and the qualified personnel. The federal industrial and construction stormwater permit requires the SWPPP to be developed and certified by a qualified person, whereas qualified personnel must certify compliance with the permit.

In this instance, the qualified personnel certifying that the facility is in compliance with the terms of the permit must meet certain signatory requirements. The signatory requirements are determined by the type of facility (e.g., corporation, partnership, or municipality). A responsible corporate officer, general partner, or principal executive officer or ranking elected official is usually the person who meets the signatory requirements to sign and certify compliance with the permit.

Guidance on the signature and certification requirements can be found here.

How do states determine a qualified person?

Most states have received authorization from the EPA to implement and enforce their own stormwater permitting program. However, Massachusetts, New Hampshire, New Mexico, and Idaho remain under the federal permitting scheme, as well as facilities in U.S. territories and Indian land. These states follow the above, federal qualified person standard.

Authorized states can either adopt EPA’s permitting language or can adjust the permit language and requirements, so long as the program is at least as strict as the federal requirements.

California is a prime example of how states can deviate from the qualified person standard. California’s industrial stormwater permit requires permittees to designate a person as a QISP for each facility. The QISP must receive state-specific training and pass a competency exam to demonstrate the person has sufficient knowledge of the stormwater permit.

Other states require the qualified person to be certified as a Certified Professional in Erosion and Sediment Control (CPESC) or a Certified Professional in Stormwater Quality (CPSWQ). A state may require ongoing training for individuals to keep their certification status.
Permittees should refer to their stormwater permits for more specific information.

Tips for understanding the qualified person standard

Deciphering and determining which individual should be the qualified person for your facility is important. A few tips to consider, when selecting a qualified person include:

  • Read the permit in its entirety to ensure you understand all of the responsibilities of the qualified person.
  • Pay particular attention to the definitions, as they can often provide clarity when questions arise.
  • Know the skills and qualifications of your staff, and/or be willing to consider a third party to ensure a properly qualified individual is selected.
  • Be sure the candidate is able and willing to contact the implementing state or federal region to ask for guidance in order to ensure the site remains in compliance.

Understanding the responsibilities of the qualified person is critical for owners and operators complying with stormwater permits. Permittees that fail to designate adequately trained and knowledgeable qualified personnel can find themselves quickly out of compliance and in hot water with enforcement agencies.

Copies of the federal industrial and construction stormwater permits are available for review.