COMPLIANCE SECTION

Exemption from Permitting Granted to
Facilities with “No Exposure” to Storm Water

Many facilities have obtained a storm water permit due to the presence of “industrial activities” which may be exposed to storm water. The Storm Water Phase II rules, issued in December 1999, allow for these facilities to be exempted from permitting if they can certify that no materials are exposed to storm water.

BACKGROUND
The USEPA has revised the original no exposure provision, found at 40 CFR 122.26 (b)(14), to be a conditional exclusion applicable to all categories of industrial activity (except construction activity) with no exposure of materials and activities to storm water. The revision, found at Section 122.26 (g) of the Storm Water Phase II rule, requires industrial operators claiming no exposure to submit written certification that a condition of no exposure exists at their facility/site. The final rule includes a No Exposure Certification Form (App 4) that is intended to serve as the required written certification in areas where EPA is the NPDES Permitting Authority. Some states with delegated authority over storm water are still working to develop their No Exposure rules and forms. In Ohio, the EPA is still working to develop a state specific form. Under the new rules, discharges composed entirely of storm water are not storm water discharges associated with industrial activity if there is “no exposure” of industrial materials and activities to rain, snow, snowmelt and/or runoff, and the dischargers satisfies other specific conditions of paragraphs (g)(1) through (g)(4) in the rule. The rule defines “no exposure” to mean that “all industrial materials and activities are protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or activities include, but are not limited to, material handling equipment or activities, industrial machinery, raw materials, inter-mediate products, by-products, final products, or waste products. Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, or waste product.” To qualify for a no exposure certification, a facility must: 1) Provide a storm resistant shelter; 2) Complete and sign a certification that there are no discharges of storm water contaminated by exposure to industrial materials and activities from the facility except as provided in g(2); and, 3) Submit the signed certification to the NPDES permitting authority every five years (or state delegated authority, as in Ohio). Following these activities, the director will review the certification. Inspection reports done by the director will be available to the public upon request. In addition, if the facility discharges through an MS4, if it is requested the property must submit a copy to the MS4 operator and allow inspection and public reporting by the MS4 operator. Several exceptions are provided to the no discharge provision (these do not require a storm resistant shelter):

• Drums, barrels, tanks, and similar containers that are tightly sealed, provided those containers are not deteriorated and do not leak
• Adequately maintained vehicles used in material handling
• Final products, other than products that would be mobilized in storm water discharge (e.g., rock salt)

Limitations to the no exposure provision are that it cannot be applied to construction activities; it is available on a facility-wide basis only, not for individual outfalls; and, if circumstances change, the exclusion will not longer apply. In addition, the rule indicates that permitting authority “retains the authority to require permit authorization (and deny this exclusion) upon making a determination that the discharge causes, has a reasonable potential to cause, or contributes to an in-stream excursion above an applicable water quality standard, including designated uses.”

SUMMARY
In December, 1999 several revisions to the no exposure provisions of the Storm water Phase I rules were made which have made it possible for a greater number of facilities to seek the no exposure exclusion from permitting. A form indicating and documenting that no exposure to storm water exists must be submitted for approval to the permitting authority. If you require assistance with storm water permitting or no exposure issues, or would like to know how to obtain further information on the Phase II rules, please contact Emily Covert or Kara Pettinger at the Payne Firm at (513) 489-2255 or via e-mail at eac@paynefirm.com and kmp@paynefirm.com.