VI Storm Water Regulation Under the National Pollutant Discharge Elimination System (npdes)

LibraryIllinois Environmental Law for Non-Environmental Lawyers (2017 Ed.)
VI. Storm Water Regulation Under the National Pollutant Discharge Elimination System (NPDES)1
Aimee Davenport
Evans & Dixon, Columbia, MO
Robert E. Schmittgens
The Cagle Law Firm - St. Louis, MO
Michael White
J.D. Candidate - University of Missouri - Columbia, MO

A. Storm Water

Long considered a major source of unregulated water pollution, storm water discharges were initially addressed by Congress in 1987. In the 1987 Amendments to the Clean Water Act ("CWA") 33 U.S.C. § 1251 et seq, Congress directed the United States Environmental Protection Agency (USE-PA) to promulgate rules regulating storm water pursuant to the National Pollutant Discharge Elimination System ("NPDES"). U.S EPA phased in regulation of storm water. Initially, Phase I of the Storm Water Regulations regulated only storm water from Medium and Large Municipal Separate Storm Sewer Systems ("MS4s") located in areas with populations of one hundred thousand (100,000) or more, and eleven (1)1 categories of industrial activity, which included construction activity that disturbed five (5) or more acres of land. According to USEPA, these eleven (11) regulated activities had been determined to have the greatest potential to adversely impact water quality.

In 1999, USEPA published its "Phase II" Storm Water Regulations, and expanded the NPDES regulatory reach to include storm water discharges from certain "regulated small" MS4s and construction activities that disturb one or more acres of land.2

In Illinois, the NPDES program is administered by the Illinois Environmental Protection Agency pursuant to an agreement with USEPA. Some states have eschewed the opportunity to administer the program and USEPA performs that function.

B. What Is Storm Water Run Off, and Why Is It a Problem?

According to USEPA, storm water consists of "storm water runoff, snow melt runoff, and surface runoff and drainage." 40 C.F.R. § 122.26(b)(13). The Illinois EPA defines storm water runoff as "rain water or melted snow that runs off the land and enters lakes, rivers, streams and ponds." (See: http://www.epa.state.il.us/small-business/phase-two/ ). According to the regulatory agencies, as storm water travels over land, it picks up "pollutants" such as pesticides, metals and oil, and eventually discharges those pollutants into "waters in the United States." Storm water is also seen as a cause of increased erosion that results in soil sediments being delivered into surface water bodies. According to the regulatory agencies, storm water, with pollutants and/or sediments, seriously degrades water quality.

C. "No Exposure" Exemption

While the Phase I and Phase II Storm Water Regulations potentially apply to a large number of industrial and construction activities, the regulations do provide an opportunity to apply for an exemption based upon a showing of "No Exposure." Generally, if industrial materials or activities are not exposed to storm water, then the operator may apply for an exemption from the regulatory agency in the form of a "No Exposure" certificate. The "No Exposure" Exemption, however, does not apply to construction activities.

In general, a condition of "No Exposure" may exist in an industrial facility if all of the industrial materials and activities are protected by a storm-resistant shelter that prevents exposure to rain, snow, snow melt and/or run off. A storm-resistant shelter is not required for tightly sealed drums, barrels, tanks and other similar containers, or for adequately maintained vehicles used in material handling, or for final products other than products, such as rock salt, that would be mobilized in storm water.

In the proper case, the regulator will provide a "No Exposure" Certificate, confirming the operation's exempt status, so long as the operator maintains the physical conditions that keep all industrial materials and activities out of contact with storm water. In the absence of maintaining those conditions, the exemption is automatically revoked, and the operator will be required to apply for a Storm Water Permit under the program.

D. Who Is Covered?

In the absence of a certificate of "No Exposure," the NPDES Storm Water Permit Program identifies covered entities by reference to the Standard Industrial Classification ("SIC") codes. Paper producers, chemical producers, lumber and wood producers, leather tanning and finishing industries for stone, clay, glass and concrete producers such as quarries, as well as fabricated metal producers, mineral industries and landfills, recyclers and junkyards, transportation facilities and construction operations are likely regulated entities subject to the NPDES Storm Water Permit Program. Those entities must have a Storm Water Permit if the activities, raw materials, waste or industrial machinery are exposed to storm water.

E. General and Individual Permits

Like some other environmental permit programs in the United States, the NPDES Storm Water Permit Program is administered through the use of "General" and "Individual" Permits. "General Permits" are for those activities and circumstances that are considered by the regulator to be generic and common, and which do not require special analysis or negotiations with the regulator on terms or conditions for operation. When the activities under consideration are unusual, or have the potential to significantly impact water quality, then "Individual Permits," with site specific criteria, may be required. Occasionally, as a matter of strategy, the operator may choose to seek an Individual Permit even where a "General Permit" may apply, because the industrial process under consideration may involve nuances and site specific considerations making negotiated conditions with the regulator operate something like a variance and providing the permitted facility with a "permit shield" in the event of future enforcement. In those instances that do not qualify for a "No Exposure" certificate, most operators choose the General Permit Program and its standardized application, rather than the Individual Permit Program and its detailed permit application and site specific considerations.

F. "General Permit" - Notice of Intent

Indeed, the majority of NPDES Storm Water Permits are General Permits, which are initiated by submitting a form "Notice of Intent" ("NOI") to the appropriate regulatory agency. In general, the NOI form seeks a description of the industrial/construction activity under consideration and a description of the specific storm water discharges involved at the operator's facility. The NOI form is designed to give the regulatory agency notice of the regulated industrial/construction activity, and is an acknowledgement, by the applicant, that: (1) the applicant's activities are subject to the Storm Water Regulations, and (2) that the applicant will perform those industrial activities only...

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