One of the toughest tasks in compliance audit is telling a well-intentioned client that the environmental program that he has been ignoring does, in fact, apply to his operation. In most instances, it’s not a matter of being unaware of the regulation but instead incorrectly determining that the requirement doesn’t apply. This can result from several sources of false confidence:
• A program may not be an exact fit–An emergency response program would seem on the surface not to apply to a facility that doesn’t house any hazardous materials or dispose of hazardous waste
• A program may not have been intended for them–An oil spill prevention program would seem not to apply to a facility that does not store oil
• A facility may have had successful agency compliance inspections–The inspector may have been conducting a media-specific inspection and may not have looked at issues outside that specific medium. Or, as inspectors or human, he may have just missed it—this time.
This is the third in a five part series. In part one, we examined the requirements of the Emergency Planning and Community Right to Know Act (EPCRA). In part three, we looked at the Clean Water Act’s Spill Prevention Rule.
In this second article of a five part series, we will briefly touch on the requirements of the Clean Water Act’s Stormwater Permitting program.
Stormwater includes rainfall and snow melt that leaves your facility either through a concentrated discharge such as a ditch or culvert or overland as a sheet flow. An industrial facility is required to obtain a permit and develop a plan to prevent stormwater contamination if it has a stormwater discharge associated with an industrial or commercial activity either directly to waters of the United States or to a municipal separate storm sewer system and it engages in one or more of the industrial or commercial activities identified by USEPA in the regulation.
“Storm water discharge associated with industrial activity” means the discharge from any conveyance that is used for collecting stormwater and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial facility. This includes, but is not limited to:
- Discharges from industrial plant yards;
- Immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility;
- Material handling sites;
- Refuse sites;
- Sites used for the application or disposal of process waste waters;
- Sites used for the storage and maintenance of material handling equipment;
- Sites used for residual treatment, storage, or disposal and shipping and receiving areas;
- Manufacturing buildings;
- Storage areas (including tank farms) for raw materials, and intermediate and final products; and
- Areas where industrial activity has taken place in the past and significant materials remain and are exposed to stormwater.
Material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product or waste product.
There is a ‘no exposure” provision intended for facilities with industrial materials and activities that are entirely sheltered from stormwater so that the stormwater does not become contaminated with pollutants. For many facilities, meeting the no exposure provisions is a simplified way of complying with the stormwater requirements.
The current regulatory definition of no exposure is:
…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, intermediate products, by-products, final products and waste products.
There are many activities for which a storm resistant shelter is not required. These are:
- Drums, barrels, storage tanks and similar containers that are tightly sealed, in good condition, and do not leak. Sealed means banded or otherwise secured and without operational taps or valves;
- Adequately maintained vehicles used in materials handling;
- Many final products which are meant to be used outdoors (e.g., automobiles) that pose little risk of stormwater contamination, i.e., the products cannot be mobilized by precipitation or runoff; and
- Containers, racks and other transport platforms (e.g., wooden pallets) used for the storage or conveyance of final products can also be stored outside, providing they are pollutant-free.
Particulate matter (e.g., dusts, metals, and other solids) emitted from roof stacks and vents are also a concern. If the roof stacks and vents are regulated by other environmental protection programs and do not cause stormwater contamination, they are not considered exposed. But, visible deposits of residuals and particulate matter not otherwise regulated that are evident in stormwater are considered exposed.
Another source of concern is leaking discharge pipes. If the material leaking from the pipes is exposed to stormwater, then this is a condition of exposure.
Past sources of contamination remaining on site are considered exposed. For example, residues from a spill of material that has not been cleaned up from the ground or other outside objects and structures are considered exposed.
General refuse and trash (e.g., office paper, wastes from a cafeteria, boxes, etc), is not considered exposed if the trash container (e.g., dumpster) is completely covered and no liquid can drain from holes in the bottom or be lost when loaded onto a garbage truck. If industrial refuse and trash is left uncovered, it is considered exposed.
Once applicability has been determined, the facility is required to submit a permit application summarizing the facility, its potential pollutant sources, and the preventive measures taken to protect stormwater quality. The stormwater permit will require the development of best management practices for preventing stormwater pollution, visual inspections and in some instances laboratory analysis, periodic reporting to the jurisdictional agency, and a written summary of all of these aspects in a Stormwater Pollution Prevention Plan (SWPPP).
Access stands ready to assist you in determining applicability, sorting through permit requirements, and crafting a compliance plan.