nonas, nots, and other potential legal issues with new … · 2020-02-02 · nonas, nots, and other...

Melissa Thorme

September 23, 2015.

NONAs, NOTs, and

other Potential Legal

Issues with New

Industrial General

Storm Water Permit

• New Industrial General Stormwater Permit

(IGSWP) effective as of July 1, 2015.

• Brought in many light industries and other

businesses not previously covered.

• People may not want to have this coverage

because of:

• Additional regulation and scrutiny• Additional cost and reporting requirements• Potential enforcement by State and Regional Boards• Potential third party lawsuits under the Clean Water Act

• Are there options to allowing no coverage by

the IGSWP?

NONAs, NOTs and other IGSWP Issues

Melissa Thorme, Downey Brand

• Options for Not Having IGSWP Coverage:

1) Move to another state (different permit) or country2) Operate illegally if you discharge without permit coverage and

discharge directly or indirectly to waters of the United States3) Have coverage under another NPDES permit (individual or other

group permit, or construction permit for land disturbance activities)4) File a Notice of Non-Applicability (NONA)5) File a Notice of Termination (NOT)

• This presentation will discuss these options.



• Option 1 - Move to another state (different

permit) or country

• Many businesses are leaving California, or even the U.S., because of costly regulatory requirements.

• Not an option for all businesses.• If you move to another state, there are still regulatory requirements,

but most states have the Multi-Sector General Permit that has different requirements.

• Seeing less citizen suit activity in other states.

• Cost Benefit Analysis for each individual

entity.



• Option 2 - Operate illegally if you discharge

without permit coverage and discharge

directly or indirectly to Waters of the United

States (WOTUS)

• Not recommended.• Risk enforcement by the State or environmental groups for discharging without a

permit.• Can correct the violations by getting and complying with the IGSWP.• Cannot claim ignorance of the law because that knowledge is presumed even

though many companies will not be aware of the requirements.• Causes economic equity issues where some businesses are complying and

others are not – those complying are economically disadvantaged, which is unfair to those that comply.

• If you get caught, you will be given an order

to file a Notice of Intent (NOI) or a NONA.



WOTUS/“Navigable Waters”

Intermittent Streams Irrigation Canals

A recently designated

“Traditional Navigable Water”

• The “mighty” Los

Angeles River

• Who knew it meant

“navigable” by car??

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• Option 3 – Get/Have a different NPDES permit

• Instead of having coverage under the general permit, you can instead have your own individual permit.

• Benefit is getting site-specific requirements tailored to your industry, pollutants, and programs.

• Con is potentially greater scrutiny of your business practices and need to file a Report of Waste Discharge and get a new permit every 5 years.

• IGSWP was good for nearly 20 years with the need to just file a NOI.• Part of this consideration may be the Regional Water

Board you have to deal with, some easier than

others.

• If your discharges are truly benign, and you can

prove that, you might be eligible for coverage by a

low-threat discharge permit with less requirements.



• Option 4 – Get a NONA

• What is a NONA?

• Stands for Notice of Non-Applicability, which basically says the permit does not apply to you.

• Not an NPDES permit concept, this is a state-law concept adopted through Water Code section 13399.30 in the Storm Water Enforcement Act of 1998.

– Under this law, the regional boards are supposed to identify dischargers of storm water that have not obtained permit coverage.

– Must submit a NONA or NOI within 30 days of getting notice from the Water Board that they think coverage is required.

– Failure to comply results in a second notice and potential penalties of $1000 or $5000/year, plus enforcement staff costs.

– Only defense is not receiving notices.



• Who qualifies for a NONA?

• Discharges that do not enter waters of the United States.• If you have a surface discharge, may need a jurisdictional

determination from the U.S. Army Corps of Engineers.• New "Waters of the United States" definition applicable in

California, but enjoined in 13 states.• Uncertain future of the rule given legal challenges and potential

legislative changes if election changes Presidential party.• Not impossible, but may be difficult to prove.

• Also covers the following situations:• Discharges to sanitary sewers (requires a sewer use permit)• Discharges to combined sewer system (SF and downtown Sac)• Discharges to evaporation, percolation ponds (may need WDRs)• No Stormwater Discharges• Mining, oil and gas facilities, and Tribal facilities.



• "No Discharge" Eligibility Requirements

• If retaining water on site, must submit a NONA Technical Report signed by a California licensed professional engineer.

• Containment design must include: hydraulic calculations, soil permeability analysis, soil stability calculations, appropriate safety factors, application of general engineering principles.

• Pond sizing criteria must be based on maximum historic precipitation event (or series of events) data using NOAA rain gauge data or other government data (in addition to site rain gauge).

• At a minimum, must ensure containment of max 1-hour, 24-hour, weekly, monthly, and annual precipitation data (e.g., Ark storm)

• REQUIREMENT – No discharges based on historic data.

• If you cannot meet this, must apply for

IGSWP coverage…



• EXCEPTION - Unless you can demonstrate, as

attested to by a California licensed professional

engineer that site is located in basin or area not

hydrologically connected to waters of the U.S.

• Other Issues: The State Water Board's Office of Chief Counsel has stated that anyone contaminating groundwater because of infiltrated storm water can be prosecuted.

• May need to get baseline groundwater samples before using ponds.

• May need Waste Discharge Requirements (WDRs) if pollutants will be transferred to groundwater (and may need monitoring wells).

• Permit recommends consulting Water Board for infiltration design construction assistance.



• Option 5 - File a Notice of Termination (NOT)

• For entities permitted under previous permit that filed for an NOT before July 1, 2015 and receive NOT approval, those entities can not be covered by the IGSWP.

• Need a reason for the NOT (no discharge to WOTUS, closed facility, new owner/operator, non-applicability because operations changed)

• Requirements for an NOT:

• Certify and submit a NOT through SMARTS• Until a valid NOT received, discharger must pay annual fees and

comply with the IGSWP.• Additional information may be required as requested by the Regional

Board.• Once approved, no further compliance requirements. If denied

approval, must continue to comply under existing coverage.



Totally Confused Yet?

• Are there any other options besides full

permit compliance?

• Option 6 – No Exposure Certification (NEC)

– Like IGSWP "Light"– Can either file an NOI to get coverage under the IGSWP and then

transfer to NEC (without needing an NOT), OR

– Can register for NEC coverage by October 1, 2015 in SMARTS.

• Requirements:

• No exposure of industrial activities to storm water because in building or Storm-Resistant Shelter. Can qualify for NEC coverage even with metal buildings or structures

• Certify and submit Permit Documents through SMARTS.• Must re-evaluate, re-certify, and pay fee annually.



• Other NEC Requirements:

• Must maintain NEC evaluation records for five (5) years.• Must certify no non-storm water discharges (NSWDs) and no storm water

discharges exposed to industrial materials through industrial activities or industrial handling using NEC CHECKLIST.

• Definitions:

• Industrial Materials and Activities - Industrial Material handling, equipment, machinery, raw materials, intermediate products, by-products, final products, and waste products.

• Material Handling Activities – Storage, loading and unloading, transportation, or conveyance of any industrial raw material, intermediate product, final product, or waste product.

• Storm Resistant Shelters – completely roofed and walled buildings or structures, or roofed only with permanent supports but no side coverings only where material will not be blown or tracked out and no storm water gets in and can be discharged after contact with materials.



• Storm Resistant Shelters Not Required for:

• Drums, barrels, tanks and similar containers that are tightly sealed as long as in good shape and not leaking (TIP: recommend secondary containment too)

• Adequately maintained vehicles• Final products (unless they could be mobilized in storm water)• Protected by a temporary shelter for less than 90 days (where facility

undergoing construction or remodeling)• Where protected within secondary containment that will not

discharge to WOTUS.

• NEC Limitations:

• Must apply to entire facility (all drainage areas, not just part of site)• If industrial stormwater discharges occur, could be subject to

enforcement.• NEC coverage is discretionary and can be denied.



NEC Checklist:

• No using, storing, or cleaning industrial machinery and no residuals of same outside.

• No materials or residuals on ground or in storm inlets from spills/leaks.• No materials or products from past industrial activity.• No material handling equipment (except adequately maintained vehicles)• No loose materials or products during loading/unloading or transport.• No materials or products stored outside (except final products intended for outside

use (e.g., new cars) where exposure does not result in pollutant discharges.• No open, deteriorating or leaking storage drums, barrels, tanks, or containers.• No materials or products handled/stored on roads or railways owned/maintained by

Discharger.• No waste materials except in covered non-leaking containers (e.g., dumpsters)• No disposal of processed wastewater (unless covered by another NPDES permit)• No particulate matter or visible deposits of residuals from roof stacks/vents evident

in storm water outflow.



• If you can qualify after that NEC Checklist, then

you can get an NEC.

• Must recertify by October 1 of each year

• Must certify under penalty of perjury related to

the "condition of no exposure."

• REWARD: If you get NEC coverage – no longer

required to develop and implement a Storm

Water Pollution Prevention Plan (SWPPP),

monitor and sample, or report data.

• But, it is going to cost you an annual fee…



QUESTIONS??



Call or write me after the

presentation:

Melissa Thorme

Downey Brand LLP

621 Capitol Mall, 18th Fl,

Sacramento, CA 95814

(916) 520-5376

[email protected]

mailto:[email protected]