Page 155 - California Stormwater Workshop Handouts

Industrial General Permit Fact Sheet

emphasizes the authority of the Regional Water Boards over specific requirements of
this General Permit that do not meet region-specific water quality protection regulatory
needs.

S. Special Conditions: Requirements for Dischargers Claiming the “No Discharge”
Option in the Notice of Non-Applicability

1. General

Entities that operate facilities generating storm water associated with industrial
activities that is not discharged to waters of the United States are not required to
obtain General Permit coverage. Entities that have contacted the Water Boards to
inquire what is necessary to avoid permit coverage have received inconsistent
guidance. This has resulted in regulatory inconsistency and uncertainty as to
whether they are in compliance if their industry operates without General Permit
coverage. Depending upon how each Regional Water Board handles “No
Discharge” claims, some facilities with advanced containment design may be
required to obtain General Permit coverage while other facilities with less advanced
containment design may be allowed to operate without General Permit coverage.
Some stakeholders have complained that this type of regulatory inconsistency puts
some facilities at an economically-competitive disadvantage given the costs
associated with permit compliance.

U.S. EPA regulations do not provide a design standard, definition, or guidance as to
what constitutes “No Discharge.” Unlike Conditional Exclusion requirements,
U.S. EPA regulations do not require an entity to submit technical justification or
certification that a facility does not discharge to waters of the United States (U.S.).
Therefore entities have previously been allowed to self-determine that their facility
does not discharge to water of the U.S. when using any containment design
standard. The State Water Board does not have available information showing that
most entities have adequately performed hydraulic calculations to determine the
frequency of discharge corresponding to their containment controls or have had
these hydraulic calculations reviewed or completed by a California licensed
professional engineer. Although U.S. EPA makes clear that an unpermitted
discharge to waters of the U.S. is a violation of the CWA, this leaves regulatory
agencies with the very difficult task of knowing when any given facility discharges in
order to carry-out enforcement actions.

In 1998, the Water Code was amended to require entities who are requested by the
Water Boards to obtain General Permit coverage, but that have a valid reason to not
obtain General Permit coverage, to submit a Notice of Non-Applicability (NONA).
(Wat. Code, § 13399.30, subd. (a)(2)). The NONA covers multiple reasons why an
entity is not required to be permitted including (1) facility closure, (2) not the legal
owner, (3) incorrect SIC code, (4) eligibility for the Conditional Exclusion (No
Exposure Certification), and (5) the facility not discharging to water of the U.S. (“No
Discharge”). The previous permit contained definitions, requirements, and guidance
that entities may reference to determine whether they are eligible to select any of the
first four NONA reasons for not obtaining General Permit coverage. However,
neither the previous permit nor the Water Code provide definitions, requirements,

Order 2014-0057-DWQ 71