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Environmental Alert: Ohio EPA’s New Industrial Storm Water General Permit

The State of Ohio has issued the final version of its revised National Pollutant Discharge Elimination System (NPDES) Industrial Storm Water General Permit (http://www.epa.ohio.gov/dsw/permits/GP_IndustrialStormWater.aspx). This is the fifth version of the State’s general permit that governs storm water discharges from industrial facilities. Like its predecessors, this version of the permit requires parties seeking coverage to file a Notice of Intent with the Ohio EPA. And as with its predecessor version, this permit requires those parties seeking and obtaining its coverage to prepare and maintain a Storm Water Pollution Prevention Plan which describes the facility, the facility’s potential pollutant sources and the control measures the facility will take to prevent those potential pollutant sources from impairing water quality and storm water run-off. The new permit became effective on January 1, 2012. Those facilities having coverage under the prior version need not take immediate action to file a new Notice of Intent. Ohio EPA will be issuing to all facilities covered by the prior permit written instructions for the submittal of a new Notice of Intent for coverage under the new permit. Existing facilities must submit their Notice of Intent for coverage under the new permit within 90 days.

Like its predecessor, the new permit will have a term of five years. Where the new permit significantly differs from its predecessors, however, is that it contains specific benchmark monitoring concentration values (“benchmark values”) for specific industrial sectors. These benchmark values are not effluent limits. Exceedances of the new benchmark values are not in and of themselves violations. Rather, the benchmark values are intended to provide a means of determining whether control measures outlined in the Storm Water Pollution Prevention Plan are effective.

For the first three years of the new permit, the covered facility is required to sample, analyze and document storm water samples for four of the 12 seasonal quarters, with at least one sampling period required for each seasonal quarter. In the fourth year of the new permit, the monitoring data is averaged and measured against the benchmark concentration value to assess whether the control measures practiced at the facility are effective. If there is an exceedance of a benchmark value, then the facility is required to assess its control measures to determine where or how they fail in meeting the benchmark value. The facility is then required to adjust its control measures and Storm Water Pollution Prevention Plan to address the inadequacies determined in the review of the quarterly monitoring data.

As is the case with the Storm Water Pollution Prevention Plan under predecessor permits, the annual report summarizing the annual sampling for comparison with benchmark values must be retained, but need not be submitted to the Ohio EPA. However, failure to perform, document, assess and, if necessary, to respond to, the data required by mandatory annual sampling, can result in a determination of permit violations and subsequent enforcement action. The new permit does provide some relief from its requirements under extenuating circumstances. For instance, a facility may not have to make adjustments to its control measures when monitoring data indicates an exceedance of benchmark values if the facility can demonstrate that the exceedances are attributable to natural background levels of contaminants (such as naturally occurring high metal levels in soils), rather than pollutants from industrial activities. The new permit also allows a facility to conclude that benchmark values cannot be met despite the use of industrial recognized best management practices. Any facility reaching such a conclusion must document the reasoning for its conclusion in its Storm Water Pollution Prevention Plan and provide notification of this determination to Ohio EPA. As with prior versions of the permit, an industrial facility otherwise required to obtain coverage may obtain an exclusion from that requirement by submitting a No Exposure Certification on a form issued by Ohio EPA. In that form, the qualified facility official certifies that storm water is not impacted by activities or conditions at the facility.

Sectors of industrial activity subject to benchmark values sampling, monitoring and assessment include:

  • Timber products
  • Paper and allied products
  • Chemicals and allied products
  • Asphalt, paving and roofing materials and lubricants
  • Glass, clay, cement, concrete, and gypsum products
  • Primary metals
  • Oil and gas extraction and refining
  • Mineral, mining and dressing
  • Hazardous waste treatment, storage or disposal facilities
  • Closed landfills, land application sites and open dumps
  • Automobile salvage yards
  • Scrap recycling facilities
  • Steam electric generating facilities
  • Land transportation and warehousing
  • Water transportation
  • Ship and boat building and repairing yards
  • Air transportation facilities
  • Treatment works (for sewage)
  • Food and kindred products
  • Textile mills, apparel and other fabric product manufacturing; leather and leather products
  • Furniture and fixtures
  • Printing and publishing
  • Rubber, miscellaneous plastics products and miscellaneous manufacturing industries
  • Leather tanning and finishing
  • Fabricated metal products
  • Transportation equipment, industrial or commercial machinery
  • Electronic, electrical, photographic, and optical goods
  • Any other facility requiring permit coverage as determined by the Director of Ohio EPA

For more information, please contact:

Theodore J. Esborn
216.348.5735
tesborn@mcdonaldhopkins.com

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© 2012 McDonald Hopkins LLC All Rights Reserved. This Alert is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.