[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR122.26]
[Page 173-194]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM--Table of Contents
Subpart B_Permit Application and Special NPDES Program Requirements
Sec. 122.26 Storm water discharges (applicable to State NPDES programs,
see Sec. 123.25).
(a) Permit requirement. (1) Prior to October 1, 1994, discharges
composed entirely of storm water shall not be required to obtain a NPDES
permit except:
(i) A discharge with respect to which a permit has been issued prior
to February 4, 1987;
(ii) A discharge associated with industrial activity (see Sec.
122.26(a)(4));
(iii) A discharge from a large municipal separate storm sewer
system;
(iv) A discharge from a medium municipal separate storm sewer
system;
(v) A discharge which the Director, or in States with approved NPDES
programs, either the Director or the EPA Regional Administrator,
determines to contribute to a violation of a water quality standard or
is a significant contributor of pollutants to waters of the United
States. This designation may include a discharge from any conveyance or
system of conveyances used for collecting and conveying storm water
runoff or a system of discharges from municipal separate storm sewers,
except for those discharges from conveyances which do not require a
permit under paragraph (a)(2) of this section or agricultural storm
water runoff which is exempted from the definition of point source at
Sec. 122.2.
The Director may designate discharges from municipal separate storm
sewers on a system-wide or jurisdiction-wide basis. In making this
determination the Director may consider the following factors:
(A) The location of the discharge with respect to waters of the
United States as defined at 40 CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the pollutants discharged to waters
of the United States; and
(D) Other relevant factors.
[[Page 174]]
(2) The Director may not require a permit for discharges of storm
water runoff from the following:
(i) Mining operations composed entirely of flows which are from
conveyances or systems of conveyances (including but not limited to
pipes, conduits, ditches, and channels) used for collecting and
conveying precipitation runoff and which are not contaminated by contact
with or that have not come into contact with, any overburden, raw
material, intermediate products, finished product, byproduct, or waste
products located on the site of such operations, except in accordance
with paragraph (c)(1)(iv) of this section.
(ii) All field activities or operations associated with oil and gas
exploration, production, processing, or treatment operations or
transmission facilities, including activities necessary to prepare a
site for drilling and for the movement and placement of drilling
equipment, whether or not such field activities or operations may be
considered to be construction activities, except in accordance with
paragraph (c)(1)(iii) of this section. Discharges of sediment from
construction activities associated with oil and gas exploration,
production, processing, or treatment operations or transmission
facilities are not subject to the provisions of paragraph (c)(1)(iii)(C)
of this section.
Note to paragraph (a)(2)(ii): EPA encourages operators of oil and
gas field activities or operations to implement and maintain Best
Management Practices (BMPs) to minimize discharges of pollutants,
including sediment, in storm water both during and after construction
activities to help ensure protection of surface water quality during
storm events. Appropriate controls would be those suitable to the site
conditions and consistent with generally accepted engineering design
criteria and manufacturer specifications. Selection of BMPs could also
be affected by seasonal or climate conditions.
(3) Large and medium municipal separate storm sewer systems. (i)
Permits must be obtained for all discharges from large and medium
municipal separate storm sewer systems.
(ii) The Director may either issue one system-wide permit covering
all discharges from municipal separate storm sewers within a large or
medium municipal storm sewer system or issue distinct permits for
appropriate categories of discharges within a large or medium municipal
separate storm sewer system including, but not limited to: all
discharges owned or operated by the same municipality; located within
the same jurisdiction; all discharges within a system that discharge to
the same watershed; discharges within a system that are similar in
nature; or for individual discharges from municipal separate storm
sewers within the system.
(iii) The operator of a discharge from a municipal separate storm
sewer which is part of a large or medium municipal separate storm sewer
system must either:
(A) Participate in a permit application (to be a permittee or a co-
permittee) with one or more other operators of discharges from the large
or medium municipal storm sewer system which covers all, or a portion of
all, discharges from the municipal separate storm sewer system;
(B) Submit a distinct permit application which only covers
discharges from the municipal separate storm sewers for which the
operator is responsible; or
(C) A regional authority may be responsible for submitting a permit
application under the following guidelines:
(1) The regional authority together with co-applicants shall have
authority over a storm water management program that is in existence, or
shall be in existence at the time part 1 of the application is due;
(2) The permit applicant or co-applicants shall establish their
ability to make a timely submission of part 1 and part 2 of the
municipal application;
(3) Each of the operators of municipal separate storm sewers within
the systems described in paragraphs (b)(4) (i), (ii), and (iii) or
(b)(7) (i), (ii), and (iii) of this section, that are under the purview
of the designated regional authority, shall comply with the application
requirements of paragraph (d) of this section.
(iv) One permit application may be submitted for all or a portion of
all municipal separate storm sewers within adjacent or interconnected
large or medium municipal separate storm sewer systems. The Director may
issue one system-wide permit covering all,
[[Page 175]]
or a portion of all municipal separate storm sewers in adjacent or
interconnected large or medium municipal separate storm sewer systems.
(v) Permits for all or a portion of all discharges from large or
medium municipal separate storm sewer systems that are issued on a
system-wide, jurisdiction-wide, watershed or other basis may specify
different conditions relating to different discharges covered by the
permit, including different management programs for different drainage
areas which contribute storm water to the system.
(vi) Co-permittees need only comply with permit conditions relating
to discharges from the municipal separate storm sewers for which they
are operators.
(4) Discharges through large and medium municipal separate storm
sewer systems. In addition to meeting the requirements of paragraph (c)
of this section, an operator of a storm water discharge associated with
industrial activity which discharges through a large or medium municipal
separate storm sewer system shall submit, to the operator of the
municipal separate storm sewer system receiving the discharge no later
than May 15, 1991, or 180 days prior to commencing such discharge: the
name of the facility; a contact person and phone number; the location of
the discharge; a description, including Standard Industrial
Classification, which best reflects the principal products or services
provided by each facility; and any existing NPDES permit number.
(5) Other municipal separate storm sewers. The Director may issue
permits for municipal separate storm sewers that are designated under
paragraph (a)(1)(v) of this section on a system-wide basis,
jurisdiction-wide basis, watershed basis or other appropriate basis, or
may issue permits for individual discharges.
(6) Non-municipal separate storm sewers. For storm water discharges
associated with industrial activity from point sources which discharge
through a non-municipal or non-publicly owned separate storm sewer
system, the Director, in his discretion, may issue: a single NPDES
permit, with each discharger a co-permittee to a permit issued to the
operator of the portion of the system that discharges into waters of the
United States; or, individual permits to each discharger of storm water
associated with industrial activity through the non-municipal conveyance
system.
(i) All storm water discharges associated with industrial activity
that discharge through a storm water discharge system that is not a
municipal separate storm sewer must be covered by an individual permit,
or a permit issued to the operator of the portion of the system that
discharges to waters of the United States, with each discharger to the
non-municipal conveyance a co-permittee to that permit.
(ii) Where there is more than one operator of a single system of
such conveyances, all operators of storm water discharges associated
with industrial activity must submit applications.
(iii) Any permit covering more than one operator shall identify the
effluent limitations, or other permit conditions, if any, that apply to
each operator.
(7) Combined sewer systems. Conveyances that discharge storm water
runoff combined with municipal sewage are point sources that must obtain
NPDES permits in accordance with the procedures of Sec. 122.21 and are
not subject to the provisions of this section.
(8) Whether a discharge from a municipal separate storm sewer is or
is not subject to regulation under this section shall have no bearing on
whether the owner or operator of the discharge is eligible for funding
under title II, title III or title VI of the Clean Water Act. See 40 CFR
part 35, subpart I, appendix A(b)H.2.j.
(9)(i) On and after October 1, 1994, for discharges composed
entirely of storm water, that are not required by paragraph (a)(1) of
this section to obtain a permit, operators shall be required to obtain a
NPDES permit only if:
(A) The discharge is from a small MS4 required to be regulated
pursuant to Sec. 122.32;
(B) The discharge is a storm water discharge associated with small
construction activity pursuant to paragraph (b)(15) of this section;
(C) The Director, or in States with approved NPDES programs either
the
[[Page 176]]
Director or the EPA Regional Administrator, determines that storm water
controls are needed for the discharge based on wasteload allocations
that are part of ``total maximum daily loads'' (TMDLs) that address the
pollutant(s) of concern; or
(D) The Director, or in States with approved NPDES programs either
the Director or the EPA Regional Administrator, determines that the
discharge, or category of discharges within a geographic area,
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.
(ii) Operators of small MS4s designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek
coverage under an NPDES permit in accordance with Sec. Sec. 122.33
through 122.35. Operators of non-municipal sources designated pursuant
to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this
section shall seek coverage under an NPDES permit in accordance with
paragraph (c)(1) of this section.
(iii) Operators of storm water discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to
the Director for a permit within 180 days of receipt of notice, unless
permission for a later date is granted by the Director (see Sec.
124.52(c) of this chapter).
(b) Definitions. (1) Co-permittee means a permittee to a NPDES
permit that is only responsible for permit conditions relating to the
discharge for which it is operator.
(2) Illicit discharge means any discharge to a municipal separate
storm sewer that is not composed entirely of storm water except
discharges pursuant to a NPDES permit (other than the NPDES permit for
discharges from the municipal separate storm sewer) and discharges
resulting from fire fighting activities.
(3) Incorporated place means the District of Columbia, or a city,
town, township, or village that is incorporated under the laws of the
State in which it is located.
(4) Large municipal separate storm sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place with a population of 250,000 or
more as determined by the 1990 Decennial Census by the Bureau of the
Census (Appendix F of this part); or
(ii) Located in the counties listed in appendix H, except municipal
separate storm sewers that are located in the incorporated places,
townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described
in paragraph (b)(4) (i) or (ii) of this section and that are designated
by the Director as part of the large or medium municipal separate storm
sewer system due to the interrelationship between the discharges of the
designated storm sewer and the discharges from municipal separate storm
sewers described under paragraph (b)(4) (i) or (ii) of this section. In
making this determination the Director may consider the following
factors:
(A) Physical interconnections between the municipal separate storm
sewers;
(B) The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate
storm sewers described in paragraph (b)(4)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of
the United States;
(D) The nature of the receiving waters; and
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a large municipal
separate storm sewer system, municipal separate storm sewers located
within the boundaries of a region defined by a storm water management
regional authority based on a jurisdictional, watershed, or other
appropriate basis that includes one or more of the systems described in
paragraph (b)(4) (i), (ii), (iii) of this section.
(5) Major municipal separate storm sewer outfall (or ``major
outfall'') means a municipal separate storm sewer outfall that
discharges from a single pipe with an inside diameter of 36 inches or
more or its equivalent (discharge from a single conveyance other than
circular pipe which is associated with a drainage area of more than 50
acres); or for
[[Page 177]]
municipal separate storm sewers that receive storm water from lands
zoned for industrial activity (based on comprehensive zoning plans or
the equivalent), an outfall that discharges from a single pipe with an
inside diameter of 12 inches or more or from its equivalent (discharge
from other than a circular pipe associated with a drainage area of 2
acres or more).
(6) Major outfall means a major municipal separate storm sewer
outfall.
(7) Medium municipal separate storm sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place with a population of 100,000 or
more but less than 250,000, as determined by the 1990 Decennial Census
by the Bureau of the Census (Appendix G of this part); or
(ii) Located in the counties listed in appendix I, except municipal
separate storm sewers that are located in the incorporated places,
townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described
in paragraph (b)(7) (i) or (ii) of this section and that are designated
by the Director as part of the large or medium municipal separate storm
sewer system due to the interrelationship between the discharges of the
designated storm sewer and the discharges from municipal separate storm
sewers described under paragraph (b)(7) (i) or (ii) of this section. In
making this determination the Director may consider the following
factors:
(A) Physical interconnections between the municipal separate storm
sewers;
(B) The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate
storm sewers described in paragraph (b)(7)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of
the United States;
(D) The nature of the receiving waters; or
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a medium
municipal separate storm sewer system, municipal separate storm sewers
located within the boundaries of a region defined by a storm water
management regional authority based on a jurisdictional, watershed, or
other appropriate basis that includes one or more of the systems
described in paragraphs (b)(7) (i), (ii), (iii) of this section.
(8) Municipal separate storm sewer means a conveyance or system of
conveyances (including roads with drainage systems, municipal streets,
catch basins, curbs, gutters, ditches, man-made channels, or storm
drains):
(i) Owned or operated by a State, city, town, borough, county,
parish, district, association, or other public body (created by or
pursuant to State law) having jurisdiction over disposal of sewage,
industrial wastes, storm water, or other wastes, including special
districts under State law such as a sewer district, flood control
district or drainage district, or similar entity, or an Indian tribe or
an authorized Indian tribal organization, or a designated and approved
management agency under section 208 of the CWA that discharges to waters
of the United States;
(ii) Designed or used for collecting or conveying storm water;
(iii) Which is not a combined sewer; and
(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as
defined at 40 CFR 122.2.
(9) Outfall means a point source as defined by 40 CFR 122.2 at the
point where a municipal separate storm sewer discharges to waters of the
United States and does not include open conveyances connecting two
municipal separate storm sewers, or pipes, tunnels or other conveyances
which connect segments of the same stream or other waters of the United
States and are used to convey waters of the United States.
(10) Overburden means any material of any nature, consolidated or
unconsolidated, that overlies a mineral deposit, excluding topsoil or
similar naturally-occurring surface materials that are not disturbed by
mining operations.
(11) Runoff coefficient means the fraction of total rainfall that
will appear at a conveyance as runoff.
(12) Significant materials includes, but is not limited to: raw
materials; fuels; materials such as solvents, detergents, and plastic
pellets; finished materials
[[Page 178]]
such as metallic products; raw materials used in food processing or
production; hazardous substances designated under section 101(14) of
CERCLA; any chemical the facility is required to report pursuant to
section 313 of title III of SARA; fertilizers; pesticides; and waste
products such as ashes, slag and sludge that have the potential to be
released with storm water discharges.
(13) Storm water means storm water runoff, snow melt runoff, and
surface runoff and drainage.
(14) Storm water discharge associated with industrial activity means
the discharge from any conveyance that is used for collecting and
conveying storm water and that is directly related to manufacturing,
processing or raw materials storage areas at an industrial plant. The
term does not include discharges from facilities or activities excluded
from the NPDES program under this part 122. For the categories of
industries identified in this section, the term includes, but is not
limited to, storm water 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 (as
defined at part 401 of this chapter); sites used for the storage and
maintenance of material handling equipment; sites used for residual
treatment, storage, or disposal; 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 storm water. For the purposes of
this paragraph, material handling activities include storage, loading
and unloading, transportation, or conveyance of any raw material,
intermediate product, final product, by-product or waste product. The
term excludes areas located on plant lands separate from the plant's
industrial activities, such as office buildings and accompanying parking
lots as long as the drainage from the excluded areas is not mixed with
storm water drained from the above described areas. Industrial
facilities (including industrial facilities that are federally, State,
or municipally owned or operated that meet the description of the
facilities listed in paragraphs (b)(14)(i) through (xi) of this section)
include those facilities designated under the provisions of paragraph
(a)(1)(v) of this section. The following categories of facilities are
considered to be engaging in ``industrial activity'' for purposes of
paragraph (b)(14):
(i) Facilities subject to storm water effluent limitations
guidelines, new source performance standards, or toxic pollutant
effluent standards under 40 CFR subchapter N (except facilities with
toxic pollutant effluent standards which are exempted under category
(xi) in paragraph (b)(14) of this section);
(ii) Facilities classified as Standard Industrial Classifications 24
(except 2434), 26 (except 265 and 267), 28 (except 283), 29, 31l, 32
(except 323), 33, 344l, 373;
(iii) Facilities classified as Standard Industrial Classifications
10 through 14 (mineral industry) including active or inactive mining
operations (except for areas of coal mining operations no longer meeting
the definition of a reclamation area under 40 CFR 434.11(1) because the
performance bond issued to the facility by the appropriate SMCRA
authority has been released, or except for areas of non-coal mining
operations which have been released from applicable State or Federal
reclamation requirements after December 17, 1990) and oil and gas
exploration, production, processing, or treatment operations, or
transmission facilities that discharge storm water contaminated by
contact with or that has come into contact with, any overburden, raw
material, intermediate products, finished products, byproducts or waste
products located on the site of such operations; (inactive mining
operations are mining sites that are not being actively mined, but which
have an identifiable owner/operator; inactive mining sites do not
include sites where mining claims are being maintained prior to
disturbances associated with the extraction, beneficiation, or
processing of mined materials, nor sites where minimal activities are
undertaken for the sole
[[Page 179]]
purpose of maintaining a mining claim);
(iv) Hazardous waste treatment, storage, or disposal facilities,
including those that are operating under interim status or a permit
under subtitle C of RCRA;
(v) Landfills, land application sites, and open dumps that receive
or have received any industrial wastes (waste that is received from any
of the facilities described under this subsection) including those that
are subject to regulation under subtitle D of RCRA;
(vi) Facilities involved in the recycling of materials, including
metal scrapyards, battery reclaimers, salvage yards, and automobile
junkyards, including but limited to those classified as Standard
Industrial Classification 5015 and 5093;
(vii) Steam electric power generating facilities, including coal
handling sites;
(viii) Transportation facilities classified as Standard Industrial
Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which
have vehicle maintenance shops, equipment cleaning operations, or
airport deicing operations. Only those portions of the facility that are
either involved in vehicle maintenance (including vehicle
rehabilitation, mechanical repairs, painting, fueling, and lubrication),
equipment cleaning operations, airport deicing operations, or which are
otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of
this section are associated with industrial activity;
(ix) Treatment works treating domestic sewage or any other sewage
sludge or wastewater treatment device or system, used in the storage
treatment, recycling, and reclamation of municipal or domestic sewage,
including land dedicated to the disposal of sewage sludge that are
located within the confines of the facility, with a design flow of 1.0
mgd or more, or required to have an approved pretreatment program under
40 CFR part 403. Not included are farm lands, domestic gardens or lands
used for sludge management where sludge is beneficially reused and which
are not physically located in the confines of the facility, or areas
that are in compliance with section 405 of the CWA;
(x) Construction activity including clearing, grading and
excavation, except operations that result in the disturbance of less
than five acres of total land area. Construction activity also includes
the disturbance of less than five acres of total land area that is a
part of a larger common plan of development or sale if the larger common
plan will ultimately disturb five acres or more;
(xi) Facilities under Standard Industrial Classifications 20, 21,
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
(15) Storm water discharge associated with small construction
activity means the discharge of storm water from:
(i) Construction activities including clearing, grading, and
excavating that result in land disturbance of equal to or greater than
one acre and less than five acres. Small construction activity also
includes the disturbance of less than one acre of total land area that
is part of a larger common plan of development or sale if the larger
common plan will ultimately disturb equal to or greater than one and
less than five acres. Small construction activity does not include
routine maintenance that is performed to maintain the original line and
grade, hydraulic capacity, or original purpose of the facility. The
Director may waive the otherwise applicable requirements in a general
permit for a storm water discharge from construction activities that
disturb less than five acres where:
(A) The value of the rainfall erosivity factor (``R'' in the Revised
Universal Soil Loss Equation) is less than five during the period of
construction activity. The rainfall erosivity factor is determined in
accordance with Chapter 2 of Agriculture Handbook Number 703, Predicting
Soil Erosion by Water: A Guide to Conservation Planning With the Revised
Universal Soil Loss Equation (RUSLE), pages 21-64, dated January 1997.
The Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C 552(a) and 1 CFR part 51. Copies
may be obtained from EPA's Water Resource Center, Mail Code RC4100, 401
M St. SW, Washington, DC 20460. A copy is also available for inspection
at the U.S.
[[Page 180]]
EPA Water Docket , 401 M Street SW, Washington, DC 20460, or at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. An operator must certify to the
Director that the construction activity will take place during a period
when the value of the rainfall erosivity factor is less than five; or
(B) Storm water controls are not needed based on a ``total maximum
daily load'' (TMDL) approved or established by EPA that addresses the
pollutant(s) of concern or, for non-impaired waters that do not require
TMDLs, an equivalent analysis that determines allocations for small
construction sites for the pollutant(s) of concern or that determines
that such allocations are not needed to protect water quality based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety. For
the purpose of this paragraph, the pollutant(s) of concern include
sediment or a parameter that addresses sediment (such as total suspended
solids, turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. The operator must certify to
the Director that the construction activity will take place, and storm
water discharges will occur, within the drainage area addressed by the
TMDL or equivalent analysis.
(ii) Any other construction activity designated by the Director, or
in States with approved NPDES programs either the Director or the EPA
Regional Administrator, based on the potential for contribution to a
violation of a water quality standard or for significant contribution of
pollutants to waters of the United States.
Exhibit 1 to Sec. 122.26(b)(15)--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
Storm Water Program
------------------------------------------------------------------------
------------------------------------------------------------------------
Automatic Designation: Construction
Required Nationwide Coverage. activities that result in a land
disturbance of equal to or greater than
one acre and less than five acres.
Construction
activities disturbing less than one acre
if part of a larger common plan of
development or sale with a planned
disturbance of equal to or greater than
one acre and less than five acres. (see
Sec. 122.26(b)(15)(i).)
Potential Designation: Construction
Optional Evaluation and activities that result in a land
Designation by the NPDES disturbance of less than one acre based
Permitting Authority or EPA on the potential for contribution to a
Regional Administrator. violation of a water quality standard or
for significant contribution of
pollutants. (see Sec.
122.26(b)(15)(ii).)
Potential Waiver: Waiver from Any automatically designated construction
Requirements as Determined activity where the operator certifies:
by the NPDES Permitting (1) A rainfall erosivity factor of less
Authority.. than five, or (2) That the activity will
occur within an area where controls are
not needed based on a TMDL or, for non-
impaired waters that do not require a
TMDL, an equivalent analysis for the
pollutant(s) of concern. (see Sec.
122.26(b)(15)(i).)
------------------------------------------------------------------------
(16) Small municipal separate storm sewer system means all separate
storm sewers that are:
(i) Owned or operated by the United States, a State, city, town,
borough, county, parish, district, association, or other public body
(created by or pursuant to State law) having jurisdiction over disposal
of sewage, industrial wastes, storm water, or other wastes, including
special districts under State law such as a sewer district, flood
control district or drainage district, or similar entity, or an Indian
tribe or an authorized Indian tribal organization, or a designated and
approved management agency under section 208 of the CWA that discharges
to waters of the United States.
(ii) Not defined as ``large'' or ``medium'' municipal separate storm
sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section,
or designated
[[Page 181]]
under paragraph (a)(1)(v) of this section.
(iii) This term includes systems similar to separate storm sewer
systems in municipalities, such as systems at military bases, large
hospital or prison complexes, and highways and other thoroughfares. The
term does not include separate storm sewers in very discrete areas, such
as individual buildings.
(17) Small MS4 means a small municipal separate storm sewer system.
(18) Municipal separate storm sewer system means all separate storm
sewers that are defined as ``large'' or ``medium'' or ``small''
municipal separate storm sewer systems pursuant to paragraphs (b)(4),
(b)(7), and (b)(16) of this section, or designated under paragraph
(a)(1)(v) of this section.
(19) MS4 means a municipal separate storm sewer system.
(20) Uncontrolled sanitary landfill means a landill or open dump,
whether in operation or closed, that does not meet the requirements for
runon or runoff controls established pursuant to subtitle D of the Solid
Waste Disposal Act.
(c) Application requirements for storm water discharges associated
with industrial activity and storm water discharges associated with
small construction activity--(1) Individual application. Dischargers of
storm water associated with industrial activity and with small
construction activity are required to apply for an individual permit or
seek coverage under a promulgated storm water general permit. Facilities
that are required to obtain an individual permit or any dischage of
storm water which the Director is evaluating for designation (see Sec.
124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and
is not a municipal storm sewer, shall submit an NPDES application in
accordance with the requirements of Sec. 122.21 as modified and
supplemented by the provisions of this paragraph.
(i) Except as provided in Sec. 122.26(c)(1) (ii)-(iv), the operator
of a storm water discharge associated with industrial activity subject
to this section shall provide:
(A) A site map showing topography (or indicating the outline of
drainage areas served by the outfall(s) covered in the application if a
topographic map is unavailable) of the facility including: each of its
drainage and discharge structures; the drainage area of each storm water
outfall; paved areas and buildings within the drainage area of each
storm water outfall, each past or present area used for outdoor storage
or disposal of significant materials, each existing structural control
measure to reduce pollutants in storm water runoff, materials loading
and access areas, areas where pesticides, herbicides, soil conditioners
and fertilizers are applied, each of its hazardous waste treatment,
storage or disposal facilities (including each area not required to have
a RCRA permit which is used for accumulating hazardous waste under 40
CFR 262.34); each well where fluids from the facility are injected
underground; springs, and other surface water bodies which receive storm
water discharges from the facility;
(B) An estimate of the area of impervious surfaces (including paved
areas and building roofs) and the total area drained by each outfall
(within a mile radius of the facility) and a narrative description of
the following: Significant materials that in the three years prior to
the submittal of this application have been treated, stored or disposed
in a manner to allow exposure to storm water; method of treatment,
storage or disposal of such materials; materials management practices
employed, in the three years prior to the submittal of this application,
to minimize contact by these materials with storm water runoff;
materials loading and access areas; the location, manner and frequency
in which pesticides, herbicides, soil conditioners and fertilizers are
applied; the location and a description of existing structural and non-
structural control measures to reduce pollutants in storm water runoff;
and a description of the treatment the storm water receives, including
the ultimate disposal of any solid or fluid wastes other than by
discharge;
(C) A certification that all outfalls that should contain storm
water discharges associated with industrial activity have been tested or
evaluated for the presence of non-storm water discharges which are not
covered by a
[[Page 182]]
NPDES permit; tests for such non-storm water discharges may include
smoke tests, fluorometric dye tests, analysis of accurate schematics, as
well as other appropriate tests. The certification shall include a
description of the method used, the date of any testing, and the on-site
drainage points that were directly observed during a test;
(D) Existing information regarding significant leaks or spills of
toxic or hazardous pollutants at the facility that have taken place
within the three years prior to the submittal of this application;
(E) Quantitative data based on samples collected during storm events
and collected in accordance with Sec. 122.21 of this part from all
outfalls containing a storm water discharge associated with industrial
activity for the following parameters:
(1) Any pollutant limited in an effluent guideline to which the
facility is subject;
(2) Any pollutant listed in the facility's NPDES permit for its
process wastewater (if the facility is operating under an existing NPDES
permit);
(3) Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total
Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
(4) Any information on the discharge required under Sec.
122.21(g)(7)(vi) and (vii);
(5) Flow measurements or estimates of the flow rate, and the total
amount of discharge for the storm event(s) sampled, and the method of
flow measurement or estimation; and
(6) The date and duration (in hours) of the storm event(s) sampled,
rainfall measurements or estimates of the storm event (in inches) which
generated the sampled runoff and the duration between the storm event
sampled and the end of the previous measurable (greater than 0.1 inch
rainfall) storm event (in hours);
(F) Operators of a discharge which is composed entirely of storm
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3),
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii);
and
(G) Operators of new sources or new discharges (as defined in Sec.
122.2 of this part) which are composed in part or entirely of storm
water must include estimates for the pollutants or parameters listed in
paragraph (c)(1)(i)(E) of this section instead of actual sampling data,
along with the source of each estimate. Operators of new sources or new
discharges composed in part or entirely of storm water must provide
quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of
this section within two years after commencement of discharge, unless
such data has already been reported under the monitoring requirements of
the NPDES permit for the discharge. Operators of a new source or new
discharge which is composed entirely of storm water are exempt from the
requirements of Sec. 122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).
(ii) An operator of an existing or new storm water discharge that is
associated with industrial activity solely under paragraph (b)(14)(x) of
this section or is associated with small construction activity solely
under paragraph (b)(15) of this section, is exempt from the requirements
of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. Such
operator shall provide a narrative description of:
(A) The location (including a map) and the nature of the
construction activity;
(B) The total area of the site and the area of the site that is
expected to undergo excavation during the life of the permit;
(C) Proposed measures, including best management practices, to
control pollutants in storm water discharges during construction,
including a brief description of applicable State and local erosion and
sediment control requirements;
(D) Proposed measures to control pollutants in storm water
discharges that will occur after construction operations have been
completed, including a brief description of applicable State or local
erosion and sediment control requirements;
(E) An estimate of the runoff coefficient of the site and the
increase in impervious area after the construction addressed in the
permit application is completed, the nature of fill material
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and existing data describing the soil or the quality of the discharge;
and
(F) The name of the receiving water.
(iii) The operator of an existing or new discharge composed entirely
of storm water from an oil or gas exploration, production, processing,
or treatment operation, or transmission facility is not required to
submit a permit application in accordance with paragraph (c)(1)(i) of
this section, unless the facility:
(A) Has had a discharge of storm water resulting in the discharge of
a reportable quantity for which notification is or was required pursuant
to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
(B) Has had a discharge of storm water resulting in the discharge of
a reportable quantity for which notification is or was required pursuant
to 40 CFR 110.6 at any time since November 16, 1987; or
(C) Contributes to a violation of a water quality standard.
(iv) The operator of an existing or new discharge composed entirely
of storm water from a mining operation is not required to submit a
permit application unless the discharge has come into contact with, any
overburden, raw material, intermediate products, finished product,
byproduct or waste products located on the site of such operations.
(v) Applicants shall provide such other information the Director may
reasonably require under Sec. 122.21(g)(13) of this part to determine
whether to issue a permit and may require any facility subject to
paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i)
of this section.
(2) [Reserved]
(d) Application requirements for large and medium municipal separate
storm sewer discharges. The operator of a discharge from a large or
medium municipal separate storm sewer or a municipal separate storm
sewer that is designated by the Director under paragraph (a)(1)(v) of
this section, may submit a jurisdiction-wide or system-wide permit
application. Where more than one public entity owns or operates a
municipal separate storm sewer within a geographic area (including
adjacent or interconnected municipal separate storm sewer systems), such
operators may be a coapplicant to the same application. Permit
applications for discharges from large and medium municipal storm sewers
or municipal storm sewers designated under paragraph (a)(1)(v) of this
section shall include;
(1) Part 1. Part 1 of the application shall consist of;
(i) General information. The applicants' name, address, telephone
number of contact person, ownership status and status as a State or
local government entity.
(ii) Legal authority. A description of existing legal authority to
control discharges to the municipal separate storm sewer system. When
existing legal authority is not sufficient to meet the criteria provided
in paragraph (d)(2)(i) of this section, the description shall list
additional authorities as will be necessary to meet the criteria and
shall include a schedule and commitment to seek such additional
authority that will be needed to meet the criteria.
(iii) Source identification. (A) A description of the historic use
of ordinances, guidance or other controls which limited the discharge of
non-storm water discharges to any Publicly Owned Treatment Works serving
the same area as the municipal separate storm sewer system.
(B) A USGS 7.5 minute topographic map (or equivalent topographic map
with a scale between 1:10,000 and 1:24,000 if cost effective) extending
one mile beyond the service boundaries of the municipal storm sewer
system covered by the permit application. The following information
shall be provided:
(1) The location of known municipal storm sewer system outfalls
discharging to waters of the United States;
(2) A description of the land use activities (e.g. divisions
indicating undeveloped, residential, commercial, agricultural and
industrial uses) accompanied with estimates of population densities and
projected growth for a ten year period within the drainage area served
by the separate storm sewer. For each land use type, an estimate of an
average runoff coefficient shall be provided;
[[Page 184]]
(3) The location and a description of the activities of the facility
of each currently operating or closed municipal landfill or other
treatment, storage or disposal facility for municipal waste;
(4) The location and the permit number of any known discharge to the
municipal storm sewer that has been issued a NPDES permit;
(5) The location of major structural controls for storm water
discharge (retention basins, detention basins, major infiltration
devices, etc.); and
(6) The identification of publicly owned parks, recreational areas,
and other open lands.
(iv) Discharge characterization. (A) Monthly mean rain and snow fall
estimates (or summary of weather bureau data) and the monthly average
number of storm events.
(B) Existing quantitative data describing the volume and quality of
discharges from the municipal storm sewer, including a description of
the outfalls sampled, sampling procedures and analytical methods used.
(C) A list of water bodies that receive discharges from the
municipal separate storm sewer system, including downstream segments,
lakes and estuaries, where pollutants from the system discharges may
accumulate and cause water degradation and a brief description of known
water quality impacts. At a minimum, the description of impacts shall
include a description of whether the water bodies receiving such
discharges have been:
(1) Assessed and reported in section 305(b) reports submitted by the
State, the basis for the assessment (evaluated or monitored), a summary
of designated use support and attainment of Clean Water Act (CWA) goals
(fishable and swimmable waters), and causes of nonsupport of designated
uses;
(2) Listed under section 304(l)(1)(A)(i), section 304(l)(1)(A)(ii),
or section 304(l)(1)(B) of the CWA that is not expected to meet water
quality standards or water quality goals;
(3) Listed in State Nonpoint Source Assessments required by section
319(a) of the CWA that, without additional action to control nonpoint
sources of pollution, cannot reasonably be expected to attain or
maintain water quality standards due to storm sewers, construction,
highway maintenance and runoff from municipal landfills and municipal
sludge adding significant pollution (or contributing to a violation of
water quality standards);
(4) Identified and classified according to eutrophic condition of
publicly owned lakes listed in State reports required under section
314(a) of the CWA (include the following: A description of those
publicly owned lakes for which uses are known to be impaired; a
description of procedures, processes and methods to control the
discharge of pollutants from municipal separate storm sewers into such
lakes; and a description of methods and procedures to restore the
quality of such lakes);
(5) Areas of concern of the Great Lakes identified by the
International Joint Commission;
(6) Designated estuaries under the National Estuary Program under
section 320 of the CWA;
(7) Recognized by the applicant as highly valued or sensitive
waters;
(8) Defined by the State or U.S. Fish and Wildlife Services's
National Wetlands Inventory as wetlands; and
(9) Found to have pollutants in bottom sediments, fish tissue or
biosurvey data.
(D) Field screening. Results of a field screening analysis for
illicit connections and illegal dumping for either selected field
screening points or major outfalls covered in the permit application. At
a minimum, a screening analysis shall include a narrative description,
for either each field screening point or major outfall, of visual
observations made during dry weather periods. If any flow is observed,
two grab samples shall be collected during a 24 hour period with a
minimum period of four hours between samples. For all such samples, a
narrative description of the color, odor, turbidity, the presence of an
oil sheen or surface scum as well as any other relevant observations
regarding the potential presence of non-storm water discharges or
illegal dumping shall be provided. In addition, a narrative description
of the results of a field analysis using suitable methods to estimate
pH, total chlorine, total copper, total phenol, and detergents (or
surfactants) shall be provided along
[[Page 185]]
with a description of the flow rate. Where the field analysis does not
involve analytical methods approved under 40 CFR part 136, the applicant
shall provide a description of the method used including the name of the
manufacturer of the test method along with the range and accuracy of the
test. Field screening points shall be either major outfalls or other
outfall points (or any other point of access such as manholes) randomly
located throughout the storm sewer system by placing a grid over a
drainage system map and identifying those cells of the grid which
contain a segment of the storm sewer system or major outfall. The field
screening points shall be established using the following guidelines and
criteria:
(1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ mile apart shall be overlayed on a map of the
municipal storm sewer system, creating a series of cells;
(2) All cells that contain a segment of the storm sewer system shall
be identified; one field screening point shall be selected in each cell;
major outfalls may be used as field screening points;
(3) Field screening points should be located downstream of any
sources of suspected illegal or illicit activity;
(4) Field screening points shall be located to the degree
practicable at the farthest manhole or other accessible location
downstream in the system, within each cell; however, safety of personnel
and accessibility of the location should be considered in making this
determination;
(5) Hydrological conditions; total drainage area of the site;
population density of the site; traffic density; age of the structures
or buildings in the area; history of the area; and land use types;
(6) For medium municipal separate storm sewer systems, no more than
250 cells need to have identified field screening points; in large
municipal separate storm sewer systems, no more than 500 cells need to
have identified field screening points; cells established by the grid
that contain no storm sewer segments will be eliminated from
consideration; if fewer than 250 cells in medium municipal sewers are
created, and fewer than 500 in large systems are created by the overlay
on the municipal sewer map, then all those cells which contain a segment
of the sewer system shall be subject to field screening (unless access
to the separate storm sewer system is impossible); and
(7) Large or medium municipal separate storm sewer systems which are
unable to utilize the procedures described in paragraphs (d)(1)(iv)(D)
(1) through (6) of this section, because a sufficiently detailed map of
the separate storm sewer systems is unavailable, shall field screen no
more than 500 or 250 major outfalls respectively (or all major outfalls
in the system, if less); in such circumstances, the applicant shall
establish a grid system consisting of north-south and east-west lines
spaced \1/4\ mile apart as an overlay to the boundaries of the municipal
storm sewer system, thereby creating a series of cells; the applicant
will then select major outfalls in as many cells as possible until at
least 500 major outfalls (large municipalities) or 250 major outfalls
(medium municipalities) are selected; a field screening analysis shall
be undertaken at these major outfalls.
(E) Characterization plan. Information and a proposed program to
meet the requirements of paragraph (d)(2)(iii) of this section. Such
description shall include: the location of outfalls or field screening
points appropriate for representative data collection under paragraph
(d)(2)(iii)(A) of this section, a description of why the outfall or
field screening point is representative, the seasons during which
sampling is intended, a description of the sampling equipment. The
proposed location of outfalls or field screening points for such
sampling should reflect water quality concerns (see paragraph
(d)(1)(iv)(C) of this section) to the extent practicable.
(v) Management programs. (A) A description of the existing
management programs to control pollutants from the municipal separate
storm sewer system. The description shall provide information on
existing structural and source controls, including operation and
maintenance measures for structural controls, that are currently being
[[Page 186]]
implemented. Such controls may include, but are not limited to:
Procedures to control pollution resulting from construction activities;
floodplain management controls; wetland protection measures; best
management practices for new subdivisions; and emergency spill response
programs. The description may address controls established under State
law as well as local requirements.
(B) A description of the existing program to identify illicit
connections to the municipal storm sewer system. The description should
include inspection procedures and methods for detecting and preventing
illicit discharges, and describe areas where this program has been
implemented.
(vi) Fiscal resources. (A) A description of the financial resources
currently available to the municipality to complete part 2 of the permit
application. A description of the municipality's budget for existing
storm water programs, including an overview of the municipality's
financial resources and budget, including overall indebtedness and
assets, and sources of funds for storm water programs.
(2) Part 2. Part 2 of the application shall consist of:
(i) Adequate legal authority. A demonstration that the applicant can
operate pursuant to legal authority established by statute, ordinance or
series of contracts which authorizes or enables the applicant at a
minimum to:
(A) Control through ordinance, permit, contract, order or similar
means, the contribution of pollutants to the municipal storm sewer by
storm water discharges associated with industrial activity and the
quality of storm water discharged from sites of industrial activity;
(B) Prohibit through ordinance, order or similar means, illicit
discharges to the municipal separate storm sewer;
(C) Control through ordinance, order or similar means the discharge
to a municipal separate storm sewer of spills, dumping or disposal of
materials other than storm water;
(D) Control through interagency agreements among coapplicants the
contribution of pollutants from one portion of the municipal system to
another portion of the municipal system;
(E) Require compliance with conditions in ordinances, permits,
contracts or orders; and
(F) Carry out all inspection, surveillance and monitoring procedures
necessary to determine compliance and noncompliance with permit
conditions including the prohibition on illicit discharges to the
municipal separate storm sewer.
(ii) Source identification. The location of any major outfall that
discharges to waters of the United States that was not reported under
paragraph (d)(1)(iii)(B)(1) of this section. Provide an inventory,
organized by watershed of the name and address, and a description (such
as SIC codes) which best reflects the principal products or services
provided by each facility which may discharge, to the municipal separate
storm sewer, storm water associated with industrial activity;
(iii) Characterization data. When ``quantitative data'' for a
pollutant are required under paragraph (d)(2)(iii)(A)(3) of this
section, the applicant must collect a sample of effluent in accordance
with 40 CFR 122.21(g)(7) and analyze it for the pollutant in accordance
with analytical methods approved under part 136 of this chapter. When no
analytical method is approved the applicant may use any suitable method
but must provide a description of the method. The applicant must provide
information characterizing the quality and quantity of discharges
covered in the permit application, including:
(A) Quantitative data from representative outfalls designated by the
Director (based on information received in part 1 of the application,
the Director shall designate between five and ten outfalls or field
screening points as representative of the commercial, residential and
industrial land use activities of the drainage area contributing to the
system or, where there are less than five outfalls covered in the
application, the Director shall designate all outfalls) developed as
follows:
(1) For each outfall or field screening point designated under this
subparagraph, samples shall be collected of storm water discharges from
three storm events occurring at least one
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month apart in accordance with the requirements at Sec. 122.21(g)(7)
(the Director may allow exemptions to sampling three storm events when
climatic conditions create good cause for such exemptions);
(2) A narrative description shall be provided of the date and
duration of the storm event(s) sampled, rainfall estimates of the storm
event which generated the sampled discharge and the duration between the
storm event sampled and the end of the previous measurable (greater than
0.1 inch rainfall) storm event;
(3) For samples collected and described under paragraphs (d)(2)(iii)
(A)(1) and (A)(2) of this section, quantitative data shall be provided
for: the organic pollutants listed in Table II; the pollutants listed in
Table III (toxic metals, cyanide, and total phenols) of appendix D of 40
CFR part 122, and for the following pollutants:
Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
(4) Additional limited quantitative data required by the Director
for determining permit conditions (the Director may require that
quantitative data shall be provided for additional parameters, and may
establish sampling conditions such as the location, season of sample
collection, form of precipitation (snow melt, rainfall) and other
parameters necessary to insure representativeness);
(B) Estimates of the annual pollutant load of the cumulative
discharges to waters of the United States from all identified municipal
outfalls and the event mean concentration of the cumulative discharges
to waters of the United States from all identified municipal outfalls
during a storm event (as described under Sec. 122.21(c)(7)) for
BOD5, COD, TSS, dissolved solids, total nitrogen, total
ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus,
cadmium, copper, lead, and zinc. Estimates shall be accompanied by a
description of the procedures for estimating constituent loads and
concentrations, including any modelling, data analysis, and calculation
methods;
(C) A proposed schedule to provide estimates for each major outfall
identified in either paragraph (d)(2)(ii) or (d)(1)(iii)(B)(1) of this
section of the seasonal pollutant load and of the event mean
concentration of a representative storm for any constituent detected in
any sample required under paragraph (d)(2)(iii)(A) of this section; and
(D) A proposed monitoring program for representative data collection
for the term of the permit that describes the location of outfalls or
field screening points to be sampled (or the location of instream
stations), why the location is representative, the frequency of
sampling, parameters to be sampled, and a description of sampling
equipment.
(iv) Proposed management program. A proposed management program
covers the duration of the permit. It shall include a comprehensive
planning process which involves public participation and where necessary
intergovernmental coordination, to reduce the discharge of pollutants to
the maximum extent practicable using management practices, control
techniques and system, design and engineering methods, and such other
provisions which are appropriate. The program shall also include a
description of staff and equipment available to implement the program.
Separate proposed programs may be submitted by each coapplicant.
Proposed programs may impose controls on a systemwide basis, a watershed
basis, a jurisdiction basis, or on individual outfalls. Proposed
programs will be considered by the Director when developing permit
conditions to reduce pollutants in discharges to the maximum extent
practicable. Proposed management programs shall describe priorities for
implementing controls. Such programs shall be based on:
(A) A description of structural and source control measures to
reduce pollutants from runoff from commercial
[[Page 188]]
and residential areas that are discharged from the municipal storm sewer
system that are to be implemented during the life of the permit,
accompanied with an estimate of the expected reduction of pollutant
loads and a proposed schedule for implementing such controls. At a
minimum, the description shall include:
(1) A description of maintenance activities and a maintenance
schedule for structural controls to reduce pollutants (including
floatables) in discharges from municipal separate storm sewers;
(2) A description of planning procedures including a comprehensive
master plan to develop, implement and enforce controls to reduce the
discharge of pollutants from municipal separate storm sewers which
receive discharges from areas of new development and significant
redevelopment. Such plan shall address controls to reduce pollutants in
discharges from municipal separate storm sewers after construction is
completed. (Controls to reduce pollutants in discharges from municipal
separate storm sewers containing construction site runoff are addressed
in paragraph (d)(2)(iv)(D) of this section;
(3) A description of practices for operating and maintaining public
streets, roads and highways and procedures for reducing the impact on
receiving waters of discharges from municipal storm sewer systems,
including pollutants discharged as a result of deicing activities;
(4) A description of procedures to assure that flood management
projects assess the impacts on the water quality of receiving water
bodies and that existing structural flood control devices have been
evaluated to determine if retrofitting the device to provide additional
pollutant removal from storm water is feasible;
(5) A description of a program to monitor pollutants in runoff from
operating or closed municipal landfills or other treatment, storage or
disposal facilities for municipal waste, which shall identify priorities
and procedures for inspections and establishing and implementing control
measures for such discharges (this program can be coordinated with the
program developed under paragraph (d)(2)(iv)(C) of this section); and
(6) A description of a program to reduce to the maximum extent
practicable, pollutants in discharges from municipal separate storm
sewers associated with the application of pesticides, herbicides and
fertilizer which will include, as appropriate, controls such as
educational activities, permits, certifications and other measures for
commercial applicators and distributors, and controls for application in
public right-of-ways and at municipal facilities.
(B) A description of a program, including a schedule, to detect and
remove (or require the discharger to the municipal separate storm sewer
to obtain a separate NPDES permit for) illicit discharges and improper
disposal into the storm sewer. The proposed program shall include:
(1) A description of a program, including inspections, to implement
and enforce an ordinance, orders or similar means to prevent illicit
discharges to the municipal separate storm sewer system; this program
description shall address all types of illicit discharges, however the
following category of non-storm water discharges or flows shall be
addressed where such discharges are identified by the municipality as
sources of pollutants to waters of the United States: water line
flushing, landscape irrigation, diverted stream flows, rising ground
waters, uncontaminated ground water infiltration (as defined at 40 CFR
35.2005(20)) to separate storm sewers, uncontaminated pumped ground
water, discharges from potable water sources, foundation drains, air
conditioning condensation, irrigation water, springs, water from crawl
space pumps, footing drains, lawn watering, individual residential car
washing, flows from riparian habitats and wetlands, dechlorinated
swimming pool discharges, and street wash water (program descriptions
shall address discharges or flows from fire fighting only where such
discharges or flows are identified as significant sources of pollutants
to waters of the United States);
[[Page 189]]
(2) A description of procedures to conduct on-going field screening
activities during the life of the permit, including areas or locations
that will be evaluated by such field screens;
(3) A description of procedures to be followed to investigate
portions of the separate storm sewer system that, based on the results
of the field screen, or other appropriate information, indicate a
reasonable potential of containing illicit discharges or other sources
of non-storm water (such procedures may include: sampling procedures for
constituents such as fecal coliform, fecal streptococcus, surfactants
(MBAS), residual chlorine, fluorides and potassium; testing with
fluorometric dyes; or conducting in storm sewer inspections where safety
and other considerations allow. Such description shall include the
location of storm sewers that have been identified for such evaluation);
(4) A description of procedures to prevent, contain, and respond to
spills that may discharge into the municipal separate storm sewer;
(5) A description of a program to promote, publicize, and facilitate
public reporting of the presence of illicit discharges or water quality
impacts associated with discharges from municipal separate storm sewers;
(6) A description of educational activities, public information
activities, and other appropriate activities to facilitate the proper
management and disposal of used oil and toxic materials; and
(7) A description of controls to limit infiltration of seepage from
municipal sanitary sewers to municipal separate storm sewer systems
where necessary;
(C) A description of a program to monitor and control pollutants in
storm water discharges to municipal systems from municipal landfills,
hazardous waste treatment, disposal and recovery facilities, industrial
facilities that are subject to section 313 of title III of the Superfund
Amendments and Reauthorization Act of 1986 (SARA), and industrial
facilities that the municipal permit applicant determines are
contributing a substantial pollutant loading to the municipal storm
sewer system. The program shall:
(1) Identify priorities and procedures for inspections and
establishing and implementing control measures for such discharges;
(2) Describe a monitoring program for storm water discharges
associated with the industrial facilities identified in paragraph
(d)(2)(iv)(C) of this section, to be implemented during the term of the
permit, including the submission of quantitative data on the following
constituents: any pollutants limited in effluent guidelines
subcategories, where applicable; any pollutant listed in an existing
NPDES permit for a facility; oil and grease, COD, pH, BOD5,
TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite
nitrogen, and any information on discharges required under Sec.
122.21(g)(7) (vi) and (vii).
(D) A description of a program to implement and maintain structural
and non-structural best management practices to reduce pollutants in
storm water runoff from construction sites to the municipal storm sewer
system, which shall include:
(1) A description of procedures for site planning which incorporate
consideration of potential water quality impacts;
(2) A description of requirements for nonstructural and structural
best management practices;
(3) A description of procedures for identifying priorities for
inspecting sites and enforcing control measures which consider the
nature of the construction activity, topography, and the characteristics
of soils and receiving water quality; and
(4) A description of appropriate educational and training measures
for construction site operators.
(v) Assessment of controls. Estimated reductions in loadings of
pollutants from discharges of municipal storm sewer constituents from
municipal storm sewer systems expected as the result of the municipal
storm water quality management program. The assessment shall also
identify known impacts of storm water controls on ground water.
(vi) Fiscal analysis. For each fiscal year to be covered by the
permit, a fiscal analysis of the necessary capital
[[Page 190]]
and operation and maintenance expenditures necessary to accomplish the
activities of the programs under paragraphs (d)(2) (iii) and (iv) of
this section. Such analysis shall include a description of the source of
funds that are proposed to meet the necessary expenditures, including
legal restrictions on the use of such funds.
(vii) Where more than one legal entity submits an application, the
application shall contain a description of the roles and
responsibilities of each legal entity and procedures to ensure effective
coordination.
(viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii),
(d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are
not applicable, the Director may exclude any operator of a discharge
from a municipal separate storm sewer which is designated under
paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this section from such
requirements. The Director shall not exclude the operator of a discharge
from a municipal separate storm sewer identified in appendix F, G, H or
I of part 122, from any of the permit application requirements under
this paragraph except where authorized under this section.
(e) Application deadlines. Any operator of a point source required
to obtain a permit under this section that does not have an effective
NPDES permit authorizing discharges from its storm water outfalls shall
submit an application in accordance with the following deadlines:
(1) Storm water discharges associated with industrial activity. (i)
Except as provided in paragraph (e)(1)(ii) of this section, for any
storm water discharge associated with industrial activity identified in
paragraphs (b)(14)(i) through (xi) of this section, that is not part of
a group application as described in paragraph (c)(2) of this section or
that is not authorized by a storm water general permit, a permit
application made pursuant to paragraph (c) of this section must be
submitted to the Director by October 1, 1992;
(ii) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 that is not authorized by a
general or individual permit, other than an airport, powerplant, or
uncontrolled sanitary landfill, the permit application must be submitted
to the Director by March 10, 2003.
(2) For any group application submitted in accordance with paragraph
(c)(2) of this section:
(i) Part 1. (A) Except as provided in paragraph (e)(2)(i)(B) of this
section, part 1 of the application shall be submitted to the Director,
Office of Wastewater Enforcement and Compliance by September 30, 1991;
(B) Any municipality with a population of less than 250,000 shall
not be required to submit a part 1 application before May 18, 1992.
(C) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, permit applications
requirements are reserved.
(ii) Based on information in the part 1 application, the Director
will approve or deny the members in the group application within 60 days
after receiving part 1 of the group application.
(iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of
this section, part 2 of the application shall be submittted to the
Director, Office of Wastewater Enforcement and Compliance by October 1,
1992;
(B) Any municipality with a population of less than 250,000 shall
not be required to submit a part 1 application before May 17, 1993.
(C) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, permit applications
requirements are reserved.
(iv) Rejected facilities. (A) Except as provided in paragraph
(e)(2)(iv)(B) of this section, facilities that are rejected as members
of the group shall submit an individual application (or obtain coverage
under an applicable general permit) no later than 12 months after
[[Page 191]]
the date of receipt of the notice of rejection or October 1, 1992,
whichever comes first.
(B) Facilities that are owned or operated by a municipality and that
are rejected as members of part 1 group application shall submit an
individual application no later than 180 days after the date of receipt
of the notice of rejection or October 1, 1992, whichever is later.
(v) A facility listed under paragraph (b)(14) (i)-(xi) of this
section may add on to a group application submitted in accordance with
paragraph (e)(2)(i) of this section at the discretion of the Office of
Water Enforcement and Permits, and only upon a showing of good cause by
the facility and the group applicant; the request for the addition of
the facility shall be made no later than February 18, 1992; the addition
of the facility shall not cause the percentage of the facilities that
are required to submit quantitative data to be less than 10%, unless
there are over 100 facilities in the group that are submitting
quantitative data; approval to become part of group application must be
obtained from the group or the trade association representing the
individual facilities.
(3) For any discharge from a large municipal separate storm sewer
system;
(i) Part 1 of the application shall be submitted to the Director by
November 18, 1991;
(ii) Based on information received in the part 1 application the
Director will approve or deny a sampling plan under paragraph
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1
application;
(iii) Part 2 of the application shall be submitted to the Director
by November 16, 1992.
(4) For any discharge from a medium municipal separate storm sewer
system;
(i) Part 1 of the application shall be submitted to the Director by
May 18, 1992.
(ii) Based on information received in the part 1 application the
Director will approve or deny a sampling plan under paragraph
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1
application.
(iii) Part 2 of the application shall be submitted to the Director
by May 17, 1993.
(5) A permit application shall be submitted to the Director within
180 days of notice, unless permission for a later date is granted by the
Director (see Sec. 124.52(c) of this chapter), for:
(i) A storm water discharge that the Director, or in States with
approved NPDES programs, either the Director or the EPA Regional
Administrator, determines that the discharge contributes to a violation
of a water quality standard or is a significant contributor of
pollutants to waters of the United States (see paragraphs (a)(1)(v) and
(b)(15)(ii) of this section);
(ii) A storm water discharge subject to paragraph (c)(1)(v) of this
section.
(6) Facilities with existing NPDES permits for storm water
discharges associated with industrial activity shall maintain existing
permits. Facilities with permits for storm water discharges associated
with industrial activity which expire on or after May 18, 1992 shall
submit a new application in accordance with the requirements of 40 CFR
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable
Forms) 180 days before the expiration of such permits.
(7) The Director shall issue or deny permits for discharges composed
entirely of storm water under this section in accordance with the
following schedule:
(i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section,
the Director shall issue or deny permits for storm water discharges
associated with industrial activity no later than October 1, 1993, or,
for new sources or existing sources which fail to submit a complete
permit application by October 1, 1992, one year after receipt of a
complete permit application;
(B) For any municipality with a population of less than 250,000
which submits a timely Part I group application under paragraph
(e)(2)(i)(B) of this section, the Director shall issue or deny permits
for storm water discharges associated with industrial activity no later
than May 17, 1994, or, for any such municipality which fails to submit a
[[Page 192]]
complete Part II group permit application by May 17, 1993, one year
after receipt of a complete permit application;
(ii) The Director shall issue or deny permits for large municipal
separate storm sewer systems no later than November 16, 1993, or, for
new sources or existing sources which fail to submit a complete permit
application by November 16, 1992, one year after receipt of a complete
permit application;
(iii) The Director shall issue or deny permits for medium municipal
separate storm sewer systems no later than May 17, 1994, or, for new
sources or existing sources which fail to submit a complete permit
application by May 17, 1993, one year after receipt of a complete permit
application.
(8) For any storm water discharge associated with small construction
activities identified in paragraph (b)(15)(i) of this section, see Sec.
122.21(c)(1). Discharges from these sources require permit authorization
by March 10, 2003, unless designated for coverage before then.
(9) For any discharge from a regulated small MS4, the permit
application made under Sec. 122.33 must be submitted to the Director
by:
(i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless
your MS4 serves a jurisdiction with a population under 10,000 and the
NPDES permitting authority has established a phasing schedule under
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
(ii) Within 180 days of notice, unless the NPDES permitting
authority grants a later date, if designated under Sec. 122.32(a)(2)
(see Sec. 122.33(c)(2)).
(f) Petitions. (1) Any operator of a municipal separate storm sewer
system may petition the Director to require a separate NPDES permit (or
a permit issued under an approved NPDES State program) for any discharge
into the municipal separate storm sewer system.
(2) Any person may petition the Director to require a NPDES permit
for a discharge which is composed entirely of storm water which
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.
(3) The owner or operator of a municipal separate storm sewer system
may petition the Director to reduce the Census estimates of the
population served by such separate system to account for storm water
discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that
is treated in a publicly owned treatment works. In municipalities in
which combined sewers are operated, the Census estimates of population
may be reduced proportional to the fraction, based on estimated lengths,
of the length of combined sewers over the sum of the length of combined
sewers and municipal separate storm sewers where an applicant has
submitted the NPDES permit number associated with each discharge point
and a map indicating areas served by combined sewers and the location of
any combined sewer overflow discharge point.
(4) Any person may petition the Director for the designation of a
large, medium, or small municipal separate storm sewer system as defined
by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
(5) The Director shall make a final determination on any petition
received under this section within 90 days after receiving the petition
with the exception of petitions to designate a small MS4 in which case
the Director shall make a final determination on the petition within 180
days after its receipt.
(g) Conditional exclusion for ``no exposure'' of industrial
activities and materials to storm water. Discharges composed entirely of
storm water are not storm water discharges associated with industrial
activity if there is ``no exposure'' of industrial materials and
activities to rain, snow, snowmelt and/or runoff, and the discharger
satisfies the conditions in paragraphs (g)(1) through (g)(4) of this
section. ``No exposure'' means that 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, or waste products. Material
handling activities include the storage, loading and unloading,
transportation,
[[Page 193]]
or conveyance of any raw material, intermediate product, final product
or waste product.
(1) Qualification. To qualify for this exclusion, the operator of
the discharge must:
(i) Provide a storm resistant shelter to protect industrial
materials and activities from exposure to rain, snow, snow melt, and
runoff;
(ii) Complete and sign (according to Sec. 122.22) a certification
that there are no discharges of storm water contaminated by exposure to
industrial materials and activities from the entire facility, except as
provided in paragraph (g)(2) of this section;
(iii) Submit the signed certification to the NPDES permitting
authority once every five years;
(iv) Allow the Director to inspect the facility to determine
compliance with the ``no exposure'' conditions;
(v) Allow the Director to make any ``no exposure'' inspection
reports available to the public upon request; and
(vi) For facilities that discharge through an MS4, upon request,
submit a copy of the certification of ``no exposure'' to the MS4
operator, as well as allow inspection and public reporting by the MS4
operator.
(2) Industrial materials and activities not requiring storm
resistant shelter. To qualify for this exclusion, storm resistant
shelter is not required for:
(i) Drums, barrels, tanks, and similar containers that are tightly
sealed, provided those containers are not deteriorated and do not leak
(``Sealed'' means banded or otherwise secured and without operational
taps or valves);
(ii) Adequately maintained vehicles used in material handling; and
(iii) Final products, other than products that would be mobilized in
storm water discharge (e.g., rock salt).
(3) Limitations. (i) Storm water discharges from construction
activities identified in paragraphs (b)(14)(x) and (b)(15) are not
eligible for this conditional exclusion.
(ii) This conditional exclusion from the requirement for an NPDES
permit is available on a facility-wide basis only, not for individual
outfalls. If a facility has some discharges of storm water that would
otherwise be ``no exposure'' discharges, individual permit requirements
should be adjusted accordingly.
(iii) If circumstances change and industrial materials or activities
become exposed to rain, snow, snow melt, and/or runoff, the conditions
for this exclusion no longer apply. In such cases, the discharge becomes
subject to enforcement for un-permitted discharge. Any conditionally
exempt discharger who anticipates changes in circumstances should apply
for and obtain permit authorization prior to the change of
circumstances.
(iv) Notwithstanding the provisions of this paragraph, the NPDES
permitting authority retains the authority to require permit
authorization (and deny this exclusion) upon making a determination that
the discharge causes, has a reasonable potential to cause, or
contributes to an instream excursion above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure certification must require the
submission of the following information, at a minimum, to aid the NPDES
permitting authority in determining if the facility qualifies for the no
exposure exclusion:
(i) The legal name, address and phone number of the discharger (see
Sec. 122.21(b));
(ii) The facility name and address, the county name and the latitude
and longitude where the facility is located;
(iii) The certification must indicate that none of the following
materials or activities are, or will be in the foreseeable future,
exposed to precipitation:
(A) Using, storing or cleaning industrial machinery or equipment,
and areas where residuals from using, storing or cleaning industrial
machinery or equipment remain and are exposed to storm water;
(B) Materials or residuals on the ground or in storm water inlets
from spills/leaks;
(C) Materials or products from past industrial activity;
(D) Material handling equipment (except adequately maintained
vehicles);
(E) Materials or products during loading/unloading or transporting
activities;
(F) Materials or products stored outdoors (except final products
intended for outside use, e.g., new cars, where
[[Page 194]]
exposure to storm water does not result in the discharge of pollutants);
(G) Materials contained in open, deteriorated or leaking storage
drums, barrels, tanks, and similar containers;
(H) Materials or products handled/stored on roads or railways owned
or maintained by the discharger;
(I) Waste material (except waste in covered, non-leaking containers,
e.g., dumpsters);
(J) Application or disposal of process wastewater (unless otherwise
permitted); and
(K) Particulate matter or visible deposits of residuals from roof
stacks/vents not otherwise regulated, i.e., under an air quality control
permit, and evident in the storm water outflow;
(iv) All ``no exposure'' certifications must include the following
certification statement, and be signed in accordance with the signatory
requirements of Sec. 122.22: ``I certify under penalty of law that I
have read and understand the eligibility requirements for claiming a
condition of ``no exposure'' and obtaining an exclusion from NPDES storm
water permitting; and that there are no discharges of storm water
contaminated by exposure to industrial activities or materials from the
industrial facility identified in this document (except as allowed under
paragraph (g)(2)) of this section. I understand that I am obligated to
submit a no exposure certification form once every five years to the
NPDES permitting authority and, if requested, to the operator of the
local MS4 into which this facility discharges (where applicable). I
understand that I must allow the NPDES permitting authority, or MS4
operator where the discharge is into the local MS4, to perform
inspections to confirm the condition of no exposure and to make such
inspection reports publicly available upon request. I understand that I
must obtain coverage under an NPDES permit prior to any point source
discharge of storm water from the facility. I certify under penalty of
law that this document and all attachments were prepared under my
direction or supervision in accordance with a system designed to assure
that qualified personnel properly gathered and evaluated the information
submitted. Based upon my inquiry of the person or persons who manage the
system, or those persons directly involved in gathering the information,
the information submitted is to the best of my knowledge and belief
true, accurate and complete. I am aware there are significant penalties
for submitting false information, including the possibility of fine and
imprisonment for knowing violations.''
[55 FR 48063, Nov. 16, 1990, as amended at 56 FR 12100, Mar. 21, 1991;
56 FR 56554, Nov. 5, 1991; 57 FR 11412, Apr. 2, 1992; 57 FR 60447, Dec.
18, 1992; 60 FR 17956, Apr. 7, 1995; 60 FR 19464, Apr. 18, 1995; 60 FR
40235, Aug. 7, 1995; 64 FR 68838, Dec. 8, 1999; 65 FR 30907, May 15,
2000; 68 FR 11329, Mar. 10, 2003; 69 FR 18803, Apr. 9, 2004; 70 FR
11563, Mar. 9, 2005; 71 FR 33639, June 12, 2006]