Paints & Coatings Resource Center

Stormwater Rules Have Changed and Painters Must Take Action

The Rules are Changing

The original EPA stormwater regulations (referred to as Phase I ) went into effect in 1990. These rules required certain types of industrial facilities to obtain a National Pollutant Discharge Elimination System (NPDES) permit for their stormwater discharge. Operators of one of those types of facilities (category 11 - "light industry") were exempted from the permit requirement provided their industrial materials or activities were not "exposed" to stormwater. The 1990 stormwater regulations allowed painting facilities (and other facilities categorized as "light industry") to make their own determination of whether or not there was exposure of industrial materials to stormwater.  If not, there was no need to submit a permit application.

Those painters who do have "exposure" to stormwater should have applied for a permit and should currently be abiding by its requirements.  But many -- probably most -- painters have either determined that they do not have stormwater exposure, or have remained unaware of the regulation.

This situation is changing.  Revised stormwater regulations, referred to as Phase II Stormwater rules, were published by EPA in 1999.  The Phase II rules have changed the "no exposure" option. Now, all painting facilities (except those located in specified arid areas) must either:

  • have an NPDES stormwater permit, or
  • submit a written certification to their NPDES permitting authority once every five years indicating that the facility meets the definition of "no exposure".

In other words, if you determine that you have no exposure, it is no longer sufficient simply to take no further action.  You are now required to document your determination in writing.

If you do not meet the definition of "no exposure", and if you do not have a stormwater permit, you are currently out of compliance.

The purpose of this Paint Center feature is twofold:

  • to alert painters about the Phase II requirements for written certification, and
  • for companies that  are currently out of compliance, to offer guidance on how to get into compliance

Who is the NPDES Stormwater Regulatory Authority?

Throughout most of the nation, EPA has delegated the stormwater program to the states to administer as they see fit, so long as minimum federal requirements are met. Therefore, in most states you will submit your no exposure certification or permit application to your state environmental agency.

However, some states may not yet have the authority to administer this program. For the following states, you may need to submit your certification or permit application to your Regional EPA office: Alaska, Idaho, Massachusetts, New Hampshire Texas, Florida, Maine, and Arizona. If your facility is in one of these states, we suggest contacting both your Regional EPA office and state agency to find out where to submit your paperwork.

You should also know that the administration of the Phase II rules and in particular, the revised "no exposure" exemption, is still unsettled within many states. For example, your state may or may not have set a due date for submitting a Phase II certification. To help you find the latest state information, the Paint Center maintains a Stormwater Resource Locator (SWRL).  Use the SWRL to find information, permit forms, resources, and state agency contact information for your state.

What is the Regulatory Definition of "No Exposure"?

"No exposure" means 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.

EPA has  prepared a useful document to explain this rule: Storm Water Phase II Final Rule, Conditional No Exposure Exclusion for Industrial Activity.

How to Determine if You Meet the "No Exposure" Definition

Your state environmental regulatory agency may provide guidance on determining if you meet the "no exposure" definition. Use the Paint Center's Stormwater Resource Locator (SWRL) to find information about your state program.

EPA published a four-page No Exposure Certification form that uses a series of yes/no questions to aid facility operators in determining whether they have a condition of no exposure. In some states, this form has been adopted and it may also serves as the necessary certification of no exposure (provided the operator is able to answer all of the questions in the negative). Most states have published their own "no exposure" form. Use the SWRL to find the form that should be used in your state.

Submitting Your Written Certification of "No Exposure" --- Where and When?

The written certification of "no exposure" should be submitted to your NPDES authority, which can be either your state agency or the EPA Regional office in your region, as discussed above.

We recommend that you contact your NPDES authority to determine when the certification is due. The Phase II rule did not specify a due date.  Some states have adopted a March 10, 2003 due date, which correlates with other due dates found in the Phase II rules.  However, in some states, the certification may already be past due. Use our SWRL feature to track down this information for your state, and to find contact information.

How to Apply for a NPDES Industrial Stormwater Permit

If your facility does not meet the definition of "no exposure," then you need a stormwater discharge permit. There are two types of NPDES industrial storm water permits: general and individual permits. In either case, you apply for coverage to your NPDES stormwater control authority. As discussed above, for most states this is your environmental regulatory agency. For certain states this is your Regional EPA office.

  • General Permits. Most industrial facilities have permit coverage under a statewide general permit that covers stormwater discharges from industrial facilities within the state. To obtain coverage under a statewide permit, you must submit a Notice of Intent (NOI) to your state agency (or EPA Regional office if you are in an unauthorized state). Most state general permits have similar requirements, such as:
    • You must develop and implement a Stormwater Pollution Prevention Plan (SWPPP), which specifies Best Management Practices (BMPs) that will prevent all pollutants from contacting stormwater.
    • Perform regular inspections to insure your compliance with all BMPs.
  • Individual Permits. There are certain circumstances where a general permit is either not available or not applicable to a specific facility. In this type of situation, a facility operator must obtain coverage under an individual permit that the NPDES permitting authority will develop with requirements specific to the facility. This is an involved process and you should contact your state water pollution control agency for advice.

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