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Brantley - Junk Yard Operation Rules
, MEMORANDUM CITY OF OKEECHOBEE , -" GENERAL SERVICES 55 SE THIRD AVENUE `ziti OKEECHOBEE FL 34974 t , ` ; " 863-763-3372 EXT. 218 from the desk of Betty J. Clement TO: Fred SUBJECT: Brantley's DATE: October 5, 2009 Fred, Attached is all the info I gathers that may or may not be useful. I called Kim to see if there were state permits relevant to operating a junk yard, but she was not aware of any. She is checking with surrounding municipalities. I found nothing on the web or Florida Statutes Regarding additional permits. Hope this is useful. Code of Ordinances: Section 66-1 Definitions Salvage yard—land or structure, or part thereof, used for collecting, storage or sale of wastepaper, rags, scrap metal or discard material; or for collecting, dismantling, salvaging storage or sale of machinery parts or vehicles not in running condition. Sec. 90-341. Generally. (a) Industrial (ND) zoning districts shall be permitted only on land designated as future land use category industrial in the comprehensive plan. (b) Uses in industrial (IND) zoning districts shall be subject to the regulations of this division. (LDR 1998, § 400) Sec. 90-343. Special exception uses. The following uses and structures are permitted in the IND district after issuance of a special exception use petition and may have additional conditions imposed at the time of approval: (1) Manufacturing chemical or leather products. (2) Bulk storage of hazardous material and flammable liquid. (3) Salvage yard. (4) Other industrial uses not listed. (5) Cafe. (6) Crematory. (7) Fortuneteller. (8) Permitted uses in excess of 45 feet in height. (9) Outdoor vehicle sales lot. No other zoning district has salvage yard as a permitted or otherwise use. S;'atutesb&; Constitution :View Statutes :->2009->Ch0339->Section 241 : Online Sunshine Page 1 of 2 D , Select Year: 2009 Ga The 2009 Florida Statutes Title XXVI Chapter 339 View Entire Chapter PUBLIC TRANSPORTATION TRANSPORTATION FINANCE AND PLANNING 339.241 Florida Junkyard Control Law.-- (1) SHORT TITLE.--This section shall be known as the"Florida Junkyard Control Law." (2) DEFINITIONS.--Wherever used or referred to in this section, unless a different meaning clearly appears from the context, the term: (a) "Areas zoned for industrial use" means all areas zoned for industrial use by governmental entities within the state or an unzoned industrial area approved by the department. Such areas must be based upon the existence of at least one industrial activity other than the junkyard or scrap metal processing plant. (b) "Automobile graveyard" means any establishment or place of business which is maintained, used, or operated for storing, keeping, buying, or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts. (c) "Distance from edge of right-of-way" means the distance presently defined in 23 U.S.C. s. 136(g). (d) "Federal-aid primary highway" means any highway within that portion of the State Highway System as included and maintained under chapter 335, including extensions of such system within municipalities, which has been approved by the Secretary of Transportation pursuant to 23 U.S.C. s. 103(b). (e) "Fence" means an enclosure so constructed or planted and maintained as to obscure the junkyard from ordinary view to those persons passing upon the highways in this state. (f) "Interstate highway" means the system presently defined in 23 U.S.C. s. 103(e). (g) "Junk," "junkyard," and "scrap metal processing facility" mean the same as defined in 23 U.S.C. s. 136. (3) RESTRICTIONS AS TO LOCATION.--No junk, junkyard, automobile graveyard, or scrap metal processing facility shall be operated or maintained within 1,000 feet of the nearest edge of the right-of-way of any interstate or federal-aid primary highway, except: (a) A junkyard which is screened by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main-traveled way of the highway or which is otherwise removed from sight. (b) A junkyard or scrap metal processing facility which is located in an area zoned for industrial use. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch03... 10/2/2009 S. tutes4 Constitution :View Statutes :->2009->Ch0339->Section 241 : Online Sunshine Page 2 of 2 (c) A junkyard or scrap metal processing facility which is not visible from the main-traveled way of any interstate or federal-aid primary highway. Any junkyard which was in existence on December 8, 1971, which the department determines cannot be screened because of topography and elevation is not required under this section to be removed, relocated, or disposed of until federal funds are available. (4) REQUIREMENTS AS TO FENCES; EXPENDITURE OF FUNDS.-- (a) A fence constructed under the provisions of this section shall be kept in good order and repair, and any advertisement on the fence shall be regulated by applicable state law. (b) The department is authorized to spend such funds as are necessary to obtain federal-aid funds for the purposes described in this subsection. (5) ENFORCEMENT.--It is the function and duty of the department to administer and enforce the provisions of this section. The department or any public official may apply to the circuit court or another court of competent jurisdiction of the county in which the junkyard or scrap metal processing facility may be located for an injunction to abate such nuisance. (6) PENALTY.--Any person who violates any provision of this section is subject to a fine of not less than $50 or more than $200. Each day during any portion of which such violation occurs constitutes a continuing separate offense. History.--ss. 1, 2, 3, 4, 5, 6, ch. 71-338; ss. 1, 2, 3, 4, 5, 6, 7, ch. 71-972; s. 221, ch. 84-309; s. 105, ch. 99-385. Copyright © 1995-2009 The Florida Legislature • Privacy Statement • Contact Us http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch03... 10/2/2009 , A. The Clean Water Act Topic Learning Objectives: At the conclusion of this session, students will be able to identify when an NPDES permit is required and the basic requirements the NPDES permit imposes. ACRONYMS you will encounter in this topic are: BAT Best Available Technology BCT Best Conventional Technology BOD Biochemical Oxygen Demand BMP Best Management Practices BPJ Best Professional Judgment BPT Best Practical Technology CWA Clean Water Act EPA Environmental Protection Agency FDF Fundamentally Different Factor NPDES National Pollutant Discharge Elimination System NSPS New Source Performance Standard POTW Publicly Owned Treatment Works TMDL Total Maximum Daily Load WQS Water Quality Standard Related topics are included in these other topics: 404 Permits, The Clean Air Act, Regulatory Enforcement Additional readings to supplement the instruction are: Clean Water Act Deskbook, Environmental Law Institute, Environmental Law: Air and Water, William Rodgers Clean Water Act Notes Introduction In the Clean Water Act, Congress announced a national goal that"the discharge of pollutants be eliminated by 1985" and an interim goal that all waters of the United States would be fishable and swimmable by 1983. CWA § 101(a)(1), (2). The Clean Water Act relies on three principal mechanisms to achieve improvement in water quality: 1. a permitting program limiting discharges of pollution into surface waters; 2. a program for identifying water bodies where water quality is problematic and limiting the sources of pollution to such water bodies; and 3. a grant and loan program for the upgrading of publicly owned sewage treatment facilities. Many different types of sources posing specific water pollution problem— including the storm water runoff program, of particular interest to the Corps—fall within the general pollution discharge permitting program. I. Scope of pollution discharge permitting progress A. The National Pollutant Discharge Elimination System (NPDES) program applies to all discharges of pollutants from point sources into navigable waters. [§§ 301, 402 and 502(12)] B. What is a"discharge of a pollutant?" 1. The definition of"pollutant" is very broad. It includes virtually any physical substance, including munitions. See Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). Heat is an example of a non-physical substance that is with the definition of"pollutant"that is covered by the Act. Concrete, sand and paint chips that fall into a bay during transport are "pollutants" whose discharge requires a permit. United States v. West Indies Transport, 127 F.3d 299 (3d Cir. 1997). Aerial discharges of pesticides can be the discharge of pollutants even if the application complies with federal pesticide laws. No Spray Coalition, Inc. v. City of New York, 351 F.3d 602 (2d Cir. 2003); League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). Chapter VI,Section A 2 ' r Clean Water Act Notes 2. There is no regulatory threshold or de minimis exception. Every discharge of a pollutant is covered under the Act— presuming that the other requirements are also met. 3. Although dams clearly change water quality, they usually do not"add"pollutants to the water and therefore do not require a NPDES permit. National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). See also National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988) (fish ground up by being entrained into hydroelectric turbines were not an"addition" of a pollutant; no NPDES permit required). Drawing down a dam and allowing collected sediment to run down stream can be the introduction of a pollutant into navigable waters. Greenfield Mills, Inc. v. Macklin, 361 F.3d 964 (7th Cir. 2004). The waste naturally generated by mussels that are not artificially fed has been held not to be a pollutant. Association to Protect Hammersley, Eld& Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002). 4. Removing water from an artificial lake for municipal water use will not require a NPDES permit, even when water quality is affected. North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997). A diversion of water that is returned to the same stream does not require a permit, United States v. Law, 979 F.2d 977, 979 (4th Cir. 1992); United States v. Tennessee Water Quality Control Board, 717 F.2d 992 (6th Cir. 1983). Recently, EPA argued to the Supreme Court that any discharge of navigable waters into navigable waters is not the addition of a pollutant. Although it did not rule on the argument directly, the Supreme Court may have cast doubt on that view. See South Florida Water Management District v. Miccosukee Tribe, 124 S. Ct. 1537, 1544.45 (2004). A diversion from one stream to another may constitute the "addition"of pollutants to the second stream and does require a NPDES permit. Catskills Mountains Chapter of Trout Unlimited v. City of New York, 273 F.3d 481 (2d Cir. 2001); DuBois v. U.S. Dept. of Agriculture, 102 F.3d 1273 (1st Cir. 1996) (water used for making artificial snow ran off into different stream). The discharge of contaminated groundwater associated with coalbed methane gas extraction is the discharge of a pollutant. Norther Plains Resource Council v. Fidelity Exploration & Development Co., 325 F.3d 1155 (9th Cir. 2003). C. The definition of"point source" is similarly broad, including "any Chapter VI,Section A 3 • Clean Water Act Notes discernible, confined and discrete conveyance." The point source need only convey pollutants; it does not need to generate the pollutants. South Florida Water Management District v. Miccosukee Tribe of Indians, 124 S. Ct. 1532 (2004). 1. Even surface water runoff may constitute a point source discharge if it is channeled or collected. U.S. v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979). 2. In U.S. v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), a criminal case,the Second Circuit determined that the United States could not criminally sanction an individual who had disposed of vials of contaminated blood in a bulkhead, from which they were washed into the Hudson River by tidal influences. The court held that the term "point source" does not unambiguously include humans who directly deposit pollutants into the navigable waters. The Ninth Circuit recently held that cattle are not in and of themselves point sources. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1099 (9th Cir. 1998). Similarly, harvesting facilities for mussels that feed on the surrounding water are not point sources. Association to Protect Hammersley, Eld& Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002). 3. In Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d. 114 (2d Cir. 1994), the same Second Circuit applied the term"point source"much more liberally in a civil enforcement case. There, in a case involving a citizen suit against a dairy farm operator,the court decided that the term included not only the ditches through which liquid manure flowed into the river, but also the spreading vehicles that sprayed the liquid manure over the farm more generally. "Nonpoint sources" include the runoff of polluted water from streets, farms,timber operations, construction sites, and other diverse places. Nonpoint sources are not subject to the NPDES permit system; instead,they are covered by a much less stringent regulatory scheme. D. Navigable waters-defined in § 502(7)to include all "waters of the United States, "which are in turn defined by regulation to include all waters which might be susceptible to use in interstate commerce and all other waters, such as lakes and wetlands which could affect Chapter VI,Section A 4 Clean Water Act Notes discernible, confined and discrete conveyance." The point source need only convey pollutants; it does not need to generate the pollutants. South Florida Water Management District v. Miccosukee Tribe of Indians, 124 S. Ct. 1532 (2004). 1. Even surface water runoff may constitute a point source discharge if it is channeled or collected. U.S. v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979). 2. In U.S. v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), a criminal case, the Second Circuit determined that the United States could not criminally sanction an individual who had disposed of vials of contaminated blood in a bulkhead, from which they were washed into the Hudson River by tidal influences. The court held that the term"point source" does not unambiguously include humans who directly deposit pollutants into the navigable waters. The Ninth Circuit recently held that cattle are not in and of themselves point sources. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1099 (9th Cir. 1998). Similarly, harvesting facilities for mussels that feed on the surrounding water are not point sources. Association to Protect Hammersley, Eld& Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002). 3. In Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d. 114 (2d Cir. 1994), the same Second Circuit applied the term "point source"much more liberally in a civil enforcement case. There, in a case involving a citizen suit against a dairy farm operator, the court decided that the term included not only the ditches through which liquid manure flowed into the river, but also the spreading vehicles that sprayed the liquid manure over the farm more generally. "Nonpoint sources" include the runoff of polluted water from streets, farms,timber operations, construction sites, and other diverse places. Nonpoint sources are not subject to the NPDES permit system; instead, they are covered by a much less stringent regulatory scheme. D. Navigable waters-defined in § 502(7)to include all "waters of the United States, "which are in turn defined by regulation to include all waters which might be susceptible to use in interstate commerce and all other waters, such as lakes and wetlands which could affect Chapter VI,Section A 4 Clean Water Act Notes 2. There is no regulatory threshold or de minimis exception. Every discharge of a pollutant is covered under the Act— presuming that the other requirements are also met. 3. Although dams clearly change water quality, they usually do not"add"pollutants to the water and therefore do not require a NPDES permit. National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). See also National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988) (fish ground up by being entrained into hydroelectric turbines were not an"addition"of a pollutant; no NPDES permit required). Drawing down a dam and allowing collected sediment to run down stream can be the introduction of a pollutant into navigable waters. Greenfield Mills, Inc. v. Macklin, 361 F.3d 964 (7th Cir. 2004). The waste naturally generated by mussels that are not artificially fed has been held not to be a pollutant. Association to Protect Hammersley, Eld& Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002). 4. Removing water from an artificial lake for municipal water use will not require a NPDES permit, even when water quality is affected. North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997). A diversion of water that is returned to the same stream does not require a permit, United States v. Law, 979 F.2d 977, 979 (4th Cir. 1992); United States v. Tennessee Water Quality Control Board, 717 F.2d 992 (6th Cir. 1983). Recently, EPA argued to the Supreme Court that any discharge of navigable waters into navigable waters is not the addition of a pollutant. Although it did not rule on the argument directly,the Supreme Court may have cast doubt on that view. See South Florida Water Management District v. Miccosukee Tribe, 124 S. Ct. 1537, 1544.45 (2004). A diversion from one stream to another may constitute the "addition" of pollutants to the second stream and does require a NPDES permit. Catskills Mountains Chapter of Trout Unlimited v. City of New York, 273 F.3d 481 (2d Cir. 2001); DuBois v. U.S. Dept. of Agriculture, 102 F.3d 1273 (1st Cir. 1996) (water used for making artificial snow ran off into different stream). The discharge of contaminated groundwater associated with coalbed methane gas extraction is the discharge of a pollutant. Norther Plains Resource Council v. Fidelity Exploration&Development Co., 325 F.3d 1155 (9th Cir. 2003). C. The definition of"point source" is similarly broad, including "any Chapter VI,Section A 3 Clean Water Act Notes Introduction In the Clean Water Act, Congress announced a national goal that"the discharge of pollutants be eliminated by 1985"and an interim goal that all waters of the United States would be fishable and swimmable by 1983. CWA § 10l(a)(1), (2). The Clean Water Act relies on three principal mechanisms to achieve improvement in water quality: 1. a permitting program limiting discharges of pollution into surface waters; 2. a program for identifying water bodies where water quality is problematic and limiting the sources of pollution to such water bodies; and 3. a grant and loan program for the upgrading of publicly owned sewage treatment facilities. Many different types of sources posing specific water pollution problem— including the storm water runoff program, of particular interest to the Corps—fall within the general pollution discharge permitting program. I. Scope of pollution discharge permitting progress A. The National Pollutant Discharge Elimination System (NPDES) program applies to all discharges of pollutants from point sources into navigable waters. [§§ 301, 402 and 502(12)] B. What is a"discharge of a pollutant?" 1. The definition of"pollutant" is very broad. It includes virtually any physical substance, including munitions. See Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). Heat is an example of a non-physical substance that is with the definition of"pollutant"that is covered by the Act. Concrete, sand and paint chips that fall into a bay during transport are"pollutants" whose discharge requires a permit. United States v. West Indies Transport, 127 F.3d 299 (3d Cir. 1997). Aerial discharges of pesticides can be the discharge of pollutants even if the application complies with federal pesticide laws. No Spray Coalition, Inc. v. City of New York, 351 F.3d 602 (2d Cir. 2003);League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). Chapter VI, Section A 2 A. The Clean Water Act Topic Learning Objectives: At the conclusion of this session, students will be able to identify when an NPDES permit is required and the basic requirements the NPDES permit imposes. ACRONYMS you will encounter in this topic are: BAT Best Available Technology BCT Best Conventional Technology BOD Biochemical Oxygen Demand • MEP Best Management Practices BPJ Best Professional Judgment BPT Best Practical Technology CWA Clean Water Act EPA Environmental Protection Agency FDF Fundamentally Different Factor NPDES National Pollutant Discharge Elimination System NSPS New Source Performance Standard POTW Publicly Owned Treatment Works TMDL Total Maximum Daily Load WQS Water Quality Standard Related topics are included in these other topics: 404 Permits, The Clean Air Act, Regulatory Enforcement Additional readings to supplement the instruction are: Clean Water Act Deskbook, Environmental Law Institute, Environmental Law: Air and Water, William Rodgers Clean Water Act Notes interstate commerce, including those from which fish could be taken and sold in interstate commerce. In Solid Waste Agency of Northern Cook Cy. v. United States Army Corps of Engineers, 531 U.S. 159 (2001), the United States Supreme Court took a relatively narrow view of"waters of the United States"with respect to the part of the Corps regulatory definition addressing migratory birds. The Court said that Congress had not clearly stated an intent to subject waters to federal regulation because of use by migratory birds, and refused to allow the EPA to do so as an interpretation of the statute. The Court left open whether Congress could have asserted Commerce Clause jurisdiction based on the use of waters by migratory birds, if it had spoken more clearly. So the parameters of Commerce Clause jurisdiction remain unclear. Also, Solid Waste Agency was a 5 -4 decision, suggesting that a change in the Court's composition or a different set of facts might produce a different result. The appellate decision in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), is still relevant to the Commerce Clause issue. That court invalidated a regulation extending the jurisdiction of the Clean Water Act to wetlands that"could"be involved in interstate commerce. The court suggested that the reliance upon such a potential effect on interstate commerce would exceed Congressional power under the Commerce Clause. E. Discharges to Groundwater The EPA now takes the position that discharges to groundwater are not within the federal NPDES permitting scheme. Court are split on this issue. In any event, some state permitting schemes incorporate discharges to groundwater, whether or not federal law requires them to. F. Administration of the NPDES Permit System NPDES permits issued under CWA § 402 have several important standard features. In general, they are not supposed to last more than five years and each re-issuance of the permit is supposed to be more stringent than the last. CWA §§ 402(a)(3), 402(b)(1)(B), 402(o). Most states have received authorization from the EPA to operate the NPDES permit system within their state, with EPA acting only in a back-up capacity. State permit programs must be as stringent as the federal program. In states that are not authorized to administer the NPDES program,the permitting Chapter VI, Section A 5 Clean Water Act Notes authority is EPA's Regional Office. Many of EPA's actions under the CWA are exempt from NEPA review. CWA § 511(c)(1). The CWA also allows Indian tribes to take over NPDES permitting within their reservations upon authorization by EPA, and a few have done so. II. Limits on Pollution from Industrial Dischargers A. Existing Dischargers 1. The CWA established a phased approach in which dischargers were first required to install the best practical technology ("BPT") and then the best available control technology that is economically achievable ("BAT"). The deadline for BAT has passed. § 301(b). EPA has promulgated effluent discharge limitations for more than 50 categories of industrial activity. 2. BAT is now required for all toxics and non-conventional pollutants. BAT does not allow a cost/benefit test. Rather, EPA is only to determine whether the technology is economically achievable for the relevant industrial category as a whole. 3. Best conventional technology("BCT") is used for conventional pollutants (e.g. BOD,pH, and suspended solids) —This standard falls somewhere between BPT and BAT. 4. BPT is the starting point and the question is whether a category of sources can achieve more reduction at a reasonable cost. 5. If EPA has not set nationally applicable standards for a particular category of industry,the permit issuer is required to exert its "best professional judgment" ("BPJ") regarding what the standards will be. 40 C.F.R. § 125.3(3)(2)and (d). 6. BPT, BCT, and BAT are all subject to a"fundamentally different factors variance" ("FDF") (now codified at § 301(n)), which allows for a finding that, in setting the uniform limitation, EPA did not consider the full range of current practices. It is as though a new subcategory was required. 7. Section 301(c) allows individual sources to apply for a variance from BAT based upon affordability concerns. Under no circumstances, however, will affordability justify Chapter VI,Section A 6 ' Clean Water Act Notes the application of less than the BPT requirements. This variance is rare. B. New Sources 1. New Sources in certain industrial categories are subject to distinct discharge limits called New Source Performance Standards (NSPS). These are based on BADT—Best Available Demonstrated Technology. § 306. Theoretically, this standard requires even less consideration of cost than BAT. 2. No variances are available based on site specific circumstances or affordability. 3. New sources are protected from requirement to upgrade their technology for a period of ten years. 4. NEPA applies to an EPA decision to issue a § 402 permit to a new source. CWA § 511(c)(1). C. Pretreaters - § 307. 1. Pretreaters are those who discharge into a POTW system instead of directly into the navigable waters. 2. While they need not have permits,pretreaters must meet roughly the same technological standards as direct dischargers. EPA sets these standards for both existing and new sources. 3. Pass Through and Interference—40 C.F.R. § 403.5 bars pretreaters from introducing into a POTW any pollutants that "pass through"the POTW or"interfere"with its operation. 4. Removal Credits-Section 307 (b) (1) authorized EPA to establish a"removal credits"program through which pretreaters get credit for treatment provided by their POTWs',thus reducing the pretreaters' treatment requirements. The effectiveness of this program was curtailed by the fact that most pretreaters had installed the necessary treatment technology by the time EPA developed sludge management standards, which were a statutory precondition to the program's effectiveness. Chapter VI, Section A 7 Clean Water Act Notes 5. The major difference between pretreaters and direct dischargers is that pretreaters are regulated in the first instance by the local publicly owned treatment works (POTW), not the state or EPA. D. Other Sources Subject to NPDES Permitting 1. Cooling waters and non-contact wastewaters 2. Sewage sludge, for various types of disposal, including use on land, disposal on land, and incineration 3. Concentrated Animal Feeding Operations(CAFOs)such as industrial-scale hog and poultry farms 4. Aquatic animal production facilities. The Ninth Circuit has held that a mussel harvesting facility which did not require any artificial feeding (the mussels derived all of their food naturally from the surrounding water) did not require an NPDES permit. Association to Protect Hammersley, Eld& Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002). 5. Aquaculture facilities 6. Silvicultural activities that cause water pollution 7. "Mountaintop removal" The Fourth Circuit has held that this activity can be subject to § 404, rather than § 402. Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (9th Cir. 2003). This decision reversed a decision of a district court which held that this activity should be regulated under § 402. 8. Cooling water structures for power plants, CWA § 316(b). E. Specialized Discharge Criteria 1. Discharges into the ocean 2. Thermal discharges F. General Permits 1. As an alternative to individual NPDES permits the Chapter VI, Section A 8 • Clean Water Act Notes permitting authority may in its discretion issue general permits. 40 C.F.R. § 122.3(d). See Natural Resources Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (general permits allowed under the Clean Water Act). General permits are typically written to cover a category of discharge or sludge use or disposal practices within a particular geographic area. General permits are also often used to regulate storm water discharges. 2. Most CWA general permits require submission of a written notice of intent in advance. There may be a waiting period, a specified commencement date, or requirement of acknowledgment before commencing the activity. The permitting authority may require an application for individual permit instead of allowing discharge under a general permit. G. Effect of a Permit 1. Generally speaking, the permit serves as a shield in enforcement actions. Compliance with a permit is deemed to constitute compliance with the Act. § 402(k). 2. Permits may be modified during their effective life or revoked and reissued. 40 C.F.R. § 122.62. 3. Permits generally last for 5 years, and their limitations can be narrative rather than numerical. III. POTWs A. The basic scheme is very simple. Section 301 (b)(1)(B) required POTWs to achieve what are referred to as "secondary treatment" levels by July of 1977. B. There used to be a second tier of cleanup standards, comparable to BAT, that were to be achieved by 1983. This was referred to as "tertiary treatment." But this requirement was eliminated in 1981. C. Secondary treatment is defined by the establishment of numerical values—at 40 C.F.R. § 133.102—for three parameters: BOD, suspended solids, and pH. D. Combined Sewer Systems About 950 older cities and towns have "combined sewer systems" Chapter VI,Section A 9 Clean Water Act dotes (CSSs) whose pipes convey a combination of sanitary waste and storm water runoff to a POTW. In times of heavy precipitation, these systems are designed to overflow, discharging untreated sewage directly into surface waters. Such combined sewer overflows (CSOs) cannot be eliminated in the short term. As point sources, CSSs require a NPDES permit. Minimum technology controls to manage CSOs are required, as is a long range control plan. Permits are written based on BPT, and may contain only narrative water quality standards. They are nevertheless enforceable against non-complying POTWs in citizen suits. Northwest Envt'l Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995). IV. The Storm Water Control Program A. In many instances the runoff created by storm water passes through "point sources" on its way to navigable waters. These sources (e.g., parking lot drains and entire stormwater drainage systems) historically were underregulated under the CWA, although EPA always asserted authority to issues permits. Yet polluted storm water plays an important role in degrading water quality. B. In 1987, Congress enacted § 402(p) of the Clean Water Act, directly addressing storm water discharges for the first time. This provision makes clear that all storm water based point sources eventually must be regulated under the NPDES system. C. The timing and substance of the requirements vary depending on the category of the storm water discharge and the amount of land involved. Phase I of the storm water regulatory program addressed discharges from industrial systems (including construction sites) involving more than five acres, and from municipal systems serving populations of 100,000 or more. Phase II was addressed by EPA regulations in 1999. 64 Fed. Reg. 67,722 - 68,852 (Dec. 8, 1999). These new regulations impose permit requirements on industrial sites (including construction sites) of between one and five acres and municipal sites serving less than 100,000 people. Discharges that have to be regulated to comply with total maximum daily load (TMDL) requirements are also included. Most of these regulations have been upheld. Environmental Defense Center v. USEPA, 344 F.3d 832 (9th Cir. 2003). 1. Discharges associated with industrial activity a. Definition—EPA has defined this term to include Chapter VI, Section A 10 Clean Water Act Notes discharges "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." 40 C.F.R. § 122.26(b)(14). EPA's definition lists eleven broad types of activities that qualify as industrial activity, including construction activities that result in the disturbance of one acre or more of land, and the operation of landfills and recycling facilities (including scrap metal yards, automobile junkyards, and the like). b. Federal, state and municipality-owned or operated industrial facilities are included in the permit requirement. 40 C.F.R. § 122.26(b)(14). c. Excluded from the permit requirements is storm water runoff from facilities separate from a permittee's industrial activity—such as office buildings and associated parking lots—so long as the drainage from the excluded areas does not mix with storm water from the industrial areas. 40 C.F.R. § 122.26(b)(14). d. The regulations promulgated in 1999 make available an exclusion to the permit requirement where the discharge is composed entirely of storm water runoff and there is no exposure of the water to industrial activities or materials. 40 C.F.R. § 122.26(g). This exception is not available for construction activities. 40 C.F.R. § 122.26(g)(3)(i). e. Group application process rescinded Prior to mid-2000, storm water dischargers had the option of filing for group permits. This approach has now been rescinded, replaced by an expansion of the general permit procedure to allow more than one sector to be addressed in a single general permit. 65 Fed. Reg. 30886, 30889 - 30890 (May 15, 2000). f. Timing and contents of applications i. For existing large industrial sites, applications were due October 1, 1992. Chapter VI, Section A 11 • Clean Water Act Notes ii. For existing industrial sites between one and five acres,the deadline for individual permit applications is March 8, 2003. 40 C.F.R. § 122.26(e)(1)(ii). iii. For new industrial sites, the application for a new discharge permit must be made at least 180 days before the facility commences industrial activity (90 days for small construction activity). 40 C.F.R. § 122.21(c)(1). iv. The information required for an individual application is quite extensive. 40 C.F.R. § 122.26(e). g. Substance of permit requirements CWA § 402(p)(3)(A) indicates that permits for storm water discharges associated with industrial activity shall meet all applicable requirements under § 301, which would include both technology- and water-quality based requirements. Permits will also typically include a site specific management plan. 2. Municipal Separate Storm Sewer Systems (MS4s) a. Jurisdiction i. Large MS4s—those serving populations of 250,000 or more—were to complete their permit applications by November 16, 1992. Medium MS4s—those serving populations of between 100,000 and 250,000—were to complete their permit applications by May 18, 1993. ii. Small MS4s are those that are not large or medium. They are regulated pursuant to 40 C.F.R. § 122.30 - 122.37. They must operate under a NPDES permit when • they are located within an urbanized area as determined by the latest decentennial census; or Chapter VI, Section A 12 • Clean Water Act Notes • they have been designated by the permitting authority, either on the basis of their effects or potential effects on water quality or their significant discharge of pollutants, or in response to a petition. iii. States are required to designate small MS4s whose discharges have or may result in exceedances of water quality standards, impairment of designated uses, or other significant water quality impacts. They must do so by December 9, 2002 (December 9, 2004 is the state has a statewide watershed management plan). 40 C.F.R. § 123.35(b)(3). iv. An MS4 serving a population of less than 1000 may obtain an exemption from the permit requirement. 40 C.F.R. § 122.32(d). An MS4 serving a population of less than 10,000 may obtain an exemption from the permit requirement if water quality is not impaired by the runoff, but this waiver must be reviewed at least once every five years. 40 C.F.R. §§ 122.32(e), 123.35(d)(1), (6). The state must issue these exemptions by December 9, 2002,unles it has a statewide watershed management plan. 40 C.F.R. § 123.35(d)(5). v. A small MS4 in the same urbanized area as a large or medium MS4 may seek to be joined as a limited co-permittee on the other MS4 permit. 40 C.F.R. § 122.35. vi. Separate storm sewers serving very small discrete areas, such as a single building, do not require permits. 40 C.F.R. § 122.26(b)(16)(iii). vii. Systems combining storm water and sewage are Combined Sewer Systems (CSSs) and are regulated elsewhere within the NPDES program. c. Small MS4s may be owned by a government body Chapter VI,Section A 13 • Clean Water Act Notes or a tribe. They may include military bases, large hospitals,prisons, highways and so on. 40 C.F.R. § 122.26(b)(16). c. Small MS4s must apply for coverage under a NPDES permit by March 10, 2003, unless the permitting authority requires an earlier date. 40 C.F.R. § 122.33(b)(2)(ii), (c)122.33(c)(1). For an MS4 in a jurisdiction of less than 10,000, if the state has a watershed management plan the state may develop a phase-in program with permits issued no later than March 8, 2007. 40 C.F.R. § 123.35(d)(3). d. EPA recommends that small MS4 permitting be accomplished with general permits, but leaves the final decision to the permitting authority. e. A regulated small MS4 may either i. Develop, implement and enforce a storm water management program with the prescribed minimum contents, or ii. Apply for a permit under the same regulations as large and medium MS4s. f. The CWA requires MS4s to reduce the discharge of pollutants to the maximum extent practicable. CWA § 402(p)(3)(B)(iii). The permitting authority may impose management practices, control techniques, and design and engineering standards. See 40 C.F.R. § 122.34. MS4 permits need not include numerical effluent limitations. Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999). See 40 C.F.R. § 122.34(a) (preference for narrative effluent standards). 3. Storm Water Discharges Associated with Construction Activity Technically, construction activity is a subcategory of industrial activity, but it has some separate regulatory requirements. Chapter VI,Section A 14 • Clean Water Act Notes a. "Construction activity" includes clearing, grading and excavating. b. Storm water runoff from "construction activity" of five acres or more must obtain a permit. This activity applies to construction activity of less than five acres if it is part of a common plan of more than five acres, or if the runoff would contribute to the violation of water quality standards or contribute significant pollutants to waters of the United States. c. "Small construction activity"is regulated for the first time as a result of the 1999 EPA regulations. It is defined as a disturbance of between one and five acres. And an even smaller disturbance will trigger the permit requirement if it is part of a larger common plan that would disturb one to five acres. 40 C.F.R. § 122.26(b)(15)(i). d. Exemptions and Waivers i. Permit unnecessary to protect water quality. ii. Construction will occur during period of low rainfall erosivity. iii. For small construction projects, routine maintenance. e.. Application requirements are set out in 40 C.F.R. § 122.26(c). A general permit is available for many types of industrial activity in most of the EPA Regions, rather than an individual permit. 65 Fed. Reg. 64746 (Oct. 30, 2000), corrected, 66 Fed. Reg. 1675 (Jan. 9, 2001). An application for a permit must be filed at least 90 days before construction is to commence. 40 C.F.R. § 122.21(c)(i). f. Substantive requirements EPA has not yet standardized construction and post- construction Best Management Practices. Currently they are at the discretion of the permittee. EPA is developing a"toolbox"to assist states, municipalities and others involved in the Phase II Storm Water program. It will include Chapter VI, Section A 15 Clean Water Act Notes fact sheets, guidance, a menu of BMPs,and information clearinghouse, and so on. It will be available at <www.epa.gov/owm/sw/toolbox>. V. The Clean Water Act includes several regulatory schemes based on Water Quality Standards (WQS). These can be thought of as back-ups to the technology-based standards imposed for NPDES effluent standards. The most important uses of the WQS are in the Total Maximum Daily Load (TMDL)program;the related individual control strategy(ICS)program for toxic pollutants; and the state certification program for federally issues permits involving a discharge. The WQS is also linked to controls on non- point sources and to various planning requirements contained in the CWA. Water Quality Considerations A. Establishment of water quality standards. 1. The states, or tribes that are qualified, first decide on the use of each water body and the criteria necessary to protect that use. a. Section 303(c)(2)(A) requires that the standards consider the water body's use and value for public water supplies,propagation of fish and wildlife, recreational purposes, etc. b. EPA has clear review under § 301(a) and (c). (1) EPA's regulations require states to protect uses not only if they are existing uses, but also if they are attainable. 40 C.F.R. § 131.10. c. States have only very limited ability to eliminate designated uses. (1) There are only narrow circumstances in which designated uses that are not existing uses may be removed. The most significant of these is where controls more stringent than BPT, BCT, and BAT would result in substantial and widespread economic and social impact. 40 C.F.R. § 131.10(g) (2) States may not eliminate existing uses. 40 C.F.R. § 131.10(h) Chapter VI, Section A 16 • Clean Water Act Notes The NPDES control strategy has two prongs. First, it imposes technology- based requirements designed to ensure a uniform degree of control within each industry. Second, it requires the impositions of such further controls as are necessary to ensure that the receiving water maintains compliance with water quality standards. Chapter VI, Section A 17 Clean Water Act Notes 2. States also set the water quality criteria necessary to support the uses chosen. These are typically based on the EPA guidelines. See 40 C.F.R. § 131.11. EPA reviews and approves the criteria adopted by the state. B. The Antidegradation Policy -40 C.F.R. § 131.12 [now codified at § 303(d)(4)(B)] 1. Existing uses and the water quality necessary to maintain them shall be sustained; 2. If the water quality is better than the level necessary to support propagation of fish, shellfish, wildlife, and recreation, it shall still be maintained at that level unless the state finds, after going through a public process,that allowing lower water quality is necessary to accommodate important economic or social development; and third 3. Where high quality waters represent an outstanding national resource, they must be maintained. C. Implementation of WQS 1. § 301(b)(1)(C) requires permit users to impose any more stringent limitations—beyond technology-based limitations— such as are necessary to achieve compliance with water quality standards. a. EPA's regulations bear out this scheme by requiring the permit issuer to determine whether any discharges to be permitted have the reasonable potential to cause or contribute to water quality standard violations. 40 C.F.R. § 122.44(d). Moreover, 40 C.F.R. § 122.4(d) specifically precludes the issuance of any permit where its conditions cannot ensure compliance with water quality standards. b. Many NPDES permits contain a simple narrative prohibition precluding the discharger from discharging any pollutants that cause or contribute to violations of water quality standards. Revising an earlier position the Ninth Circuit has held that narrative conditions standing above are enforceable in a citizen suit. Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995). Chapter VI, Section A 18 • Clean Water Act Notes 2. § 303(d)—TMDLs—this section required the states to: identify those waters for which the technology-based limitations are not going to achieve water quality standards, adopt priority rankings, and finally, for each waterbody, establish the TMDL for each offending pollutant. This requires a two-step process: • Establish the total amount of pollution that the water body could assimilate and remain in compliance with water quality standards; and • Allocate that load to known sources, including non- point sources—reserving some amount for new sources or to account for scientific uncertainty. a. Tribal authority over water quality, made clear by CWA §518(e), is nevertheless problematic. Non-tribal members have been concerned that their holdings would be regulated to a Tribe's tough standard. The Ninth Circuit has held this to be an appropriate effect of the statute's grant of jurisdiction. Montana v. U.S. Environmental Protection Agency, 137 F.3d 1135 (9th Cir. 1998). See also Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996) (upholding EPA authorization of tribe's administration of its own water quality standards and consequently imposing downstream tribe's stricter standard on upstream users). b. If it worked,the TMDL program would be the centerpiece of water quality regulation. It requires every state (and tribe)to assess regularly the quality of all waters within the state (or reservation), and to take action to improve water quality that falls below a minimum. It includes non-point sources, which in many instances are the most significant remaining sources of pollution. In fact, a TMDL can be established for a waterbody that is impaired solely by nonpoint source pollution. Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002). It also allows state and tribes to go beyond the BAT/NSPS/BCT/secondary treatment levels of the NPDES program in order to protect water quality. c. However,the TMDL program was ignored and all but abandoned both by the state and by EPA. It has required Chapter VI, Section A 19 Clean Water Act 1\1. otes a decade and a half of citizen suits to force EPA to take this program seriously. In 1999, EPA apparently turned around, issuing two proposed rules addressing this program. This change of heart mobilized agribusiness and some other agencies opposed to the TMDL program. In the summer of 2000 EPA and Congress engaged in a race. EPA got its strict new TMDL final rule issued only days before Congress would have prohibited it. 65 Fed. Reg. 43,586 (July 13, 2000). Congress in turn prohibited the rule from going into effect until October 1, 2002. EPA formally withdrew the rule in 2003, leaving in place the procedures for identifying water quality impaired segments of waterways. Final Rule, Withdrawal of Revisions to the Water Quality Planning and Management Regulation, 68 Fed. Reg. 13,608 (March 19, 2003). 3. § 304(1)—A TMDL program with compliance deadlines a. The Individual Control Strategy(ICS)program, introduced in 1987, only applies to toxics. b. But other than that, Section 304(1)basically reestablishes the TMDL program with deadlines and forced EPA action if the deadlines are not met. It required states to identify the toxic hotspots, to identify the sources, and to establish Individual Control Strategies for bringing those sources into compliance with altered permit conditions within three years after the approval of the strategy. 4. The Clean Water Act provides states another mechanism to protect their water quality in CWA §401. a. Any applicant for a federal license or permit"to conduct any activity including, but not limited to,the construction or operation of facilities, which may result in any discharge into the navigable waters,"must provide the licensing or permitting agency a certificate from the state in which the discharge originates. The certificate addresses both effluent limitations and water quality. It becomes a permanent part of the license. The federal agency may not alter it, and must include in the permit or license whatever conditions the state imposes. When the state refuses to issue the certification, the federal Chapter VI, Section A 20 • Clean Water Act Notes authority may not issue the permit or license. b. This gives the state a toehold in several federal permitting schemes, including i. federally issued NPDES permits ii. federally issued dredge and fill permits iii. hydroelectric licenses under the Federal Power Act,Alabama Rivers Alliance v. FERC, 325 F.3d 290 (D.C. Cir. 2003) (FERC acted improperly in not requiring 401 certification for turbine replacement that would lead to an increase in water volume) iv. licenses for nuclear power plants that involve releases of cooling water Federal Discharge permits that result only in non-point discharges, such as grazing permits, do not trigger the Section 401 consultation requirement. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998) c. The profile of Section 401 was raised by PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994). The case allowed Washington state to impose an instream flow condition on the design of a hydroelectric project, even though the requirement made the project uneconomic. d. Certification under Section 401 is obtained from the state and is reported to the federal agency. i. Federal agencies often have specific regulatory procedures to deal with the details of Section 401 certification. ii. State agency decisions over whether to certify and what conditions to impose are matters of state environmental law. They must be challenged through the relevant state administrative and judicial process. States have differed considerably in how broadly they interpret the authority granted to them by CWA § 401. VI. Nonpoint Source Pollution Nonpoint source pollution is an apparently intractable problem. It includes Chapter VI, Section A 21 Clean Water Act Notes runoff from agricultural, urban and industrial areas. In some places it may account for more than half of the remaining pollution load finding its way into surface waters. The TMDL scheme, which might address non-point sources, is not functional in most parts of the country. The various planning programs within the CWA are ineffective. States have a variety of techniques at their disposal outside the CWA scheme, but they too are reluctant to interfere with what are often basic land uses in order to improve water quality. Topic Summary Points • The Clean Water Act regulates discharges of pollutants from point sources to navigable waters. Discharge without a permit is prohibited. • Many types of sources of pollution, in addition to the prototypical end-of- pipe, have been treated as point sources. • Effluent limitations based on what is technologically feasible have been promulgated for various categories of industry, as well as publicly-owned treatment works and other categories of point source. • Most states have received authorization from EPA to operate the NDPES permit program, with EPA setting minimum standards and backing up state enforcement. • Storm water runoff requires a NPDES permit when from industrial sites, including construction activities of greater than one acre, and small municipal systems. These permit requirements apply to facilities owned by the government. • The Clean Water Act imposes further controls on polluters in order to achieve and maintain water quality standards. States set the water quality standards water body by water body, with approval from EPA. • CWA Section 401 requires applicants for federal permits or licenses involving discharge into water to obtain state certification that the licensed project will comply with state water quality standards. This gives the state considerable control over certain types offederally permitted actions. Chapter VI,Section A 22 NEW HAMPSHIRE Pal Environmental Partial List of Regulations Applicable to Motor Vehicle Salvage Yard* Services Updated 6-17-2009 � • 1M le Statute Implementing Authority General Scope of Regulation Administrative Rules Municipality Specifies requirements for"junkyards"to obtain a certificate of location approval and an RSA 236:111-129 [Contact the appropriate town office] annual operating license from the town,to address local land-use, aesthetic,and nuisance o concerns. Note: Additional requirements may apply under local zoning. N.H. Department of Transportation(NHDOT) Specifies requirements for"junkyards" located within 1000 feet or visible from certain federally RSA 236:90-110 (603)271-8124 funded highways to obtain a certificate of location approval and annual operating license from state transportation officials. RSA 261 N.H. Department of Safety(NHDOS) Specifies registration provisions for new and used motor vehicle dealers, and addresses title/ (603)271-2330 anti-theft provisions applicable to vehicles being salvaged. RSA 147-A N.H. Department of Environmental Services Specifies requirements for managing hazardous waste(used oil, solvents, spent fuel, etc.) Env-Hw 100-1100 (NHDES) and universal waste(e.g., batteries, antifreeze, and mercury-containing devices). (603)271-2942 RSA 149-M NHDES Specifies requirements for managing solid waste(e.g.,tires, scrap metal, plastics, glass, Env-Sw 100-2100 (603)271-2925 asbestos,dust, paper, wire/insulation, etc.) RSA 146-A NHDES Specifies requirements for installing, operating, and maintaining aboveground storage tanks. Env-Wm 1402 (603)271-6058 m RSA 146-C NHDES NEnv-Wm 1401 (603)271-3644 Specifies requirements for installing, operating, and maintaining underground storage tanks. RSA 146-A, RSA 146-C, NHDES Specifies requirements for managing contaminated sites, including requirements for reporting RSA 147-F&RSA 147-A (603)271-3644 and cleaning up discharges of oil, including gasoline. Env-Or 600 RSA 485-C NHDES Specifies certain groundwater protection requirements, including: Existing motor vehicle Env Or 700 (603)271-2999 salvage yards located in a Class GAA wellhead protection area must obtain a groundwater release detection permit. Statute prohibits new yards in GAA protection areas. RSA 485-C NHDES Specifies limitations for discharging to groundwater, groundwater discharge permit and Env-Wq 402 (603)271-2858 registration requirements, and floor drain and holding tank requirements. RSA 485-C NHDES Specifies requirements for handling and storing regulated substances, including many motor Env-Wq 401 (603)271-2513 vehicle fluids. RSA 277& RSA 281-A N.H. Department of Labor(NHDOL) Specifies requirements for providing and maintaining a safe working environment for (603)271-3176 employees. U.S. Environmental Protection Agency Specifies requirements for obtaining a storm water management permit applicable to 40 CFR 122 (US-EPA) (617)918-1615 discharging surface runoff from a point source(e.g., storm drains, culverts,ditches,swales). Section 609, Clean Air US-EPA Act 1-800-296-1996 Specifies requirements for evacuating and recycling Freon and other refrigerants. a) 40 CFR 63 US EPA Specifies requirements for operating secondary aluminum production furnaces. (617)918-1314 U.S. Occupational Safety&Health Specifies requirements for providing and maintaining a safe working environment for 29 CFR 1910 Administration (OSHA) (603)225-1629[Concord, NH office] employees. .Copies of state statutes(RSAs)and administrative rules can be accessed on-line at www.nh.gov and by' contacting the State Library Reference Desk at(603)271-2239. To obtain a no exposure exclusion,the operator must: cl ° The Florida NPDES • Meet the criteria for no exposure ea cm p; �` • Complete allo Exposure Certification for Exclusion Stormwater from NPDES Stormwater Permitting o (DEP Form 62-620.910(17)) m Permitting 1 r g • Submit the form along with a certification fee of$200 to the Program for o ' 2 NPDES Stormwater Notices Center • Re-certify to a condition of no exposure every 5 years. c°� " C = NZ cv If exposure occurs(or is anticipated to occur)at the facility,the c� +cI exclusion is no longer valid and permit coverage must be obtained pi Industrial immediately. co Where Can f Find More informationP Activity DEP's Web site provides more information on program '■ pe coverage and requirements,useful Web links,and electronic el versions of the MSGP,all regulations and forms cited herein, tr- el and SWPPP guidance. In addition,the NPDES Stormwater Notices Center provides hardcopies of permits and forms. NPDES Stormwater Section Florida Department of Environmental Protection 2600 Blair Stone Road,MS#2500 Tallahassee,FL 32399-2400 (850)921-9904 '1 NPDES-stormwater @dep.state.fl.us www.dep.state.fLus/water/stormwater/npdes/ A ! 1 sone NPDES Stormwater Notices Center *x a a 1 Florida Department of Environmental Protection S i't-, - 2600 Blair Stone Road,MS#2510 Tallahassee,FL 32399-2400 (866)336-6312 (toll-free)or(850)297-1232 Please Note The certification and application fees are subject to change—always refer to the most current version of Rule 62-4,050(4)(d),F.A,C.to confirm the amount before submitting payment. Make checks payable to the Florida Department of Environmental Protection. 1t OtECION ffFLO' •A ,, __ PRINTED ON RECYCLED PAPER 09/01 girK=t'vr:',‘"*---"—- - ". ' -i- • i What is Florida's NPDES Stormwater Permitting Heavy manufacturing(e.g.,ship building and repair,chemical Now be I Obtain Copies of the MSGP and NO Program for Industrial Activity? manufacturing,wood products manufacturing) Mining/oil and gas exploration The MSGP and NOI are available on the DEP Web site or from In October 2000,the U.S.Environmental Protection Agency(EPA) the NPDES Stormwater Notices Center. authorized the Florida Department of Environmental Protection Hazardous waste facilities (DEP)to implement the National Pollutant Discharge Elimination Landfills or open dumps The Web site lists the industrial activities included in each System(NPDES)stormwater permitting program in the State of Recycling facilities(e.g.,salvage yards,auto junkyards,battery sector and allows downloading of permit language by sector. Florida(with the exception of Indian country lands). The program reclaimers) The Notices Center also provides permit language by sector regulates point source discharges of stormwater runoff from certain industrial facilities. The operators of regulated industrial facilities Steam electric power generation facilities (in hardcopy)and can assist industrial operators with Transportation facilities(e. trucking,airports,marinas) identifying their applicable sectors. must obtain an NPDES stormwater permit and implement p g• g. appropriate pollution prevention techniques to reduce Treatment works(e.g.,domestic wastewater treatment plants) contamination of stormwater runoff. Large construction sites(disturbing 5-plus acres). This Now o I Obtain Permit Coverage? category is permitted separately;therefore,the permit and fee To obtain permit coverage,follow these steps: Florida adopted the Federal stormwater general permit for information presented below does not apply industrial activities(comprising the original September 29,1995, Light indust ry(e.g.,printing,warehousing) • Read the permit language a pp licable to your sector issuance and subsequent modifications)as specified in Rule 62- 621.300(5)(a),EA.C.and operates the permit as the State of • Develop and implement your SWPPP Florida Multi-Sector Generic Permit for Stormwater What Noes the NESGP 1equireP • Complete an NOI in its entirety Discharge Associated with Industrial Activity(MSGP). • Submit the NO1 along with an application fee of$500 to The MSGP divides regulated industrial activities into 30 sectors of Most regulated facilities are eligible for coverage under the MSGP; the NPDES Stormwater Notices Center related activity and specifies both general and sector-specific however,some facilities may have to obtain an individual permit as requirements for each. In brief,the MSGP requires the following: • Reapply for coverage every 5 years. specified in Chapter 62-620,F.A.C.(contact DEP for more information). • An MSGP Notice of Intent(NOI)(DEP Form The Notices Center will send an acknowledgement letter after 62-621.300(5)(b))must be submitted to DEP. receiving and processing your complete NOI and fee. Permit Which Industrial Activities Are Regulated tinder the coverage may be terminated by meeting the eligibility ProgramP • A Stormwater Pollution Prevention Plan(SWPPP), which must be kept onsite. In part,the plan must include: requirements for termination specified in the MSGP and by Florida's permitting program regulates industrial activities that meet — A site evaluation of how and where pollutants maybe submitting a Notice of Termination(NOT)(DEP Form both of the following criteria: mobilized by stormwater and discharged 62-621.300(6))to the Notices Center. Result in a discharge of stormwater to surface waters of the — A site plan for managing stormwater runoff What Is the Industrial No Exposure Exclusion? State or into a municipal separate storm sewer system(MS4), — Identification of appropriate controls to reduce and stormwater pollution(e.g.,timely cleanup of spills, Any regulated industrial activity(except Category 10 activity)may Fall under any one of the 11 categories of industrial activities covering exposed materials,installing a detention pond) be excluded from the requirement to obtain an NPDES identified in 40 CFR 122.26(6)(14). — A maintenance,visual monitoring,and inspection stormwater permit if the facility operator can certify to a The 11 categories are defined using both narrative descriptions of schedule condition of"no exposure"at the facility. No exposure means the activities and Standard Industrial Classification(SIC)codes. — A recordkeeping process that all industrial materials and activities are protected by a Below are simplified descriptions of each category: storm-resistant shelter that prevents exposure to precipitation p p g ry: Analytical monitoring and reporting(not required of all and/or runoff(with some exceptions). The detailed criteria for Facilities subject to Federal effluent limitations or new source regulated facilities). Industry-specific Discharge Monitoring Report(DMR)forms,to be submitted to DEP, qualifying for the no exposure exclusion are outlined in Rule performance standards 62-620.100(2)(o),F.A.C. are available on the DEP Web site. VisR BErs Web site at www.depstateAssiwateristormweterinedesi CHAPTER 62-710 USED OIL MANAGEMENT 62-710.100 Intent(Repealed) 62-710.200 Definitions(Repealed) 62-710.201 Definitions 62-710.210 Documents Incorporated by Reference. 62-710.300 Applicability 62-710.400 Prohibitions(Repealed) 62-170.401 Prohibitions 62-710.500 Registration and Notification 62-710.510 Record Keeping and Reporting 62-710.520 Reporting.(Repealed) 62-710.530 Exemptions(Repealed) 62-710.600 Certification of Used Oil Transporters. 62-710.800 Permits for Used Oil Processing Facilities 62-710.850 Management of Used Oil Filters. 62-710.900 Forms(Repealed) 62-710.901 Forms 62-710.201 Definitions In addition to applicable definitions in Rule 62-701.200,F.A.C.,the following words,phrases,or terms as used in this rule,unless the context indicates otherwise,shall have the following meaning: (1)"Oily wastes"means those materials which are mixed with used oil and have become separated from that used oil.Oily wastes also means materials,including wastewaters,centrifuge solids,filter residues or sludges,bottom sediments,tank bottoms,and sorbents which have come into contact with,and have been contaminated by,used oil. (2)"Processing"means chemical or physical operations designed to produce from used oil,or to make used oil more amenable for production of,fuel oils,lubricants,or other used oil-derived products. Processing includes blending used oil with virgin petroleum products,blending used oils to meet the fuel specification found in 40 C.F.R.Part 279.11,filtration,simple distillation, chemical or physical separation and rerefining. (3)"Processor"means any person processing used oil.The term also includes any transfer facility that stores used oil for longer than 35 days at a time,any used oil marketer who receives used oil from transporters or who has at least 25,000 gallons of used oil storage capacity,and any person who blends used oil with on-specification used oil fuel or with virgin petroleum products for the purpose of producing on-specification used oil fuel. (4)"Public used oil collection center"means: (a)An automotive service facility or government-sponsored collection facility which accepts for disposal small quantities of used oil from households;or (b)A facility which stores used oil and which accepts small quantities of used oil from households. • (5)"Used oil"means any oil which has been refined from crude oil or synthetic oil and,as a result of use,storage,or handling,has become contaminated and unsuitable for its original purpose due to the presence of physical or chemical impurities or loss of original properties. (6)"Used oil transporter"means any person who transports used oil over public highways in shipments of greater than 55 gallons at one time. (7)"Used oil filter"means any device which is an integral part of an oil flow system,the primary purpose of which is to remove contaminants from the flowing oil contained within the system and which, as a result of use,has become contaminated and unsuitable for its original purpose,is removed from service,and contains entrapped used oil. (8)"Used oil filter processor"means a person who removes oil from used oil filters to prepare them for recycling.Generators of used oil filters who consolidate,drain or crush used oil filters for off-site recycling are not used oil filter processors providing the generator complies with the requirements of subsection 62- 710.850(2),F.A.C. (9)"Used oil filter transporter"means any person who transports for hire used oil filters to a used oil filter transfer or processing facility. 1 (10)"Used oil filter transfer facility"means any facility which is used to store,for more than 10 days, used oil filters which were not generated at that facility.A person who stores its own used oil filters generated at its own non-contiguous operations on its own property is not considered a used oil filter transfer facility provided the used oil filters are processed by a registered used oil filter processor. Specific Authority 403.061,403.704 F.S.Law Implemented 403.703,403.75,403.760,403.767,403.769 FS.History— New 6-9-05. 62-710.210 Documents Incorporated by Reference. (1) General provisions relating to solid waste management may be found in Chapter 62-701, F.A.C., including statements of intent, definitions, prohibitions, general permitting requirements, alternate procedures,and forms.Except where the context indicates otherwise,these general provisions apply to this chapter. (2)The Department adopts by reference 40 C.F.R.Part 279 revised as of July 1,2004,which contains the federal standards for the management of used oil. It is the intent of the Department to interpret these standards in a manner consistent with interpretations promulgated by the United States Environmental Protection Agency,except when such interpretations conflict with Florida law. (3)"On-specification used oil fuel"means any used oil which meets the requirements of 40 C.F.R.Part 279.11. Used oil fuel containing PCBs at a concentration equal to or greater than 2 ppm, but less than 50 ppm,shall be managed in accordance with 40 C.F.R.Part 761.20(e)and burned only in boilers or industrial furnaces as defined in 40 C.F.R. Part 260.10 and identified in 40 C.F.R. Part 279.61. Used oil containing PCBs at a concentration equal to or greater than 50 ppm is fully subject to the requirements of the Toxic Substances Control Act found in 40 C.F.R. Part 761. Blending used oil for the purpose of reducing the concentration of PCBs to below 50 ppm is prohibited in accordance with the provisions of 40 C.F.R. 279.10(i)and 761.20(e). (4)References in 40 C.F.R.Part 279 to 40 C.F.R.Part 262 shall mean rules adopted by the Department regarding generators of hazardous wastes;reference to 40 C.F.R.Part 263 shall mean rules adopted by the Department regarding transporters of hazardous waste;reference to 40 C.F.R.Parts 264 and 265 shall mean rules adopted by the Department regarding treaters,storers and disposers of hazardous wastes;references to 40 C.F.R.Part 266 shall mean rules adopted by the Department regarding standards for the management of specific hazardous waste;and references to Section 3010 of RCRA shall mean notification requirements of Florida Law.The above-mentioned Department rules are found in Chapter 62-730,F.A.C. (5) When the same word, phrase, or term is defined in Rule 62-710.201, F.A.C., and 40 C.F.R. Part 279 and the definitions are not identical,the definitions as given in Rule 62-710.201,F.A.C.,shall apply. (6) Unless specifically indicated otherwise, when used in any such provisions as adopted from 40 C.F.R. Part 279, United States shall mean the State of Florida, EPA shall mean the Department, and Administrator or Regional Administrator shall mean the Secretary of the Department or the Secretary's designee,where appropriate. (7) Any reference to 40 C.F.R. Parts 124 or 270 as adopted by reference in 40 C.F.R. Part 279 shall mean the permitting provisions in Chapter 62-4 or 62-730,F.A.C.,or Section 403.722,F.S. (8) Any reference to the Resource Conservation and Recovery Act of 1976 (RCRA) as adopted by reference in 40 C.F.R.Part 279 shall be construed to refer to comparable provisions of the Florida Resource Recovery and Management Act as established in Part IV of Chapter 403,F.S. Specific Authority 403.061,403.704,403.7545, 403.8055 FS.Law Implemented 403.704, 403.7545 FS.History New 6- 8-95,Amended 12-23-96,3-25-97,6-9-05, 1-4-09. 62-710.300 Applicability This section offers guidance to the regulated community on the applicability of this chapter to various types of operations and operators.It should not be read to relieve any person from applicable requirements of this rule or any other rules or statutes. 2 (1)Used oil handlers. (a)Generators shall comply with the requirements found in 40 C.F.R.Part 279, Subpart C.and must have their used oil managed only by a used oil handler which is registered with the Department,except with respect to the transportation of used oil in shipments of 55 gallons or less. (b)Mobile lube operators shall comply with the requirements found in 40 C.F.R.Part 279,Subpart C. The Department recommends that mobile lube operators who transport more than 500 gallons of used oil per year over public highways have a spill control plan and equipment in place. (c)Private and public used oil collection centers and aggregation points shall comply with 40 C.F.R. Part 279,Subpart D.They shall also meet the registration and notification and record keeping requirements found in Rules 62-710.500 and 62-710.510,F.A.C. (d)Used oil transporters and transfer facilities shall comply with 40 C.F.R.Part 279,Subpart E.They shall also comply with registration,record keeping and certification requirements found in Rules 62- 710.500,62-710.510,and 62-710.600,F.A.C. (e)Processors shall comply with 40 C.F.R.Part 279,Subpart F.They shall also meet the registration, record keeping,and permit requirements found in Rules 62-710.500,62-710.510,and 62-710.800,F.A.C. (f)Burners who burn off-specification used oil for energy recovery shall comply with 40 C.F.R.Part 279,Subpart G.They shall also comply with the registration and notification and record keeping requirements found in Rules 62-710.500 and 62-710.510,F.A.C. (g)Marketers shall comply with 40 C.F.R.Part 279, Subpart H.They shall also comply with the registration and notification and record keeping requirements found in Rules 62-710.500 and 62-710.510, F.A.C. (2)Used oil filter handlers(i.e.generators,transporters,processors and end users as defined in Rule 62-710.201,F.A.C.)shall comply with Rule 62-710.850,F.A.C. (3)Used oil storage and process tanks must meet the requirements of 40 C.F.R.Part 279.54,as well as the requirements of Chapter 62-761,F.A.C.,Underground Storage Tank Systems,and Chapter 62-762, F.A.C.,Above Ground Storage Tank Systems,as applicable. (4)Chapter 62-770,F.A.C.,Petroleum Contamination Site Cleanup Criteria,applies to discharges of used oil. Specific Authority 403.061,403.704,403.767 FS Law Implemented 403.703, 403.75,403.754,403.760,403.767, 403.769 FS.History—New 6-9-05. 62-710.401 Prohibitions (1)No person may collect,transport,store,recycle,use,or dispose of used oil,used oil filters or oily wastes except as authorized in this chapter or in Chapter 403,F.S. (2)No person may discharge used oil into soils,sewers,drainage systems,septic tanks,surface or ground waters,watercourses,or marine waters. (3)Except as provided herein,no person may mix or commingle used oil with solid waste that is to be disposed of in landfills or directly dispose of used oil in landfills. (a)Oily wastes,sorbents or other materials used for maintenance or to clean up or contain spills or releases of used oil,and soils contaminated with used oil as a result of spills or releases are not subject to this prohibition.In some cases,other Department rules,local ordinances,or landfill policies may prohibit the disposal of such materials. (b)Any person wishing to dispose of solid waste mixed with used oil in a landfill which is otherwise prohibited by this subsection may apply to the Department for approval of alternate procedures in accordance with Rule 62-701.310,F.A.C.If the basis for the request is that it is impractical to separate the used oil from the solid waste,the request may be submitted without a fee. (c)Any person who unknowingly disposes into a landfill any used oil,including used oil filters which have not been properly segregated or separated from other solid wastes by the generator,is not guilty of a violation under this subsection.This provision is applicable to landfill operators who unknowingly accept such wastes for disposal. 3 (4)Notwithstanding the provisions found in 40 C.F.R.279.10(b)(3),no person may mix or commingle used oil with hazardous substances that make it unsuitable for recycling or beneficial use. (5)Used oil shall not be used for road or pavement oiling for dust control,weed abatement,or other similar uses that have the potential to release used oil into the environment. (6)No person may store used oil in tanks or containers unless they are clearly labeled with the words "used oil"and are in good condition(no severe rusting,apparent structural defects or deterioration)with no visible oil leakage.If tanks or containers are not stored inside a structure,the contents shall be closed, covered or otherwise protected from the weather.If tanks or containers are not double-walled,they shall be stored on an oil-impermeable surface such as sealed concrete or asphalt,and must have secondary containment which has the capacity to hold 110%of the volume of the largest tank or container within the containment area. Specific Authority 403.061,403.704 FS Law Implemented 403.751 FS.History—New 6-9-05. 62-710.500 Registration and Notification (1)The following persons shall annually register their used oil handling activities with the Department using Form 62-730.900(1)(b), "8700-12FL—Florida Notification of Regulated Waste Activity," effective date January 4, 2009,which is hereby adopted and incorporated by reference. This Form can be obtained on the internet at http://www.dep.state.fl.us/waste/quick topics /forms/pages/62-730.htm or by contacting the Hazardous Waste Regulation Section, MS 4560, Division of Waste Management, Department of Environmental Protection,2600 Blair Stone Road,Tallahassee,Florida 32399-2400. (a)Used oil transporters and transfer facilities; (b)Used oil processors; (c)Used oil fuel marketers who sell used oil fuel;and (d)Used oil burners of off-specification used oil. (2) The registration form shall be accompanied by a registration fee of$100 per facility. It is not necessary to submit more than one form or fee if registering more than one activity,or if the registration is for an entire transportation fleet operating out of one facility site.The registration form and fee shall be due by March 1 of each year.The registration fee is waived for used oil processing facilities for which a permit fee was paid under Rule 62-710.800,F.A.C. (3)Upon receipt of the completed form and fee,the Department shall issue to each registered person a validated registration form which shall be valid for one year.For used oil transporters,acknowledgment of registration shall be included in the certification process of Rule 62-710.600,F.A.C.The registration shall be valid from July 1 of the year of registration or renewal until June 30 of the following year. (4) Each registered person shall display the validated registration form and identification number in a prominent place at each facility location. (5) Each public used oil collection center shall notify the Department no later than 30 days after first accepting used oil from the public on DEP Form 62-710.901(5).The Department shall acknowledge filing of the notification within 30 days of receipt. Specific Authority 403.061, 403.704 FS. Law Implemented 403.704, 403.754, 403.760 FS. History—New 2-25-85, Formerly 17-7.63, 17-7.630,Amended 1-17-90,Formerly 17-710.500,Amended 6-8-95, 12-23-96, 3-25-97, 6-9-05, 1- 4-09. 62-710.510 Record Keeping and Reporting (1)Each registered person shall maintain records on DEP Form 62-710.901(2)or on substantially equivalent forms which contain at least the same information as the Department form.These records shall include the following information: (a)The name,business address,telephone number and EPA identification number of the transporter; (b)The source of the used oil,including the name and street address of each source,and the EPA identification number of the source if the generator has one; (c)The total number of gallons of used oil received from each source,including any oily wastes which may be an integral part of the used oil shipment; 4 (d)The type of used oil received,using the type code designation found in the form instructions; (e)The date of receipt; (f)The destination or end use of used oil and oily wastes,including the name and street address of each destination or end user,the EPA identification number if applicable,and the end use code designation found in the form instructions;and (g)Documentation of halogen screening in accordance with the requirements of Rule 62-710.600, F.A.C. (2)Transporters shall maintain documentation of all shipments of used oil,including those accepted for transport as well as those refused due to suspected mixing with hazardous waste.A copy of this record shall be left with the generator. (3)A generator of used oil that transports only its own used oil generated at its own non-contiguous operations to its own central collection facility for storage prior to having its used oil picked up by a certified used oil transporter is not subject to the record keeping and reporting requirements of this section. (4)The records required by this section shall be retained for a period of three years.The records shall be kept at the street address of the registered person and shall be available for inspection by the Department during normal business hours,unless another location and inspection schedule is specified in the registration package submitted to the Department. (5)No later than March 1 of each year,each person required to register in accordance with Rule 62- 710.500,F.A.C.,shall submit an annual report for the preceding calendar year to the Department on DEP Form 62-710.901(3).The report shall summarize the records kept pursuant to this section. (6)No later than July 1 of each year,each public used oil collection center shall submit to the Department an estimate of the quantity of used oil accepted from the public during the previous calendar year.The Department shall advise each public used oil collection center of this requirement by June 1 of each year. Specific Authority 403.061,403.704 FS Law Implemented 403.754,403.760 FS.History—New 2-25-85,Formerly 17- 7.64, 17-7.640,Amended 1-17-90,Formerly 17-710.510,Amended 6-8-95, 12-23-96,3-25-97, 6-9-05. 62-710.600 Certification Program for Used Oil Transporters (1)Any used oil transporter that transports over public highways more than 500 gallons of used oil annually,not including oily waste,shall become certified pursuant to this section.This section shall not apply to: (a)Any local governments or private solid waste hauler under contract to a local government that transports used oil collected from households to a public used oil collection center;or (b)Any used oil transporter that transports its own used oil,which is generated at its own noncontiguous facilities,to its own central collection facility for storage,processing,or energy recovery. However,such used oil transporter shall provide the proof of financial responsibility required in paragraph (2)(e)of this section. (2)To become certified and to maintain certification,used oil transporters shall: (a)Register annually with the Department and comply with the annual reporting and record keeping requirements pursuant to Rules 62-710.500 and 62-710.510,F.A.C.; (b)Show evidence of familiarity with applicable state laws and rules governing used oil transportation by submitting a training program for approval to the Department which includes provisions for at least the following: 1.Compliance with state and federal rules governing used oil; 2.Proper used oil management practices,including appropriate response action to any release or spill; 3.A detailed description of the company's standard operating procedure for halogen screening at each pick up location.This description shall include instrument specifications and capabilities,calibration methods and frequency,procedures addressing the handling of loads which indicate halogen levels in excess of 1,000 ppm,and record keeping procedures for all loads accepted or refused. 4.An introduction of each new employee to the applicable laws and rules before unsupervised driving of a used oil transportation vehicle;and 5.Documentation that all company personnel handling or transporting used oil have successfully completed the training program.New employees shall complete the training program as soon as possible, but no later than 90 days after beginning employment; 5 (c)Maintain a record of training in the company's operating record and the individual personnel files indicating the type of training received along with the dated signature of those receiving and providing the training.These records shall be retained for a minimum of three years and available for review by Department personnel during inspections; (d)Submit to the Department an annual statement in conjunction with the annual registration required under Rule 62-710.500,F.A.C.,which states that the training program is still operating and is being adhered to and has been annually reviewed and updated to address changes in regulations which apply to the operation,and which provides an explanation of any modifications to the training program;and (e)Have,verify,and maintain vehicle insurance with a combined single limit of no less than $1,000,000. Such insurance or additional policy,must in no way exclude pollution coverage for sudden and accidental alleged or threatened discharge,dispersal, seepage,migration,release or escape of used oil,and must include any cost or expense relating to pollution damage for which the transporter is legally liable. Such insurance must be maintained at all times and be exclusive of legal defense costs. 1.The insurance required in this paragraph may be established by: a.Evidence of liability insurance,either on a claim made or an occurrence basis,with or without a deductible(with the deductible,if any,to be on a per occurrence or per accident basis and not to exceed ten percent of the equity of the business),using DEP Form 62-710.901(4).The insurance policy shall be issued by an agent or company authorized or licensed to transact business in the State of Florida.An ACORD form will only be accepted for renewal of a policy with the same carrier;or b.For business entities registered in Florida,evidence of self-insurance provided by the chief financial officer of the business entity. 2.States and the federal government are exempt from the requirements of this paragraph. (3)The Department shall issue a certification to each transporter that provides reasonable assurance of compliance with the requirements of this section,which shall be valid for the current registration period. (4)The revocation provisions of Section 403.087(7),F.S.,apply to certified used oil transporters.That statute authorizes revocations in accordance with the procedural requirements of Section 120.60,F.S.,upon a finding by the Department that such transporter: (a)Has submitted false or inaccurate information in its application; (b)Has violated statutes which the Department is authorized to enforce,Department orders,rules,or certification conditions; (c)Has failed to submit reports or other information required by Department rule or permit condition; or (d)Has refused to allow inspection of its records or equipment by Department personnel or other persons when such inspection is authorized by Department rule or permit condition. Specific Authority 403.061,403.704,403.767 FS Law Implemented 403.767 FS.History—New 1-17-90,Formerly 17- 710.600,Amended 6-8-95, 12-23-96,3-25-97,6-9-05. 62-710.800 Permits for Used Oil Processing Facilities (1)This rule shall apply to any owner or operator of a facility that processes used oil.The owner or operator shall comply with the requirements of this chapter including the requirements of 40 C.F.R.Part 279 Subpart F. (a)Processing does not include the removal of used oil from wastewater solely for the purpose of making the wastewater or stormwater acceptable to meet discharge limits in other permits.However,the used oil generated from such activity is subject to this chapter. Sediment material removed from an oil/water separator for disposal is subject to the requirements of Chapter 62-730,F.A.C. (b)Permits shall not be required under this section for generators who aggregate their own used oil with virgin oil or on-specification used oil for purposes of burning on-specification used oil fuel at the aggregation site,provided a valid air permit authorizing such burning is in effect for the facility. (c)Permits shall not be required under this section for facilities that conduct processing operations incidental to burning the used oil fuel on-site,provided a valid air permit authorizing such burning is in effect for the facility and all of the used oil fuel is burned on-site. (2)An owner or operator of a used oil processing facility shall operate,modify,or close such a facility only pursuant to a permit issued by the Department in accordance with this chapter. (3)Before operating,closing or making any substantial modification to a used oil processing facility, the owner or operator shall submit to the Department the Used Oil Processing Facility Permit Application, 6 DEP Form 62-710.901(6).The engineering aspects of the application shall be certified by a Professional Engineer. (a)Pursuant to subsections 62-4.050(6)and(7),F.A.C.,a substantial modification means a modification which is reasonably expected to lead to substantially different environmental impacts which require a detailed review.For purposes of this subsection,an increase in storage capacity of the facility by 25%or 25,000 gallons,whichever is less,is considered a substantial modification. (b)Pursuant to paragraph 62-4.050(4)(s),F.A.C.,a minor modification means a modification that does not require substantial technical evaluation by the Department,does not require a new site inspection by the Department,and will not lead to substantially different environmental impacts or will lessen the impacts of the original permit.For purposes of this subsection,replacement of existing tanks with new tanks is considered a minor modification. (c)Changes at a facility which involve routine maintenance,such as repair of equipment,replacement of equipment with similar equipment,aesthetic changes,or minor operational changes are not considered modifications,do not have to be reported to the Department,and require no permit fee.Facility operators are advised to contact the Department if they have questions as to whether a change would be considered routine maintenance. (4)Notwithstanding the provisions of Rule 62-4.050,F.A.C.,the fee for a used oil processor permit application,including a permit renewal application,is$2,000.The fee for a substantial modification to the permit is$500.No permit fee is required for minor modifications.Applications for renewal of permits shall be submitted to the Department at least 60 days prior to the expiration date of the existing permit in accordance with Rule 62-4.090,F.A.C. (5)(a)The owner or operator of a used oil processing facility shall have and submit to the Department as part of its permit application a written closure plan to show how the facility will be closed to meet the following requirements: 1.There will be no need for further facility maintenance; 2.Used oil will not contaminate surface or ground water;and 3.All tanks,piping,secondary containment and ancillary equipment will be emptied,cleaned and decontaminated,and all materials removed and managed. (b)The closure plan shall be updated whenever significant operational changes occur or design changes are made. (c)The closure plan shall be maintained with records required under Rule 62-710.510,F.A.C. (d)The owner or operator shall submit a detailed closure plan to the Department at least 60 days prior to the scheduled date of closing the facility. (e)Within 30 days after closing the facility,the owner or operator shall submit a certification of closure completion to the Department which demonstrates that the facility was closed in substantial compliance with the detailed closure plan.Within 30 days of determining that the facility was closed in accordance with its closure plan,the Department shall release the facility from its financial assurance obligations. (6)Financial assurance. (a)The owner or operator of a used oil processing facility shall provide the Department with proof of financial assurance issued in favor of the State of Florida in the amount of the closing cost estimate for the facility.This proof,along with the closing cost estimate,shall be submitted to the Department as part of the permit application process for the facility.Proof of financial assurance shall consist of either a surety bond guaranteeing payment or a surety bond guaranteeing performance,which complies with the requirements of Rule 62-701.630,F.A.C.An owner or operator may request an alternate proof of financial assurance in lieu of,or in combination with,the requirement for a surety bond,consisting of one or more of the following financial instruments which comply with the requirements of Rule 62-701.630,F.A.C.:trust fund;irrevocable letter of credit;insurance;or financial test and corporate guarantee.Financial documents shall be submitted on Form 62-701.900(5)(a),(b),(c),(d),(e),(f),(g)or(h),as appropriate. (b)For the purpose of determining the closing cost estimate,the owner or operator shall estimate the total cost of closing the facility using Form 62-710.901(7)and in accordance with the closure plan pursuant to subsection(5)of this section,for the time period in the facility operation when the extent and manner of its operation make closing most expensive.The owner or operator shall submit the estimate,together with all necessary justification,to the Department along with the proof of financial assurance.The costs shall be estimated and certified by a professional engineer for a third party to perform the work,on a per unit basis, with the source of estimates indicated.The owner or operator shall keep the latest closing cost estimate at 7 the facility.When this estimate has been adjusted in accordance with paragraph(c)of this subsection,the latest adjusted closing cost estimate shall also be kept at the facility. (c)The owner or operator shall annually adjust the closing cost estimate for inflation and changes in the closure plan,and shall submit updated information to the Department between January 1 and March 1 of each year. Such adjustments shall be made either by: 1.Recalculating the maximum cost of closing,in current dollars;or 2.Using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S.Department of Commerce in its Survey of Current Business.The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year. (d)If the value of the funding mechanism is less than the total amount of the current closing cost estimate,the owner or operator shall revise the funding mechanism to reflect the new estimate. (e)The initial Used Oil Facility Closing Cost Estimate Form shall be submitted to the Department no more than six months after the effective date of the rule and the owner/operator shall demonstrate funding of this closing cost estimate within 60 days of receiving approval of the cost estimate from the Department. Specific Authority 403.061,403.704 FS Law Implemented 403.704,403.707,403.769,403.814 FS.History—New 1-17- 90,Formerly 17-710.800,Amended 6-8-95, 12-23-96,6-9-05. 62-710.850 Management of Used Oil Filters (1) Prohibition. No person who removes or manages used oil filters shall dispose of such filters, or commingle such filters with other solid waste for disposal, in a landfill in Florida. It is the responsibility of the generator to make reasonable efforts to assure that such filters are not disposed of in a landfill. This prohibition shall not apply to used oil filters generated by individual households. (2)Generators.Each generator of used oil filters whose solid waste is typically disposed of in a landfill shall either register as a used oil filter processor or shall ensure that its filters are transported by a registered used oil filter transporter and processed by a registered used oil filter processor or end user. This does not include persons who recycle engine blocks on which used oil filters remain. Generators of used oil filters are exempt from the registration and reporting requirements of this rule provided that they transport their own used oil filters in sealed containers of 55 gallons or less which are secured to a vehicle owned by the generator. (3) Registration. The following persons shall register with the Department in accordance with the requirements of subsections 62-710.500(2)and(4),F.A.C.: (a)Used oil filter transporters; (b)Used oil filter transfer facilities; (c)Used oil filter processors;and (d)End users of used oil filters,including scrap metal dealers,metal foundries and thermal processing units such as cement kilns,who accept used oil filters from a person who is not a registered used oil filter processor. An end user shall not be required to comply with the provisions of this section with respect to used oil filters that have been obtained from a registered used oil filter processor. (4)Used oil filter processors. (a) Each registered used oil filter processor shall maintain records on Form 62-710.901(2) or on substantially equivalent forms which contain at least the same information as the Department form.These records shall include the destination or end use of the processed used oil filters, including the name and street address of each destination or end user. (b) The records required by this subsection shall be retained for a period of three years. The records shall be kept at the street address of the registered person and shall be available for inspection by the Department during normal business hours. (c)No later than March 1 of each year,each registered used oil filter processor shall submit an annual report for the preceding calendar year to the Department on Form 62-710.901(2). This report shall summarize the records kept pursuant to paragraph(a)of this subsection. (5)General requirements for the storage of used oil filters. (a) All persons storing used oil filters shall store used oil filters in above ground containers which are 8 clearly labeled "Used Oil Filters," and which are in good condition (no severe rusting, apparent structural defects or deterioration) with no visible oil leakage. The containers shall be sealed or otherwise protected from weather and stored on an oil-impermeable surface. (b) Upon detection of a release of oil from any used oil filter container the facility owner or operator shall: 1. Stop the release; 2.Contain the released oil; 3.Clean up and manage properly the released oil and any subsequent oily waste in accordance with the provisions of Chapter 770,F.A.C.,if applicable;and 4.Repair or replace any leaking used oil filter storage containers prior to returning them to service. Specific Authority 403.061, 403.704 FS. Law Implemented 403.751, 403.754, 403.769 FS. History—New 6-8-95, Amended 12-23-96, 6-9-05, 1-4-09. 62-710.901 Forms The forms used by the Department in the used oil management program are adopted and incorporated by reference in this section. The form is listed by rule number, which is also the form number, and with the subject, title and effective date. The forms can be obtained on the interne at http://www.dep.state.fl.us/waste/quick topics/forms/pages/62-710.htm or by contacting the Hazardous Waste Regulation Section, MS 4560, Division of Waste Management, Department of Environmental Protection,2600 Blair Stone Road,Tallahassee,Florida 32399-2400. (1) [reserved]. (2)Used Oil and Used Oil Filter Record Keeping Form,effective June 9,2005. (3)Annual Report by Used Oil and Used Oil Filter Handlers,effective June 9,2005. (4)Certificate of Liability Insurance Used Oil Handlers,effective June 9,2005. (5)Public Used Oil Collection Center Notification and Annual Report,effective June 9,2005. (6)Used Oil Processing Facility Permit Application,effective June 9,2005. (7)Used Oil Processing Facility Closing Cost Estimate Form, effective June 9,2005. Specific Authority 120.53(1),403.061,FS.Law Implemented 403.754,403.769 FS.History—New 12-23-96,Amended 6- 9-05, 1-4-09. 9