NR 216.21 Note
Note:
Facilities in SIC Codes 4221, 4222 and 4225 are included in s.
NR 216.21 (2) (b) 1. NR 216.21(2)(b)3.a.a. Facilities defined by Table 4, including active and inactive mining operations and oil and gas exploration, production, processing or treatment operations or transmission facilities. This subchapter only applies where storm water runoff has come into contact with any overburden, raw material, intermediate product, finished product, by-product or waste material located on the site of the operations.
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See PDF for table 
NR 216.21(2)(b)3.b.
b. This subchapter does not apply to non-coal mining operations which have been released from applicable state or federal reclamation requirements after December 17, 1990; nor to coal mining operations released from the performance bond issued to the facility by the appropriate surface mining control and reclamation act authority under
30 USC 1201 et seq. and
16 USC 470 et seq. Production, processing or treatment operations or transmission facilities associated with oil and gas extraction are included only if there has been a discharge of storm water containing a quantity of a pollutant reportable pursuant to
40 CFR 110.64,
40 CFR 117.21 or
40 CFR 302.6, or if a storm water discharge contributed to a violation of a water quality standard.
NR 216.21(2)(b)4.
4. Facilities subject to storm water effluent limitation guidelines, new or existing source performance standards or toxic pollutant effluent standards under
33 USC 1251,
1311,
1314(b) and (c),
1316(b) and (c),
1317(b) and (c),
1326(c), except those facilities classified as a Tier 1 pursuant to sub.
(2) (a).
NR 216.21(2)(b)5.
5. Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage, treatment, recycling and reclamation of municipal or domestic sewage, including lands dedicated to the disposal of sewage sludge that are located within the confines of the facility, with a design flow of one million gallons per day or more, or required to have an approved pretreatment program. Not included are farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with
33 USC 1345.
NR 216.21(2)(b)6.
6. Hazardous waste treatment, storage and disposal facilities, including those operating under a license under s.
291.25, Stats.
NR 216.21(2)(b)7.
7. Landfills, land application sites and open dumps that receive or have received any industrial waste from any of the facilities identified in this section, including those subject to regulation under subtitle D of the resource conservation and recovery act,
42 USC 6901 et seq., or ch.
289, Stats. For the purposes of this subdivision, “industrial waste” means a disposed material generated by any of the facilities identified in this section including construction and demolition waste from a construction site regulated under subch.
III. The term does not include placement of recycled material used during construction.
NR 216.21(2)(b)8.
8. All steam electric power generating facilities, including coal handling sites but not including off-site transformer or electric substations.
NR 216.21(2)(b)9.
9. Facilities described in SIC code 2951 for asphalt paving mixes and block, and facilities described in SIC codes 3271, 3272 and 3273 for cement products.
NR 216.21(2)(b)11.
11. Discharges determined by the department to be significant contributors of pollutants to waters of the state.
NR 216.21(3)(a)
(a) Discharges composed entirely of storm water are not storm water discharges associated with industrial activity if there is no exposure of industrial materials and activities to storm water, and the discharger satisfies the conditions in pars.
(b) to
(e). “No exposure" means that all industrial materials and activities are protected by a storm resistant shelter to prevent exposure to storm water. Industrial materials or activities include material handling equipment or activities, industrial machinery, raw materials, intermediate products, by-products, final products or waste products. Material handling activities include the storage, loading and unloading, transportation or conveyance of any raw material, intermediate product, final product or waste product.
NR 216.21(3)(b)
(b)
Qualification. To qualify for this exclusion, the operator of the discharge shall do all of the following:
NR 216.21(3)(b)1.
1. Provide a storm resistant shelter to protect industrial materials and activities from exposure to storm water.
NR 216.21(3)(b)2.
2. Complete and sign, in accordance with s.
NR 216.22 (7), a certification that there are no discharges of storm water contaminated by exposure to industrial materials and activities from the entire facility, except as provided in par.
(c).
NR 216.21(3)(b)3.
3. Submit an initial “no exposure” certification to the department at least 14 working days prior to the start of industrial operations on a form available from the department as specified under s.
NR 216.006.
NR 216.21(3)(b)4.
4. Submit the signed certification to the department once every 5 years.
NR 216.21(3)(b)5.
5. Allow the department to inspect the facility to determine compliance with the “no exposure" conditions.
NR 216.21(3)(b)6.
6. Allow the department to make any “no exposure" inspection reports available to the public upon request.
NR 216.21(3)(b)7.
7. For facilities that discharge through an MS4, upon request, submit a copy of the certification of “no exposure" to the MS4 operator, as well as allow inspection and public reporting by the MS4 operator.
NR 216.21(3)(c)
(c)
Industrial materials and activities not requiring storm resistant shelter. To qualify for this exclusion, storm resistant shelter is not required for any of the following:
NR 216.21(3)(c)1.
1. Drums, barrels, tanks and similar containers that are tightly sealed, provided those containers are not deteriorated and do not leak. “Sealed" means banded or otherwise secured and without operational taps or valves.
NR 216.21(3)(c)3.
3. Final products, other than products that would be mobilized in storm water such as rock salt.
NR 216.21(3)(d)1.1. This conditional exclusion from the requirement to obtain a permit under this subchapter is available on a facility-wide basis only, not for individual outfalls. If a facility has some discharges of storm water that would otherwise be “no exposure" discharges, individual permit requirements may be adjusted by the department accordingly.
NR 216.21(3)(d)2.
2. If circumstances change and industrial materials or activities become exposed to storm water, the conditions for this exclusion no longer apply. The discharge then becomes subject to enforcement as an unpermitted discharge. Any conditionally exempt discharger who anticipates changes in circumstances shall submit a notice of intent to the department 14 or more working days prior to the change of circumstances and in accordance with s.
NR 216.22.
NR 216.21 Note
Note:
A facility that has claimed a condition of “no exposure" should routinely inspect its facility to verify that it continues to operate in a condition of “no exposure."
NR 216.21(3)(d)3.
3. Notwithstanding the provisions of this subsection, the department retains the authority to require permit authorization and deny this exclusion upon making a determination that the discharge causes, has a reasonable potential to cause, or contributes to an exceedence of an applicable water quality standard, including designated uses.
NR 216.21(3)(e)
(e)
Certification. The “no exposure" certification shall include all of the following information, at a minimum, to aid the department in determining if the facility qualifies for the “no exposure" exclusion:
NR 216.21(3)(e)2.
2. The facility name, address, the county name where the facility is located, and the latitude and longitude where the facility is located.
NR 216.21(3)(e)3.
3. The certification shall indicate that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation:
NR 216.21(3)(e)3.a.
a. Using, storing or cleaning industrial machinery or equipment, and areas where residuals from using, storing or cleaning industrial machinery or equipment remain and are exposed to storm water.
NR 216.21(3)(e)3.b.
b. Materials or residuals on the ground or in storm water inlets from spills and leaks.
NR 216.21(3)(e)3.e.
e. Materials or products during loading and unloading or transporting activities.
NR 216.21(3)(e)3.f.
f. Materials or products stored outdoors, except final products intended for outside use such as new cars, where exposure to storm water does not result in the discharge of pollutants.
NR 216.21(3)(e)3.g.
g. Materials contained in open, deteriorated or leaking storage drums, barrels, tanks and similar containers.
NR 216.21(3)(e)3.h.
h. Materials or products handled or stored on roads or railways owned or maintained by the discharger.
NR 216.21(3)(e)3.j.
j. Application or disposal of process wastewater unless otherwise permitted.
NR 216.21(3)(e)3.k.
k. Particulate matter or visible deposits of residuals from roof stacks or vents not otherwise regulated such as under an air quality control permit, and evident in the storm water outflow.
NR 216.21(3)(e)4.
4. All “no exposure" certifications shall include the following certification statement, and be signed in accordance with the signatory requirements of s.
NR 216.22 (7): “I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of “no exposure" and obtaining an exclusion from permitting requirements under subch.
II of ch. NR 216; and that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial facility identified in this document, except as allowed under s.
NR 216.21 (3) (c). I understand that I am obligated to submit a “no exposure" certification form once every five years to the department and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable). I understand that I must allow the department or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request. I understand that I must obtain permit coverage under subch.
II of ch. NR 216, prior to any point source discharge of storm water from the facility. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is to the best of my knowledge and belief true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment."
NR 216.21(5)
(5)
Exclusions. This subchapter does not apply to any of the following:
NR 216.21(5)(a)
(a) Diffused surface drainage or agricultural storm water discharges.
NR 216.21(5)(b)
(b) Non-storm water discharges at the outfall covered under an individual or general WPDES permit, including contact cooling water, non-contact cooling water, other process wastewaters or sewage.
NR 216.21(5)(c)
(c) Non-storm water discharges at an outfall for which coverage under an individual or general WPDES permit is not required, including landscape irrigation, diverted stream flows, uncontaminated groundwater infiltration, uncontaminated pumped groundwater, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, lawn watering, individual residential car washing, flows from riparian habitats and wetlands and fire fighting.
NR 216.21(5)(d)
(d) Inactive, closed or capped landfills that have no potential for contamination of storm water. The department shall make a determination of contamination potential on a case-by-case basis.
NR 216.21(5)(e)
(e) Remedial action discharges or discharges authorized by a WPDES permit for discharging contaminated or uncontaminated groundwater.
NR 216.21(5)(f)
(f) Discharges of hazardous substances that are required to be reported under ch.
NR 706.
NR 216.21(5)(g)
(g) Areas located on plant lands that are segregated from the industrial activities of the plant, such as office buildings and accompanying parking lots, if the drainage from the segregated areas is not mixed with contaminated storm water drainage.
NR 216.21(5)(h)
(h) Storm water discharges into a municipal combined sewer system.
NR 216.21 History
History: CR 03-028: cr.
Register July 2004 No. 583, eff. 8-1-04;
CR 21-027: am. (2) (b) 1., 7., (3) (b) 3., (e) 2., r. (4) Register March 2022 No. 795, eff. 4-1-22. NR 216.22
NR 216.22 Application requirements. NR 216.22(1)(1)
Applicability. The owner or operator of a facility type listed in s.
NR 216.21 (2) shall apply for a storm water discharge permit unless the owner or operator is eligible for and has submitted a conditional “no exposure" certification in accordance with s.
NR 216.21 (3).
NR 216.22(2)
(2)
Date of application. Persons proposing to discharge storm water shall submit a notice of intent to the department as follows:
NR 216.22(2)(a)
(a) For proposed facilities that will undergo one or more acres of land disturbing construction activities as part of their construction, at least 14 working days prior to initiating land disturbing construction activities at the site.
NR 216.22 Note
Note:
This submittal timeline is consistent with the requirement to develop erosion control and storm water management plans and submit a notice of intent under subch. III.
NR 216.22(2)(b)
(b) For all other facilities, at least 14 working days prior to initiating industrial operations.
NR 216.22 Note
Note:
Where an existing facility is covered under a storm water discharge permit, permit coverage may be transferred to a new owner in accordance with s.
NR 216.31.
NR 216.22(4)
(4)
Forms. Notices of intent shall be submitted to the department using forms available from the department as specified in s.
NR 216.006.
NR 216.22(5)(a)(a) The department shall evaluate the information submitted on the notice of intent to determine whether a facility should be covered under a general or individual storm water discharge permit under s.
283.31 or
283.33, Stats.; or whether coverage under a permit should be denied. A letter shall be sent to the applicant when permit coverage is granted. The letter granting coverage shall indicate the date upon which coverage under the permit becomes effective at the facility. If permit coverage is denied, a letter shall be sent to the applicant with the reason for denial.
NR 216.22(5)(b)
(b) The basis for determining coverage under a general or individual storm water discharge permit and the tier type shall be based on a comparison of notice of intent information on SIC code, industrial activity and the discharge of contaminated storm water, to the categories identified in s.
NR 216.21 (2).
NR 216.22(5)(c)
(c) If a facility has a WPDES permit, the department may choose to regulate storm water discharges under that permit.
NR 216.22(6)
(6)
Additional information. The department may require more information than what is provided in the notice of intent in order to determine if coverage under a general permit is appropriate. The applicant shall provide additional information requested by the department within 30 days from receipt of notification by the department.
NR 216.22(7)
(7)
Signature. The notice of intent shall be signed as follows:
NR 216.22(7)(a)
(a) In the case of a corporation, by a principal executive officer of at least the level of vice-president, or by the officer's authorized representative having overall responsibility for the operation of the site for which permit coverage is sought.
NR 216.22(7)(b)
(b) In the case of a unit of government, by a principal executive officer, a ranking elected official, or other duly authorized representative.
NR 216.22(7)(d)
(d) In the case of a sole proprietorship, by the proprietor.
NR 216.22(7)(e)
(e) In the case of a limited liability company, by a member or manager.
NR 216.22(8)
(8)
Deficient application. The department may require an applicant to submit data necessary to complete any deficient notice of intent or may require the applicant to submit a new notice of intent where the deficiencies are extensive or the appropriate form has not been used.
NR 216.22(9)
(9)
Reapplication. When a general storm water discharge permit is reissued, the department may require the owner or operator of a previously covered facility to submit a new notice of intent in order to determine continued applicability of the permit.
NR 216.22 History
History: CR 03-028: cr.
Register July 2004 No. 583, eff. 8-1-04;
CR 21-027: am. (4) Register March 2022 No. 795, eff. 4-1-22.
NR 216.23(1)(1)
Tier 1 general permit. The department may issue a statewide general permit to cover all tier 1 type storm water discharges where the discharges are not covered by an industry-specific general permit issued pursuant to s.
NR 216.24, or by an individual permit issued pursuant to s.
283.31 or
283.33, Stats.
NR 216.23(2)
(2)
Tier 2 general permit. The department may issue a statewide general permit to cover all tier 2 type storm water discharges where the discharges are not covered by an industry-specific general permit issued pursuant to s.
NR 216.24, or by an individual permit issued pursuant to s.
283.31 or
283.33, Stats.
NR 216.23(3)(a)(a) A permittee covered by a tier 1 general industrial storm water discharge permit issued under this section, or a permit issued under s.
NR 216.24, may request that the department consider converting the permittee's coverage to a tier 2 general industrial storm water discharge permit if all of the following occur:
NR 216.23(3)(a)2.
2. The permittee certifies that there is no unauthorized discharge at the outfall.
NR 216.23(3)(a)3.
3. The permittee has completed a minimum of 3 years of industrial activity under a SWPPP, with no confirmed problems identified by public complaint or the annual facility site compliance inspection reports required under s.
NR 216.29 (2).
