(4) Applying for Coverage under a General Permit.

1. (a) Dischargers seeking coverage under a general permit shall submit to the Department a written notice of intent to be covered by the general permit. A discharger who fails to submit a notice of intent in accordance with the terms of the general permit is not authorized to discharge under the general permit unless the general permit contains a provision that a notice of intent is not required or the Department notifies a discharger that it is covered by a general permit in accordance with 314 CMR 3.06(7). In general, the filing of a complete and timely notice of intent to be covered in accordance with 314 CMR 3.06 fulfills the requirements for permit applications for the purposes of 314 CMR 3.00.
2. (b) The Department will specify the content of the notice of intent in the general permit and require the submission of information deemed necessary by the Department for its adequate implementation and compliance oversight of the general permit, including, at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, and the receiving waters.
3. (c) The Department will specify in the general permits the deadlines for submitting notices of intent to be covered and the date(s) when a discharger is authorized to discharge under the general permit.
4. (d) The Department will specify in the general permits whether a discharger that has submitted a complete and timely notice of intent and that is eligible for coverage under the general permit, is authorized to discharge in accordance with the general permit either upon receipt of the notice of intent by the Department, after a waiting period specified in the general permit, on a date specified in the general permit, or upon receipt of notification of inclusion by the Department.

(5) The Department may require any person authorized to discharge under a general permit to apply for and obtain an individual surface water discharge permit or an alternative general surface water discharge permit in accordance with 314 CMR 3.00. Cases where an individual permit or alternative general permit may be required by the Department include, but are not limited to, the following:

1. (a) The discharger is not in compliance with the conditions of the general permit; or
2. (b) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the discharge covered by the general permit; or
3. (c) More specific effluent limitations are established by the Department for discharges covered by the general permit; or
4. (d) Circumstances have changed since the time of the request to be covered under the general permit to the extent that the Department determines that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the discharge is necessary; or
5. (e) The discharger covered by the general permit is a significant contributor of pollutants, based on the Department’s consideration of the location and size of the discharge and the quantity and nature of the pollutants discharged to waters of the Commonwealth.

(10) Continuation of an Expired General Permit. In the event that the Department does not reissue a general permit prior to its expiration date, it will be administratively continued and remain in force and in effect as to any particular permittee if that permittee submits a new written request for coverage prior to the expiration of the general permit within the deadline specified by the Department. Once the general permit expires, the Department may, but is not obligated to, provide written notification of coverage under the general permit to any permittee who submits a written request for general permit coverage after the general permit’s expiration date. Any permittee who was granted general permit coverage prior to the expiration date will automatically remain covered by the continued permit until the earlier of:

1. (a) Reissuance of the general permit, at which time the permittee shall comply with the conditions of the new general permit to maintain its authorization to discharge; or
2. (b) The permittee’s submittal of a written notice of termination of general permit coverage to the Department; or
3. (c) The Department’s issuance of an individual permit or an alternative general permit for the permittee’s discharge; or
4. (d) A formal permit decision by the Department not to reissue the general permit, at which time the permittee shall seek coverage under an alternative general permit or an individual permit.

(11) General Permits for Phase II Storm Water Discharges from Small MS4s.

1. (a) Discharges Authorized under the General Permit. The Department may issue a general permit for storm water discharges from small municipal separate sewer systems (small MS4s), as provided in EPA’s Phase II Storm Water Regulations at 40 CFR Part 122, Subpart B, and in 314 CMR 3.06(11)(b).

2. (b) Small MS4s.

   1. 1. Scope of Coverage. All operators of small MS4s located within the boundaries of an urbanized area of Massachusetts are required to obtain coverage under the general permit, unless the Department determines that such an automatically designated small MS4 meets the criteria for a waiver, as determined by the Department, or is subject to an individual surface water discharge permit issued pursuant to 314 CMR 3.00.
   2. 2. Additional Department Authority to Designate Other MS4s. The Department may designate an operator of a small MS4 located outside of an urbanized area as a regulated small MS4 if the Department determines that the system’s discharges cause, or have the potential to cause, an adverse impact on water quality. Any such designation shall be based on a criteria developed by the Department that considers factors such as whether the discharge is to sensitive waters, high population density, high growth or growth potential, continuity to an urbanized area, whether the discharge is a significant contributor of pollutants to the receiving waters, and ineffective protection of water quality concerns by other programs. The Department shall apply its designation criteria, at a minimum, to all small MS4s located outside of an urbanized area serving a jurisdiction with a population of at least 10,000 and a population density of at least 1000 persons per square mile. The Department may also designate any small MS4 located outside of an urbanized area that contributes substantially to the pollutant loadings of a physically interconnected MS4 regulated by the general permit or an individual permit issued by the Department pursuant to 314 CMR 3.00.

   3. 3. Waiver of Coverage for Certain Automatically Designated Small MS4s. The Department may waive the requirement that an automatically designated MS4 obtain coverage under the general permit in the following circumstances:

      1. a. the jurisdiction served by the system is less than 1,000 people, the system is not contributing substantially to the pollutant loadings of a physically interconnected regulated MS4, and if the small MS4 discharges any pollutants identified as a cause of impairment of any water body to which it discharges, storm water controls are not needed based on wasteload allocations that are part of a TMDL established by the Department that addresses the pollutant(s) of concern; or
      2. b. the jurisdiction served by the system is less than 10,000 people, an evaluation of the waters hat receive a discharge from the system shows that storm water controls are not needed based on wasteload allocations that are part of a TMDL established by the Department that addresses the pollutant(s) of concern or an equivalent analysis, and the Department determines that future discharges from the small MS4 do not have the potential to result in exceedances of water quality standards.
      3. c. At least once every five years, the Department shall review any waivers that it granted to small MS4 operators to determine whether any information required for granting the waiver has changed.
   4. 4. Storm Water Management Program Requirements. An operator of a small MS4 covered under the general permit shall develop, implement and enforce a storm water management program designed to reduce the discharge of pollutants from its small MS4 to the maximum extent practicable to protect water quality, and to satisfy the water quality requirements of M.G.L. c. 21, §§ 26 through 53 and 314 CMR 3.00 and 4.00. An operator’s storm water management program must include the minimum control measures described in 314 CMR 3.06(11)(b)5.a. through f., unless the operator applies for and is issued an individual surface water discharge permit pursuant to 314 CMR 3.00. If the Department determines that there is an existing qualifying state or local program that requires an operator to implement one or more of the minimum control measures, the Department may include conditions in the general permit that direct the operator to follow that program’s requirements rather than the minimum control measure(s). For the purposes of 314 CMR 3.06(6), narrative effluent limitations requiring implementation of BMPs are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements, including reductions of pollutants to the maximum extent practicable, and to protect water quality. Implementation of BMPs consistent with the provisions of the storm water management program required pursuant to the provisions of 314 CMR 3.06(11)(b), including the proper maintenance of BMPs, generally constitutes compliance with the standard of reducing pollutants to the “maximum extent practicable.” However, consistent with its authority under 314 CMR 3.06(8), the Department reserves the right to require an operator of a small MS4 to undertake additional control measures, BMPs and other actions beyond the scope of the operator’s existing storm water management program to ensure compliance with the general permit, water quality standards, and/or to protect public health and the environment. The Department may also condition the general permit to require measurable verification of the effectiveness of BMPs and additional operational and maintenance activities associated with BMPS, and other control measures in the operator’s storm water management program, including water quality monitoring.

   5. 5. Minimum Control Measures. The storm water management program of an operator of a small MS4 covered under the general permit shall include the following six minimum control measures:

      1. a. Public Education and Outreach. The operator shall implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of storm water discharges on water bodies and the steps that the public can take to reduce pollutants in stormwater runoff, such as ensuring the proper use and disposal of landscape and garden chemicals including fertilizers and pesticides, protecting and restoring riparian vegetation, and properly disposing of used motor oil or household hazardous wastes. In addition, some of the educational materials or outreach programs should be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant storm water impacts.
      2. b. Public Participation/Involvement. The operator shall, at a minimum, comply with applicable Department and other state and local public notice requirements when implementing a public involvement/participation program. The operator should include the public in developing, implementing and reviewing its storm water management program and the public participation process should make efforts to reach out and engage all economic and ethnic groups.

      3. c. Illicit Discharge Detection and Elimination. The operator shall develop, implement and enforce a program to detect and eliminate illicit discharges into its small MS4, including:

         1. (i) Develop, if not already completed, a storm sewer system map showing the locations of all outfalls and the names and location of all waters of the Commonwealth that receive discharges from those outfalls;
         2. (ii) To the extent allowable under state and local law, effectively prohibit, through ordinance, or other regulatory mechanism, non-storm water discharges into its storm sewer system and implement appropriate enforcement procedures and actions;
         3. (iii) Develop and implement a plan to detect and address non-storm water discharges, including illegal dumping, to its system;
         4. (iv) Inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of wastes; and
         5. (v) Address the following categories of non-storm water discharges or flows (i.e., illicit discharges) only if the operator has identified them as significant contributors of pollutants to its small MS4: water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration, uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water (discharges or flows from fire fighting activities are excluded from the effective prohibition against non-storm water and need only be addressed by the operator where they are identified as significant sources of pollutants to waters of the Commonwealth).

      4. d. Construction Site Runoff Control. The operator shall develop, implement and enforce a program to reduce pollutants in any storm water runoff to its small MS4 from construction activities that result in a land disturbance of greater than or equal to one acre. Reduction of storm water discharges from construction activity disturbing less than an acre shall be included in the operator’s program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the Department waives requirements for storm water discharges associated with small construction activity in accordance with 314 CMR 3.06(11)(b)3., the operator is not required to develop, implement, and/or enforce a program to reduce pollutant discharges from such sites. The operator shall include the development and implementation of, at a minimum:

         1. (i) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under state and local law;
         2. (ii) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;
         3. (iii) Requirements for construction site operators to control wastes such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;
         4. (iv) Procedures for site plan review which incorporate consideration of potential water quality impacts;
         5. (v) Procedures for receipt and consideration of information submitted by the public, and
         6. (vi) Procedures for site inspection and enforcement of control measures.

      5. e. Post-construction Site Runoff Control. The operator shall develop, implement and enforce a program to address storm water runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into its small MS4. The program shall ensure that controls are in place that would prevent or minimize water quality impacts. The operator shall also comply with the following requirements:

         1. (i) Develop and implement strategies that include a combination of structural and/or non-structural BMPs appropriate for the community;
         2. (ii) Use an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under state and local law; and
         3. (iii) Ensure adequate long-term operation and maintenance of BMPs.
      6. f. Pollution Prevention/Good Housekeeping. The operator shall develop and implement an operation and maintenance program that includes a training component and has the ultimate goal of preventing or reducing storm water pollution from activities such as park and open space maintenance, new construction and land disturbances, and storm water system maintenance.

   6. 6. Ability to Share Responsibility to Implement the Minimum Control Measures. An operator of a small MS4 may rely on another entity to satisfy its general permit obligation to implement a minimum control measure if:

      1. a. The other entity, in fact, implements the control measure;
      2. b. The particular control measure, or component thereof, is at least as stringent as the corresponding general permit requirement;
      3. c. The other entity agrees to implement the control measure on behalf of the operator of the small MS4. In reports that the operator of the small MS4 is required to submit to the Department pursuant to 314 CMR 3.06(11)(b)7., the operator shall specify that it relies on another entity to satisfy some of its general permit obligations and shall identify such other entity; and
      4. d. The operator of the small MS4 remains responsible for compliance with its general permit obligations if the other entity fails to implement the control measure, in whole or in part.

   7. 7. Evaluation and Assessment of the Storm Water Management Program.

      1. a. Evaluation. The operator of a small MS4 shall evaluate the compliance of its storm water management program with the general permit, the appropriateness of its best management practices, and progress towards achieving its identified measurable goals, in accordance with the general permit and Department requirements.
      2. b. Recordkeeping. The operator of the small MS4 shall keep records required by the general permit for at least three years. The operator shall submit such records to the Department only when specifically asked to do so by the Department. The operator shall make its records, including a description of its storm water management program, available to the public at reasonable times during regular business hours, subject to the provisions of M.G.L. c. 66, § 10, the state public records law.

      3. c. Reporting. Unless the operator of a small MS4 is relying on another entity to satisfy its general permit obligations under 314 CMR 3.06(11)(b)6., it shall submit annual reports to the Department during the first term of the general permit. For subsequent permit terms, the operator shall submit reports in years two and four, unless the Department requires more frequent reports. The report shall include:

         1. (i) The status of compliance with the conditions of the general permit, an assessment of the appropriateness of its best management practices, and progress towards achieving its identified measurable goals, in accordance with the general permit and Department requirements;
         2. (ii) The results of information collected and analyzed, including monitoring data, if any, during the reporting period;
         3. (iii) A summary of storm water activities that the operator plans to undertake during the next reporting cycle;
         4. (iv) A change in any identified BMPs or measurable goals for any of the minimum control measures; and
         5. (v) If applicable, notice that the operator is relying on another entity to satisfy some of its general permit obligations.
   8. 8. Compliance with More Stringent Effluent Limits. The operator shall comply with any more stringent effluent limitations, including permit requirements that modify, or are in addition to, the minimum control measures based on a TMDL or equivalent analysis approved by the Department. The Department may include in the general permit such more stringent limitations based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.

   9. 9. Applying for Coverage under the Small MS4 General Permit. On or before March 10, 2003, operators of small MS4s regulated under the Phase II Storm Water Rule and 314 CMR 3.06(6)(b) shall submit to the Department a written notice of intent to be covered by the general permit. In its notice of intent, the operator shall identify and submit the following minimum information:

      1. a. The BMPs that the operator or another entity will implement for each of the storm water minimum controls identified in 314 CMR 3.06(11)(b)5.a. through f.;
      2. b. The measurable goals for each of the BMPs including, as appropriate, the months and years in which the operator will undertake required actions, including interim milestones and the frequency of action; and
      3. c. The person or persons responsible for implementing or coordinating the operator’s storm water management program.

   An operator of a regulated small MS4 is not covered by any general permit for Phase II Storm Water Discharges issued by the Department pursuant to 314 CMR 3.06(11)(b) unless the operator submits a timely and completed notice of intent to the Department; and the Department notifies the operator in writing that its MS4 is covered by the general permit. Operators of regulated MS4s who fail to submit a notice of intent to the Department and receive no written notification of permit coverage or those who are denied by the Department are not authorized under the general permit to engage in activities subject to 314 CMR 3.06(11)(b).