Tank Talk - Alaska's Bulk Fuel Podcast

No Exposure - Not a Hall Pass!

• Integrity Environmental • Season 3 • Episode 3

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In this episode of Tank Talk, we dive into the often-misunderstood No Exposure Certification – what it is, what it isn’t, and why it’s not a free pass from stormwater regulations. Shannon and Haley break down the 11 conditions required for this permit exclusion, discuss real-world compliance challenges, and explain why choosing between a SWPPP or a No Exposure Certification requires careful consideration. 

Think you qualify for No Exposure? You might want to double-check! Spoiler alert: It’s more complicated than it looks. 

👉 Download the No Exposure Certification form (2020-msgp-noexp (1).pdf) to follow along as we go through the conditions one by one. 

🔗 Referenced Episodes: Keeping SWPPPs Straight 

Need expert guidance? Integrity is here to help - just give us a call! 

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Haley Hall:

Welcome to Tank Talk with Integrity Environmental. Join us as we sit down with founder, principal consultant and bulk fuel storage expert, Shannon Oelkers, to explore regulations, safety, and essential tips for navigating the bulk fuel storage industry. Join us as we explore the unique joys of work and life in Alaska with industry experts, including our team, vendors we work with and the companies we support.

Shannon Oelkers:

Welcome to Tank Talk. Today's episode is a follow-up to keeping SWPPP"Straight Straight Straight episode. I highly recommend you listen to that podcast before you dig into this one. Unless you're a rule breaker, then break on through, but do not hold me accountable for any confusion. Today I have with me Haley Hall and she's going to help me walk through the no exposure certification which, as we hinted to in keeping SWIFT straight, is not as straightforward as you would think.

Haley Hall:

For sure! Shannon, on our last episode we sorted through SWPPP's and what we need to know to keep them straight In that podcast. We briefly talked about something called a no exposure certification and you wanted to put that part out for its own podcast.

Shannon Oelkers:

I do. There's a lot of misconceptions about the no exposure certification and it seems super simple on the front end but in our experience it's really difficult to meet all the requirements of this permit exclusion over time.

Haley Hall:

My first question: is a no exposure certification, a stormwater permit?

Shannon Oelkers:

Sort of it's permit-like, permit-adjacent, if you will. To understand this, you got to understand a little bit about how the Clean Water Act permits work. Under the Clean Water Act, all industrial facilities within an identified industrial sector, like transportation, they're subject to the MSGP and must prepare a SWPPP unless they can show that they meet certain criteria that would exclude the facility from permit coverage. This can go two ways. One way is that you don't meet the sector-specific requirements, and you must get a customized individual permit. The other way is to attest that certain conditions exist at your facility that ensure stormwater does not get exposed to potential pollutants, and then your no exposure certification is an exclusion from the permit condition.

Haley Hall:

That's really confusing.

Shannon Oelkers:

Yeah, I feel like you have to be a lawyer almost to understand that. But the kicker is is that if you fail to meet the no exposure certification requirements, everything that the SWPPP's requires becomes immediately in effect. You're no longer excluded from the SWPPP requirements.

Shannon Oelkers:

So back to the lawyer piece. There's a reason we have a job. Because this is confusing, I think what I would say with the plain English takeaway is that a no exposure certificate is not a hall pass, or a get out of jail free card. A lot of people feel like when they get a no exposure certification, they don't have to do a SWPPP, and that's how they view it. Like oh, I don't have to get a SWPPP, I can get this no exposure certification. But I want to remind people that it's your company attesting that the 11 conditions that I'm about to talk about are met at the facility at all times during the five-year duration of the no exposure certification, and that you are not subject to the conditions or monitoring requirements as long as those conditions are met.

Haley Hall:

Attest... That sounds very... legal?

Shannon Oelkers:

It is. It is. It's a legal commitment. A no exposure certification is a legal commitment by the facility management that the 11 conditions that it talks about are being met. What makes this tricky is that in real life, meeting this condition is really challenging. For example, one of the conditions is that any container that collects stormwater and could expose stormwater to pollutants or industrial wastes, not is but could - think of a dumpster with a flipped open lid. It's really hard to make sure that all of your employees shut that lid every time they take the trash out - for example, right? Before any stormwater collects in there.

Haley Hall:

Wow, imagine operations being different than the permit conditions.

Shannon Oelkers:

Yeah, and this is where we work with companies to evaluate risk and select what fits best for their real- life situation. Sometimes they may meet the no exposure certification, but a SWPPP makes more sense because it allows for human error and what they're doing. It may be important for other reasons as well, as far as risk mitigation.

Haley Hall:

Well, let's see if we can help people understand this better. Let's get through these 11 conditions.

Shannon Oelkers:

Okay, but before we do that - because this is very legal, I feel like I would like to remind people that I am not a state or federal regulator. I'm also not a lawyer, so these are just my opinions. They're really good opinions and they're based on real world enforcement actions that I have had the privilege of working on at Integrity. But I would like all of our listeners to listen wisely. Just because I say it here doesn't mean it will be true for your specific facility and your specific situation, and it may not even be true at all. I'm getting old, Haley. There's room for improvement sometimes.

Shannon Oelkers:

For our discussion of the no exposure condition, Haley, I think it would be really helpful. There's a no exposure certification form in the show notes and I would like all of our listeners to kind of open that up or print it out, have it available so you can review it. It's only three pages long, but what I'd like them to do is follow along as we go through these conditions. There's 11 conditions that have to be met. They're all super weird and long. I would hate for somebody to be driving down the road and trying to remember all this. So if you have this and you want to read along, I would suggest going to our show notes and grabbing that and then proceeding from here.

Haley Hall:

So the first no exposure condition is th"Using, storing, or cleaning industrial machinery or equipment, and areas where residuals from using, storing, or cleaning industrial machinery or equipment remain and are not exposed to storm water. "

Shannon Oelkers:

Thank you, EPA! Seems like it's easy to do on the surface, but keep in mind that parking a fuel truck with a minor engine oil leak or oil and grease residue in the hose cabinet will disqualify you if they impact stormwater. So the truck's sitting out in your yard and there's a sheen underneath the truck where some of those particulates collected? DQ! Time to get a sweat or time to fix the problem. If there's sheen and puddles in your yard, stained gravel, dead grass in your parking area, you also meet this condition. You can park it under a roof. That's the safest bet here. But a lot of facilities do not have enough covered parking for all of their rolling stock. I mean that's a lot of rough acreage there.

Haley Hall:

Well, can you talk about cleaning the industrial equipment? I feel like we get asked about truck washing so often by our clients.

Shannon Oelkers:

So much! Okay. Well, the beginning and end to this very long, very boring, nonsensical, non-common- sense story is that truck washing used to be allowed under the MSGP, prior to 2020, but now it is not. It makes no sense. It does not make sense for Alaska in particular. The state and feds assume that industrially permitted car washes are available in all communities, and this sets up our remote facilities for something of a failure, because there are no commercially permitted car washes in 95% of Alaska.

Shannon Oelkers:

I just want to reiterate you cannot use Harbor Master, you can't use power washing, even if you use no soap. The only option is that all washwaters must be collected and treated in accordance with industrial wastewater regulations, which is usually a specific type of filtration system, and or sending it to a sewer treatment facility. And then the last piece they cannot and I have to repeat, cannot co-mingle with stormwater discharges. The EPA calls them illicit connections and it sounds so sordid, but it just means that you have wash water mixing with your stormwater. It can't happen, it's illicit.

Shannon Oelkers:

So if you claim a no exposure exemption but you're washing your trucks when they get dirty, or power washing the algae and bird poop off your tank every year - which I know a few people that do that all the time, you don't meet this requirement. Honestly, truck washing could be another whole podcast episode, because if you're doing this under any slip, it's a violation there too. There's a lot of discussion about the lack of common sense on this one, and I feel you. I feel you so hard. It would not be a regulation that I would make up. It's a very tough requirement for facilities to comply with in the state of Alaska, but I can't change it. It is what it is.

Haley Hall:

So, the second no exposure condition is that "no materials or residuals are on the ground or in the stormwater inlets from spills or leaks

Shannon Oelkers:

Yep again keep a clean yard.

Shannon Oelkers:

This seems easy to meet. However, there are so many things in a typical fuel yard that could release fuel and impact stormwater or soils. Think laying out your fuel hoses, weeps and drips from the end of that. Setting aside a used drip pan and the wind flips it over, you've got a five-gallon bucket of oily rags that gets left out, filled up with rain water. For this one - housekeeping is key to meeting this requirement, and documenting that your yard is free of these items is important too. And I have a pro tip if you want to be a pro if you're frequently documenting that there's no materials or residuals on the ground, if something's found during a formal inspection by the state or the EPA, you will have that documentation as evidence that it's only been there for a few days, or since the last inspection. It's not as far back as they can go by legal allowance, because you've got these documents saying nothing here, signed and dated.

Haley Hall:

Right. So important! The third no exposure condition is that there are no materials or products from past industrial activity. What are the materials or products from past industrial activities?

Shannon Oelkers:

Haley,. Haley, we get a lot of "Huh? on this one In my experience I would say think old out-of-service tanks, the fuel truck that had the drivetrain die in it last year, empty barrels with residual oils on your empty barrel rack, abandoned pipelines, stuff that used to store oil but no longer does, for whatever reason. Now if these items exist but they were properly decommissioned and are oil-free, labeled out of service with the date you took them out of service and you have a nice record of the decommissioning project, then this is not a problem. But the key to meeting this condition is that the items are intentionally removed from service and are documented as oil free and they are not actually causing sheen or soil contamination in real life. Every tankyard in Alaska has like a boneyard somewhere with equipment that's out of service. You just need to make sure that it's documented and that you're not adding to the problem by putting an empty barrel on your empty barrel rack and having it leak a little out the bunghole, like stuff like that. Again, maintenance doing routine inspections to make sure those things are not happening, doing an annual review to make sure that if anything did get added to the boneyard, you've got the documentation you're supposed to have for it. That can all make this a reality. But it's not a do nothing for five years kind of a thing Right, for five years kind of a thing Right.

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Haley Hall:

So, number four is there are no material handling equipment, except adequately maintained vehicles exposed to stormwater.

Shannon Oelkers:

For this one, you kind of have to know what the definition of material handling equipment is under the MSGP, and that includes hoses, piping pumps, marine headers, tank truck loading rack arms, tank trucks and pretty much anything you use to transfer fuel. You have it all under a roof, so rain cannot hit it. You are good to go. But what trips people up on this is that the tank trucks are not parked under a roof. And if the tank truck is adequately maintained, no problem. Like I said earlier, if it's leaking oil in some way or has residuals in the cabinet, you may not be meeting this requirement. And then, lastly, a lot of our marine headers don't necessarily have a storm resistant shelter over them, which could be a disqualifier on this one. You know they can have a blind flange on them and they can be covered. But when you're transferring the fuel from the barge, that's a live transfer, and if it's not covered during the transfer, that's something that I think would probably kick you out of this one.

Haley Hall:

Gotcha. So, five is no materials or products are exposed to stormwater during loading and unloading or transporting activities.

Shannon Oelkers:

Yeah, If it gets wet when it rains, then this is stormwater exposure and I wish the EPA would just say it. If it gets wet, you are now exposed. If you've got sheen showing up in your containment or on the ground during a fuel transfer, you don't meet this requirement. The big kicker for this requirement is connection points. When you engage or disengage the barge hoses, when you fill that tank truck up, when you're unloading drums from a connex and fuel spills, there can be no drip sweeps or residues exposed to storm water. So operationally this can be a little challenging for facilities to meet over time. Like stuff happens the barge shows up, you have to take way too much stuff way too fast and things stand outside for a couple hours while you're waiting. Again, it's doable but it takes some work.

Haley Hall:

Okay, number six materials or products stored outdoors, except final products intended for outside use, for example, new cars where exposure to stormwater does not result in the discharge of pollutants.

Shannon Oelkers:

This one is pretty easy to wrap your mind around and it's related to ongoing maintenance. Most bulk tanks or piping runs do not have roofs over them because hello fire, marshal, I don't want anybody to die. But if they are maintained, I believe they are considered intended for outside use. So, as long as exposure to stormwater doesn't result in discharge or pollution, you meet this criteria. And what trips people up here is that they have gasket leaks or spills during routine maintenance or cleaning or damage from snow or ice, and that so lucky number seven is no materials contained in open, deteriorated or leaking storage drums, barrels, tanks and any similar containers.

Shannon Oelkers:

I think this is the easiest one to understand of the whole list. If it's open, deteriorated or leaking, you cannot have it full of potential pollutants from your industrial material, which is typically fuel for most of our listeners, and it can't be outside getting wet Again. Housekeeping. This is all housekeeping If you our listeners and it can't be outside getting wet Again, housekeeping. This is all housekeeping. If you see it, you pull it inside.

Haley Hall:

So for number eight, we have no materials or products handled or stored on roads or railways, owned or maintained by the discharger,

Shannon Oelkers:

So, this is a frequent head scratcher for some of our clients. It confused me too at the beginning of my career. Again, this is a set of questions that applies to 29 different industrial sectors, and this includes things like timber yards and mines, where you could create large piles of ore, wood shavings, waste, rock, whatever, and store that outside for shipping and that might be there for a while. This doesn't seem to apply strongly to our focus sectors, such as sectors P or S or R. I would only worry about meeting this exclusion point if you have a rail rack or a private road on your property and you are storing potential pollutants in trucks or rail cars that could get wet or impacted by stormwater.

Haley Hall:

Gotcha! Number nine has me down in the dumps. No waste material except waste in covered, non-leaking containers like dumpsters.

Shannon Oelkers:

I see, I see what you did there. The biggest disqualifier in this area is open topped dumpsters. If your dumpster doesn't have a lid or your staff frequently leave that lid open, that would disqualify you from no exposure certification here. If your housekeeping is poor and you have waste materials all over your yard, like sorbents and plastic liners caught along the fence and oily rags, and open top five gallon buckets, this is also a DQ for you, and this includes like post-project work, like sometimes people are doing huge projects and fixing boats and they have a whole bunch of pallets of waste that they need to like get rid of after the project's done. If you don't take it immediately to your waste maintenance area and you're leaving it in the pallet in the middle of the yard and it's getting wet or could get wet, then that's a violation of your stormwater exemption here.

Haley Hall:

Shannon, every time you say DQ, I just hear a loud buzzer, and I see red lights and I hear eh eh! Bringing us to number 10, we are in the homestretch now. "No application or disposal of processed wastewater unless otherwise permitted.

Shannon Oelkers:

Yes, the big PW. Processed wastewater is any water that does not come from the sky and is produced by an industrial activity. We can think of de-icing fluid, power washing a ship's hull to remove marine debris, power washing a tank to remove bird poop. If you create it, it has to be disposed of through a permitted channel, whether that's a hydrostatic test permit or one of the many wastewater permits available to collect, treat and discharge processed wastewaters. If you create a processed wastewater, which most facilities do in some form, you've got to be able to containerize it, treat it and have that permitting in place or access to a treatment contractor like Republic Services, who can come, suck it up and take it away for treatment and provide you a invoice for it.

Haley Hall:

So last one, number 11, "no particulate matter or visible deposits of residuals from roof stacks and or vents not otherwise regulated, for example under an air quality control permit, and evident in the stormwater outflow.

Shannon Oelkers:

This is another one of the exemptions that applies more strongly to different sectors than P, R or S, which most of our clients fall under. So sometimes I've seen black particulates from propane heaters leave visible deposits on snow piles, but for most of our clients this isn't an issue, especially if they've got air permits in place for their power plant waste incinerators or vapor combustion units. I think something would have to be malfunctioning really badly for this one to not be true for our clients.

Haley Hall:

We made it through that list and you were right. The list looks so simple, but when you sit down and go through each one, it covers so much.

Shannon Oelkers:

It sure does, and the important part to walk away with from this podcast is that it only takes one of these many things that we discussed to not be right, and you have to immediately obtain SWPPP coverage or face pretty stiff penalties.

Haley Hall:

Yikes. So is this a one and done kind of deal? If you fail to meet any of these conditions, you can never have a no exposure certification again?

Shannon Oelkers:

Well, that is some good news, Haley. The MSGP allows for improvements to infrastructure or procedures that will allow you to go from a SWPPP back to no exposure. The kicker here, though, is that you have to show documentable changes. You know I love that word documentable. Just saying you retrained your staff on housekeeping doesn't usually cut it with the state or the EPA. They are usually looking for you to install a roof, pave a parking area, have it drained to a collection sump. They want you to replace the damaged container or install dumpsters with lids if you didn't have them before. They want documentable things. A big problem with keeping the no exposure certification is that if you have a history of reportable spills, like any amount to water, any amount over 10 gallons to land and more than 55 gallons to your secondary containment, that's considered an impact of stormwater and you need to obtain a SWPPP coverage until you can resolve whatever caused that spill. So under the MSGP, any sheen is an impact of stormwater and that kicks you out of the no exposure status. So it's difficult.

Haley Hall:

And is that why Integrity urges our clients to carefully consider no exposure certification?

Shannon Oelkers:

Yeah, In many ways it's a lot of work, almost as much work as a SWPPP, and if anything goes wrong you'll have to get that SWPPP and in a hurry.

Shannon Oelkers:

I'm not saying don't get one, but it's not a hall pass that apparently everybody thinks it is, but we still have to work at it and keep records and do routine inspections and employee training and show you're maintaining compliance, and for a lot of our clients, the SWPPP ends up being easier for them to meet the requirements and less risky for being assessed for violations if they miss something. One other thing I'd like to add, Haley, is that a lot of people don't realize that state and federal regulators can, and often do, inspect no exposure facilities as well as the SWPPP covered facilities, and so I also think there's this misconception that if you get a no exposure, the state's never going to come look you up. No, they do. They inspect no exposure facilities just as much as they do SWPPPs, and often, if you're in the same community as a SWPPP, they'll inspect you all at the same time.

Haley Hall:

So, would you say that this is a key takeaway Shannon, no exposure certification is not a hall pass?

Shannon Oelkers:

Yep, that's exactly right. You're going to go the no exposure certification route. We strongly recommend you do an audit of your facility infrastructure and of the standard operating procedures and take a hard look at what your ideal is and then what's happening in reality at that facility before you commit to a no exposure.

Haley Hall:

Is there anything else you want to say about SWPPPs and no exposure, Shannon?

Shannon Oelkers:

Just one last thing. If your industry is covered under the MSGP, you have to have either a SWPPP or a no exposure certification. If you don't have either one and your SIC code is listed in Appendix D of the MSGP, you're not compliant. Call us, we can help with that. When we do client onboarding we often hear from clients that they don't have a SWPPP because they feel that there's no exposure. But they never went and actually got the no exposure certification. You can't just say I don't have any exposure, I don't need to meet that. You actually have to sign the attestation and then show that you're meeting it. So if you don't have that, that's full noncompliance right there and that's going to be tricky to navigate.

Haley Hall:

Well, that is good to note. Thank you so much, Shannon. I feel like I've learned so much between last episode and this episode.

Shannon Oelkers:

Yeah, thank you, Haley. This was a good and timely topic to cover. It's also an easier one to fix if you're not right with. I hope our listeners enjoyed this run through and I would point all of our listeners to the free resources we posted under the Keeping SWPPP Straight podcast episode. If they want to learn more, I have linked the no exposure certification form to this episode and, as always, if you need help sorting this out, Integrity is happy to help. Just give us a call.

Haley Hall:

Thanks, Shannon.

Shannon Oelkers:

Hi there, this is Shannon Oelkers and, as the owner of Integrity Environmental, I wanted to take a minute here at the end of the podcast to make sure that you knew the following this podcast is for informational purposes only and should not be considered legal or regulatory advice. We are not responsible for any losses, damages or liabilities that may arise from the use of this podcast. This podcast is not intended to replace professional regulatory or legal advice. Is not intended to replace professional regulatory or legal advice, and the views expressed in this podcast may not be those of the host. That would be me or Integrity Environmental. Thank you very much for listening and if you do need professional regulatory advice, we'd be happy to help you as part of our consulting services.

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