No Discharge on a DMR? Learn if you're putting yourself at risk.
Having a NPDES stormwater permit means having responsibilities, such as doing your regular stormwater sample reporting, usually via a Discharge Monitoring Report (DMR), which can be a very intimidating task. Particularly, now that electronic reporting is a requirement and is being implemented almost everywhere in the US.
The entire DMR process is now confusing, complicated, poorly functioning, full of "codes" and more headaches. So what should you do if you don't get a stormwater sample? If you're tempted to enter "NODI" or "no discharge" on that DMR, you should think twice.
Can I report a No Discharge on a DMR?
So two things are going on, and neither of them are easy when it comes to the entire stormwater sampling process.
- Getting a stormwater sample sucks. Does anyone like standing outside in the rain doing this?!
- Reporting is even worse! Now that half the country (or more) is reporting electronically on broken systems that vary from state to state, we're seeing very real problems with this poorly executed system.
Those two pain points aside, what happens if you didn't get a sample during your monitoring period? The question immediately becomes:
How do I report no samples on a DMR? Can I report NODI if I didn't get a stormwater sample?
The answer is you can do whatever you want, with a huge disclaimer!
Stop right now and ask yourself, and be honest, do you have a real, legitimate reason you didn't get a sample? Was there legitimately no discharge? Maybe it didn't rain that much, or your site is designed to hold water for use. If there legitimately was no discharge that's alright.
If you didn't want to go outside and get wet, were too busy, or forgot, those are not legitimate reasons to claim no discharge. Why not? Because your site was still discharging, you just didn't get a sample of the discharge!
No Discharge vs No Sample Taken
The difference between a No Discharge or NODI and not taking a sample is huge. One is legitimate, the other is you not following the rules.
So can you claim a NODI on your DMR? The answer is, no. It's not accurate and yes, you could get into trouble - big trouble!
Because really, what are you saying? It didn't rain, and didn't discharge from your site? If the answer is yes that it didn't rain or didn't discharge from your site, and you have solid documentation to back that claim up, then you'll probably be okay. How can you back that up? Data. A rain log, or evidence that your capturing and using water on your site would probably be acceptable.
But no guarantees.
Frankly, most government agencies and 3rd party environmental groups don't believe you at all. They'll use data from nearby rain monitoring stations to try and prove your lying, and they do this all the time. They think you just don't want to be bothered sampling. You really, really need to have good confirming documentation. Records, photographs, data on rain events, you name it. And you better be getting out there and looking at your outfalls, each time it rains.
I Have A No Discharge Legitimately!
We deal with some sites that retain nearly all stormwater on site during most storm events for further use. Sites that use water for processes, like concrete plants for example, retain the water to use since it's a free product they'll otherwise need to spend money purchasing.
So during a quarter, or 6 months, or an entire year, they simply don't get enough rainfall to cause a stormwater discharge. We're not saying it didn't rain, we're saying it didn't discharge. Big difference! And, very legitimate!
In that case, good records, inspections, photos, etc., and you'd probably be safe in reporting NODI on your DMRs.
What if you didn't take a stormwater sample?
But what if that wasn't the case? What if, for example, you forgot to take a sample? You were sick, out on vacation, busy, didn't want to go outside and get wet, or just plain forgot? Well then, make no mistake, reporting NODI is inaccurate.
Just to be clear, our professional opinion is you should never report NODI because you just couldn't get the sample. It's not technically correct and in many instances over the years we've seen severe enforcement actions occur because of incorrect reporting. State agencies say it, the USEPA has said it, we say it to our clients, that lying and reporting a NODI when one did not occur is completely unacceptable and incorrect. Maybe your state agency is saying otherwise, but in the states we've worked in this is almost always the same mentality held by regulators.
The only time when you can report NODI is when there actually has not been a discharge! Not when you forgot, or were too busy, or just didn't want to. In any of those bogus situations, you cannot report NODI without risking repercussions. And, the repercussions can be severe. They can range from simple monetary fines to increased sampling and monitoring requirements to even criminal prosecution. Yes, criminal as in police and handcuffs and legal problems.
Think of it this way. If there is any chance that water went out your stormwater discharge outfall, then you shouldn't report NODI or No Discharge on a DMR.
If you missed your chance to sample, you're in a jam and there's no easy solution. There are no DMR codes for "I forgot" or "I was away from work when it happened" or "I was too busy".
So what should you do?
What to do if you didn't get a sample but can't claim NODI.
Over the years, this has generally been the advice we've given our clients. Always check with your state agency what's the best course of action, but this is how we usually proceed.
- Call your NPDES permit enforcement person immediately at the end of the sampling period.
- Explain your case. If you forgot, were away on vacation, home sick, had the busiest month ever in your business, had staffing problems, whatever, tell them. Be truthful.
- Ask them how you should report. Get them to participate in the matter and find out how they would like YOU to proceed. Follow their instructions.
- If you'd rather not do this (or are too concerned) then have an attorney or a qualified and experienced stormwater permit consultant do it for you.
State to state, you're probably going to get a different answer as to what and how you should report on your DMR. But clearly, you don't want to report NODI, since that probably isn't the truth.
Can I get in trouble for reporting NODI?
YES. Yes, you can get in a lot of trouble.
Make no mistake, under these circumstances, reporting NODI might not be the truth. This goes double if there is any sort of verifiable evidence to support there was a discharge. We've seen cases where a site claimed no discharge for an entire monitoring period, and while the inspector was at the site during that same period, water was discharging from the site! They had pictures of the discharge, saw the NODI on the DMR at the end of the period, and threw the book at this one particular company for completely lying.
Reporting anything other than the truth on a DMR (or any other government form) is not something we'd ever recommend. It's like lying on your taxes. Do you really want to have a government agency breathing down your neck because you needed to fudge some numbers a little bit?!
And like stated above, the consequences can be severe. It might, for example, be considered to be a criminal violation of the Clean Water Act or your state's NPDES permitting program (we're not lawyers here so bear with us) since you are viewed as having "lied" on the DMR. Do you want to face legal troubles because you forgot to get a sample and wanted to cover yourself? Doesn't sound like a good idea to me.
Always Get Your Stormwater Sample.
How to avoid getting into this situation when it comes to stormwater sampling & monitoring? Here are some tips:
- Make sure you get a sample during a qualified storm event. Think of this as the exact opposite of a NODI. You can't get a sample if your site isn't discharging. Yes, regulators are checking rain data to make sure it's raining on the date and time you took a sample! Don't lie!
- Stormwater training is your friend. Make sure you know, darn well, how to take a sample, when, and where to sample. Make sure you have a backup in-case you're home sick with the flu or on a vacation. Stormwater training for you, and some select members of your staff ensures that you'll be ready to get a sample.
- Take your sample during a qualified storm event! Do I sound like a broken record? Get your sample. Get your gear, get your jacket, and go outside and get a stormwater sample from your outfall. Send it to the lab, test the pH, do whatever you have to do, just get that sample!
- Keep records of everything. I know, more paperwork or time punching in numbers into a computer. Great. But, we recommend daily records of whether or not it rained, if your outfall(s) discharged, was it a valid storm event (many areas call this a qualifying storm event), and maybe even take pictures. If you can (or need to), use a rain gauge to keep track of rainfall at your site, or use a reputable internet source such as Weather Underground to check rain data. But whatever, document, document, document.
For most permitted facilities, they have plenty of time to get a sample. You going to tell me you couldn't get a sample once per year? Once every 6 months? Heck, even once in 3 months? If you really, truly couldn't, then have great documentation to back you up. And that documentation can't be you forgot, were sick, or didn't want to. Otherwise, you're in a jam, and reporting NODI might make it a lot, lot worse.