On June 3, 2020, the U.S. Environmental Protection Agency's (EPA) 2015 Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity expired. This permitting mechanism is promulgated in several U.S. states and territories, as shown in Figure 1. Any facility currently registered to discharge industrial stormwater under the EPA's authority in those locations is most likely authorized via this expired mechanism.
The EPA was not able to issue a new permit prior to the expiration date. However, in accordance with the Administrative Procedure Act and 40 CFR 122.6, the 2015 MSGP has been administratively continued and all facilities registered under the 2015 MSGP automatically remain covered until EPA issues a new MSGP. No further action is necessary at this time to remain covered by the administratively continued 2015 MSGP and there is no change to the compliance requirements under the administratively continued permit.
The EPA has released a draft version of the new 2020 MSGP, which proposes several major changes to the stormwater permit. The changes are primarily made as a response to the August 16, 2016 Waterkeeper Alliance v. EPA (2d Cir. 15-02091) Settlement Agreement in which the EPA agreed to propose various major permit changes. The following changes to the existing MSGP are proposed in the draft 2020 MSGP:
- The EPA has proposed to streamline and clarify the permit language to facilitate understanding of the permit and increase compliance.
- Proposed eligibility for the 2020 MSGP has been updated from the 2015 MSGP for following facilities and activities:
- Facilities discharging to certain Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) sites of concern for recontamination from stormwater discharge in all EPA Regions. These facilities may be required to notify the EPA at least 30 days prior to submitting a Notice of Intent (NOI) to request coverage under the 2020 MSGP and may be subject to a review by the EPA Regional Office to determine if the facility is eligible for permit coverage.
- EPA proposes that any facility discharging stormwater from paved surfaces that will be initially sealed or re-sealed with coal-tar sealcoat is not be eligible for coverage under the 2020 MSGP. These facilities would be required to either remove the discharge or apply for a site-specific permit to authorize.
- An authorization wait period of 60 days is proposed after submittal of the NOI for all discharges not previously covered under the 2015 MSGP which have pending enforcement actions related to industrial stormwater.
- The EPA proposes that facilities be required to post a public notice sign of permit coverage to include information about the facility stormwater activities and EPA contact information.
- The draft 2020 MSGP requires that facilities evaluate the potential to install enhanced stormwater discharge control measures if they are located in areas that could experience major storm events and extreme flooding conditions.
- The EPA has proposed the following changes to the monitoring conditions of the MSGP:
- A universal benchmark monitoring condition for all industry sectors/subsectors has been proposed. All facilities covered under the 2020 MSGP will be required to conduct quarterly benchmark monitoring for three indicator parameters of pH, total suspended solids (TSS), and chemical oxygen demand (COD) for the term of permit coverage.
- The requirement for impaired waters monitoring has been adjusted to increase the duration of the monitoring to three years and narrow the scope of parameters required to be monitored to include only those pollutants which are causing the impairment and are associated with the industrial activity or are required benchmarks.
- The proposed discharge permit will revise the benchmark monitoring thresholds for selenium, arsenic, aluminum, cadmium, magnesium, iron, and copper based on new EPA Water Quality criteria and historical documentation of toxicity and effects of these pollutants. The adjustments would remove the magnesium and iron benchmarks and allow facilities to conduct site-specific risk analyses for copper exceedances.
- New sector-specific benchmark monitoring requirements are proposed for Sector I (Oil and Gas Extraction), Sector P (Land Transportation and Warehousing), and Sector R (Ship and Boat Building and Repair Yards) facilities. Additionally, polycyclic aromatic hydrocarbon (PAH) monitoring is proposed for sectors that handle petroleum hydrocarbons.
- The EPA has proposed new Additional Implementation Measures (AIM) in the 2020 MSGP. The AIM requirements incorporate a tiered approach into the pollutant benchmark exceedance procedure. Based on the frequency and significance of the exceedances, implementation of increasingly robust stormwater control measures, treatment, or additional monitoring will be triggered. Figure 2 below provides more detail on the tiered AIM requirements.
The EPA estimates that the new requirements in the 2020 MSGP will cost approximately $472.75 per facility per year or $2,363.74 per facility over the five-year permit term.
The final 2020 MSGP is due to be issued no later than November 12, 2020. When the EPA issues the new MSGP, all existing facilities will be notified via email through the NeT (NPDES e-Reporting Tool) MSGP system. Within 90 days of the effective date of the new MSGP, each facility will be required to re-assess their applicability to apply for coverage under the general permit and submit an updated NOI to obtain coverage under the new MSGP.