In late September, just before the government shutdown, EPA released its draft “Multi-Sector General Permit” (MSGP) for stormwater discharges from industrial sources.   The MSGP is important for two reasons.  First, it is the stormwater permit for most industrial facilities located in the states and other areas where EPA is responsible for issuing NPDES permits.  Second, the MSGP sets the standard for general permits issued by states.  What EPA does with this permit has a significant impact on how all facilities need to manage their stormwater.

Most industrial facilities use general permits to cover their stormwater discharges.  The terms of EPA’s MSGP are thus critically important in establishing the permitting burden facing industrial  stormwater dischargers.  While that burden has increased substantially since issuance of the first stormwater general permit in the 1990s, EPA’s latest proposal includes some positive changes to improve and simplify the permitting process.

Although much of the proposal retains existing provisions, there are some important changes that EPA is considering.  Some are helpful; others are not.

  • EPA is proposing to modify the discharges eligible for coverage under the permit.  One key change is to clarify that pavement washwaters may not come into contact with hazardous cleaning products (bleach, hydrofluoric acid, sodium hydroxied, nonylphenyls) to be covered under the permit.  In addition, EPA is proposing to clarify that discharges from the spray down of lumber and wood product areas are permitted so long as no chemical additives are used in the spray-down waters or applied to the wood.  Finally, EPA clarifies that discharges to a CERCLA site are not covered unless specifically authorized by the EPA regional office in which the site is located.
  • The MSGP proposes to get rid of the requirement for permittees to document compliance with NEPA either through a “FONSI” (finding of no significant impact) or preparation of an Environmental Impact Statement.  Instead, EPA intends to take care of NEPA compliance by itself when it finally issues the permit.  This is a good change and should reduce the burden of obtaining coverage under the MSGP.
  • The MSGP proposes to require more information in an applicant’s “Notice of Intent” to be covered by the permit, which is submitted to EPA.  Specifically, EPA now wants more information about the location of outfalls, the type of surface water into which the facility discharges and details about the stormwater pollution prevent plan (SWPPP).
  • EPA is proposing to require electonic reporting, consistent with its proposal to move toward electronic reporting in the NPDES program (about which I previously wrote).  As I explained, while electronic reporting conceivably can simplify and streamline submission of reports, it also increases the likelihood of enforcement, given the increased availability of data and ease of data analysis.
  • EPA has modified the criteria for certifying compliance with the Endangered Species Act.  The applicant can do one of the following: (1) show that there are no T&E species or critical habitat in the discharge area; (2) rely upon a nearby discharger’s certification under the new MSGP; (3) show that the discharge is not likely to adversely affect T&E species or critical habitat; (4) rely on a completed consultation with  the USFWS or NMFS; or (5) rely upon a ESA section 10 permit specific to the discharge.  Except for the Options 1 and 2, compliance with this requirement can be burdensome.  Of course, the ESA requirements only apply when EPA is the permit issuer; these requirements do not apply when a state issues the permit.
  • The MSGP proposes to combine the Comprehensive Site Inspection and Routine Facility Inspection requirements into a single inspection mandate.  This should simplify and streamline the inspection process.
  • Preparing SWPPPs should be easier.  EPA is proposing to allow incorporation of permit-listed control measures in lieu of developing site-specific measures.  Submitting SWPPPs should be simpler as well, since EPA is allowing Notices of Intents to include URLs (or, in the alternative, providing specific information about the SWPPP on the NOI).
  • EPA has modified some industry-specific requirements, primarily in the mining industries.  The Air Transportation sector requirements now reflect the effluent limitation guideline for deicing operations.

There’s still time to provide input on this proposal.  Comments are due November 26.