In a controversial change, the 2015 version of the Environmental Protection Agency (EPA) general permit for industrial stormwater discharges (known as the Multi-Sector General Permit, or MSGP) expressly prohibits the discharge of any pollutants that are not listed in the permit. The prior version of the MSGP – issued in 2008 – did not include this express prohibition on discharges of unlisted pollutants. As a result of this change, facilities operating under the MSGP may need to supplement their reliance on the general permit with a separate, facility-specific National Pollutant Discharge Elimination System (NPDES) permit or be at increased risk of liability for discharges of unlisted pollutants. The 2015 MSGP became effective on June 4, 2015, and facilities operating under the expiring 2008 version of the MSGP must submit their Notices of Intent to operate under the 2015 MSGP by September 2, 2015, absent an extension from EPA.
The change in the 2015 MSGP could encourage more citizen suits. Since Piney Run Preservation Association v. County Commissioners of Carroll County, 268 F.3d 255 (4th Cir. 2001), courts have interpreted the Clean Water Act’s permit shield provision (33 U.S.C. § 1342(k)) as being sufficiently broad to encompass even pollutants not contained within a facility’s permit. Accordingly, the prior version of the MSGP could shield a discharger from liability even for unlisted pollutants, provided that the facility complied with the terms of the permit and the discharges were within the reasonable contemplation of the permitting authority at the time the permit was written. By including language that expressly prohibits the discharge of any pollutant that is not specifically authorized, EPA appears to have taken away the permit shield defense for discharges of unlisted pollutants by facilities relying on the 2015 MSGP.
EPA’s instructions for completing a Notice of Intent to operate under the 2015 MSGP states as follows regarding this permit shield issue:
You must confirm that you understand that the MSGP only authorizes the allowable stormwater discharges listed in Part 1.1.2 and the allowable non-stormwater discharges listed in Part 1.1.3. Any discharges not expressly authorized under the MSGP are not covered by the MSGP or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA, state, or local authorities via the NOI to be covered by the permit or by any other means (e.g., in the SWPPP or during an inspection). If any discharges requiring NPDES permit coverage other than the allowable stormwater and non-stormwater discharges listed in Parts 1.1.2 and 1.1.3 will be discharged, they must either be eliminated or covered under another NPDES permit.
Companies wishing to challenge EPA’s revision to the 2015 MSGP must file a petition for review in the appropriate United States Court of Appeals within 120 days after it is issued. According to the pre-publication Federal Register Notice, the 2015 MSGP shall be considered issued on June 22, 2015, for purposes of this deadline. Unless this date changes when the official notice is published in the Federal Register, the deadline for filing a petition for judicial review will be October 20, 2015.