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EPA Issues New Multi-Sector General Permit for Stormwater Discharges

July 1, 2015

EPA recently issued a new multi-sector general permit under the Clean Water Act (“CWA”) governing stormwater discharges from industrial facilities.[1] The new permit is available to twenty-nine sectors of industry in jurisdictions where EPA is the permitting authority.[2] The permit has several key changes, including requiring disclosures in notices of intent (“NOI”) to obtain coverage in electronic format, increasing the amount of detail regarding stormwater outfalls and receiving waters that a discharger must include in a NOI to receive permit coverage, modifications to effluent limitation requirements, inspections, corrective actions, and other industry-specific requirements. According to EPA, the changes in the new permit are largely designed to streamline compliance, reduce burdens associated with duplicative obligations to some industry sectors, and increase transparency regarding discharges from specific facilities.

Background

The CWA prohibits discharges of pollutants by any person from point sources into waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit.[3] NPDES permits limit the type and quantity of pollutants that may be discharged from a point source, and provide effluent limits that restrict the quantities, rates, and concentrations of discharges of chemical, physical, biological or other constituents.[4]

Section 402(p) of the CWA directed EPA to develop a phased approach for regulating stormwater discharges under the NPDES program.[5] Under the first phase, EPA promulgated regulations governing stormwater discharges “associated with industrial activity” in 1990.[6] Since that time, most states have sought and received authority from EPA to implement the NPDES permitting program, but EPA retains authority to mandate technology-based performance criteria for point source categories (effluent limitations guidelines).[7] States that have been delegated authority to implement the NPDES program have implemented their own industrial stormwater permits for a range of industrial sectors. These permits have obviated the need for individual permits for stormwater discharges in those jurisdictions.

Facilities operating in areas where EPA is the permitting authority, including Idaho, Massachusetts, New Hampshire, New Mexico, Washington D.C., Puerto Rico, Pacific Island territories, and some federal facilities and Tribal areas, have been required to seek coverage under EPA’s multi-sector general permit or, if necessary, an individual permit from EPA.[8] The previous general permit was issued in 2008[9] and expired in September 2013. EPA administratively extended the previous permit to allow the agency time to develop the new permit.

The permit, like its predecessor, contains the following nine-part structure: (1) eligibility, including facilities covered and methods for how to obtain, terminate, and modify permit coverage; (2) effluent limitations; (3) inspections; (4) corrective actions; (5) stormwater pollution prevention plan (“SWPPP”) requirements; (6) monitoring requirements; (7) reporting and recordkeeping requirements; (8) industrial sector-specific conditions; and (9) requirements specific to individual states or Indian Country. Appendices include information regarding forms for NOI, notice of termination, conditional no exposure exclusion, discharge monitoring reports, annual reports, and procedures for determining eligibility regarding specific elements of the permit.

Overview of Changes

The primary change to the permit applicable to all facilities is the increased level of detail that a facility must provide in an NOI and the format in which to do so. Under the new permit, potential dischargers must include information regarding the locations of stormwater outfalls, whether the facility discharges to saltwater and the hardness of the receiving waterbody (if subject to benchmark monitoring for metals), whether the facility discharges to a Superfund site, and general detail contained in their SWPPP if the plan itself is not posted online (described further below). EPA has mandated electronic reporting to reduce burdens on permittees and the agency. EPA will grant a case-by-case waiver to the electronic reporting requirement, but EPA does not intend for waivers to cover an entire permit term.

Additional changes to the permit include the following:

Endangered Species Act: The permit includes changes to the procedures a permittee must follow to establish eligibility regarding Endangered Species Act issues. The permit now contains an appendix outlining the documentation that a permittee must submit within an NOI to obtain coverage under the permit, including showing that the facility meets one of five criteria to be eligible for coverage, and specifying that a permittee must comply with measures that formed the basis for the eligibility determination for the life of the permit and maintain relevant documentation.

Effluent Limit Requirements: Many of the effluent limits included in the current permit are more specific than under the previous permit, such as housekeeping, maintenance, spill prevention and response procedures, and employee training. EPA intends that the changes will clarify the permit requirements and improve compliance.

Inspections: The new permit consolidates the site inspection and routine facility inspection procedures into a single set of inspection obligations to eliminate redundancies.

Corrective Actions: The permit clarifies the conditions for corrective actions that require SWPPP review and modifies the deadlines for completing corrective actions. EPA intends the changes to clarify the agency’s expectations regarding the actions to be taken and the time for doing so.

SWPPP Documentation: The NOI form now requires permittees to provide an electronic version of the SWPPP. If the SWPPP is not provided, the permittee must include specific information from the plan in the NOI, including: onsite industrial activities that are exposed to stormwater (including potential spill and leak areas); pollutants associated with each industrial activity exposed to stormwater that could be discharged in stormwater and any authorized non-stormwater discharges listed in the permit; control measures employed to comply with the non-numeric technology-based effluent limits required in the permit and other measures taken to comply with housekeeping and maintenance; and a schedule for inspections.

Benchmark Monitoring: For facilities that discharge into saltwater, the new permit includes additional non-hardness dependent metals benchmarks, based on available acute ambient water quality criteria for ten metals. The intent of this change is to provide an indicator of how the measures taken to meet effluent limitations are performing.

Industry-Specific Requirements: The new permit includes changes to the requirements for specific industry sectors:

  • Sector A, Timber Products. Discharges resulting from uncontaminated spray-down or intentional wetting of logs at wet dock storage is an allowed non-stormwater discharge, so long as effluent limitations are met, and permittees are granted an allowance or credit for pollutants originally in a waterbody that is used for spray-down.
  • Sector B, Metal Mining. The permit removes the requirement to obtain a separate construction general permit or construction stormwater permit where an operator conducts earth-disturbing activities prior to active mining activities. Instead, the permittee must comply with requirements consistent with limits from the construction and development effluent limitation guidelines and for mine site preparation earth disturbances.
  • Sector H, Coal Mining, and Sector J, Mineral Mining and Dressing. The permit adds requirements similar to the changes to the Metal Mining Sector.
  • Sector S, Air Transportation. The permit incorporates changes to the final effluent limitation guideline for jet and airport deicing operations and clarifies responsibilities that airport authorities may conduct on behalf of airport tenants.

The permit was published on June 16, 2015 and took effect on June 4, 2015.

For more information on stormwater permitting, please contact any member of Marten Law’s Permitting and Environmental Review or Water Quality practice groups.

[1] 80 Fed. Reg. 34,403 (June 16, 2015). EPA’s new permit and fact sheet are available on its website.

[2] As EPA’s federal register notice explains, due to delays in receiving certifications under CWA section 401, the permit is not yet available to private facilities in Idaho (except Indian country), federal operators in Washington State, and the Spokane Tribe of Indians Lands. 80 Fed. Reg. at 34,405.

[3] See 33 U.S.C. § 1311(a); id. § 1342.

[4] Id. § 1362(11).

[5] 33 U.S.C. § 1342(p).

[6] See id. § 1342(p)(2)(B); 55 Fed. Reg. 48,063 (Nov. 16, 1990); 40 C.F.R. 122.26(b)(14).

[7] See 33 U.S.C. § 1314(b).

[8] Washington State, for example, reissued its industrial stormwater general permit earlier this year. Information regarding that permit is available here.

[9] 73 Fed. Reg. 56,572 (Sept. 29, 2008).

 

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