March 28, 2020
Zachary Koslap and Michael Nines, P.E., LEED AP
On March 2, 2020, the U.S. Environmental Protection Agency (EPA) published notice and requested public comment on the proposed 2020 National Pollution Discharge Elimination System (NPDES) Multi-Sector General Permit for stormwater discharges associated with industrial activity (MSGP). The proposed 2020 MSGP will replace the existing MSGP issued for a five-year term on June 4, 2015 and set to expire on June 5, 2020. The MSGP covers stormwater discharges from industrial facilities in 30 business sectors in states where EPA is the NPDES permitting authority. States who have been delegated NPDES permitting authority often incorporate requirements from the MSGP into their own general permits.
Many of the proposed changes in the MSGP stem from the settlement of litigation over the 2015 MSGP. The settlement called for a study to be conducted by the National Academy of Sciences, Engineering, and Medicine’s National Research Council (“NRC”) on changes that could be made to the MSGP. The study suggested changes focused primarily on monitoring requirements for consideration in the 2020 MSGP. Among the changes arising from the study and settlement agreement that are proposed in the 2020 MSGP are:
- Universal quarterly benchmark monitoring for pH, total suspended solids, and chemical oxygen demand. Current quarterly benchmark monitoring for parameters that are sector-specific would continue under the 2020 MSGP. Repeated benchmark exceedances would be subject to a proposed Additional Implementation Measures (“AIM”) protocol, which would involve the implementation of varying stormwater controls dependent on the degree, or tier, of benchmark exceedances. The AIM requirements would replace corresponding sections regarding benchmark exceedances in the 2015 MSGP. EPA has requested comment as to whether “low-risk” facilities should be able to choose an inspection-only option in lieu of conducting benchmark monitoring.
- New benchmark monitoring for additional business sectors. EPA has proposed to add benchmark monitoring requirements for ammonia, lead, nickel, nitrogen, and zinc to the Oil and Gas Extraction sector (Sector I); add lead and mercury monitoring to the Land Transportation and Warehousing sector (Sector P); and chromium, copper, lead, nickel, and zinc monitoring tp the Ship and Boat Building and Repair Yards sector (Sector R) . Sector-specific benchmark monitoring is not required for these sectors in the 2015 MSGP.
- An additional eligibility criterion that examines discharges to a CERCLA Site. The proposed condition requires discharges to ensure that adequate controls will be implemented so that discharges to a CERCLA Site will not lead to recontamination of aquatic media. This requirement currently exists in the 2015 MSGP for EPA Region 10; the proposal in the 2020 MSGP expands this requirement to all EPA Regions.
In addition to the recommendations from the NRC study, EPA has proposed other changes in the 2020 MSGP, which include:
- An additional eligibility criterion that prohibits stormwater discharges from surfaces paved with coal-tar sealcoat. Operators who will use coal-tar sealcoat to initially seal or re-seal paved surfaces where industrial activities are located, thereby discharging polycyclic aromatic hydrocarbons in stormwater, would be eligible for coverage under the 2020 MSGP only if operators eliminate such discharges. Otherwise, these operators would have to obtain an individual NPDES permit.
- A requirement for operators of facilities in areas that could be impacted by stormwater discharges from major storm events that cause extreme flooding conditions to implement enhanced pollution prevention measures. Such measures include reinforcing material storage structures to withstand flooding and preventing the floating of semi-stationary structures, among other requirements. EPA has requested comment on how these measures might be achieved in practice, and how facilities that are at the highest risks for stormwater impacts from major storms could be identified.
States which implement and enforce their own permitting programs for stormwater discharges, which include Pennsylvania and New Jersey, must ensure that their permitting programs are in compliance with the Clean Water Act. Accordingly, although states may issue permit requirements that differ from EPA’s, many state-issued permits follow the requirements in EPA’s permits. To that end, the changes featured in EPA’s 2020 MSGP may forecast potential changes to state-implemented permitting programs when those permits must be reissued. More focus on enhanced pollution prevention measures for facilities that could be impacted by major flooding events, and additional benchmark monitoring requirements for the oil and gas extraction sector, for example, could be forthcoming to Pennsylvania and New Jersey general permits for stormwater discharges associated with industrial activity.
EPA is accepting comments up until May 1, 2020. If you have any questions or concerns regarding EPA’s proposed 2020 MSGP, please contact Zach Koslap at (484) 430-2330 or MGKF technical consultant Michael Nines at (484) 430-2350