On August 16, 2016, the U.S. Environmental Protection Agency (EPA) reached a settlement in Clean Water Act (CWA) lawsuits filed over its 2015 Multi-Sector General Permit (MSGP) for Stormwater Discharges from Industrial Activities. 80 Fed. Reg. 34403 (June 16, 2015). The MSGP is the collective term for the CWA National Pollutant Discharge Elimination System (NPDES) program's general permits for stormwater discharges from industrial facilities spanning 29 sectors, including, but not limited to, chemical manufacturing, textile mills, and timber products. EPA reissues the MSGP every five years. Under the terms of the recent settlement agreement in Waterkeeper Alliance v. EPA (2d Cir. 15-02091), EPA agreed to take certain steps in its proposal for the 2020 MSGP reissuance, and also will propose specific permit changes and provisions not included in the current MSGP. The agreed upon actions and proposed permit changes include the following:

• EPA will sponsor and fund a National Research Council (NRC) study that will evaluate and provide recommendations on: (1) potential changes to current benchmark monitoring requirements used to evaluate the performance of stormwater control measures; (2) the feasibility of numeric retention standards (e.g., volumetric control standards for a percent storm size or based on percentage of imperviousness); and (3) the industrial sectors that EPA should prioritize for its consideration of increased monitoring requirements in the next permit cycle.

• EPA will propose that industrial facilities using coal tar sealant "to initially seal or to re-seal pavement and thereby discharge polycyclic aromatic hydrocarbons ('PAHs') in stormwater are not eligible for coverage under the MSGP and must either eliminate such discharges or apply for an individual permit."

• EPA will propose an escalating series of additional actions permittees must take when stormwater discharges exceed benchmark monitoring targets.

• EPA will propose measures aimed at preventing stormwater discharges that could result in recontamination of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) sites.

The MSGP applies to industrial facilities in Massachusetts, New Hampshire, New Mexico, Idaho, the District of Columbia, most tribal lands, and U.S. territories where EPA serves as the NPDES permitting authority. Facilities located in the other 46 states are subject to state-issued stormwater discharge permits. The EPA MSGP serves as a model for many state permits, and revisions to the EPA permit will typically drive future changes to states' permits when the permits are due for renewal. As part of the settlement, EPA agreed to propose the 2020 MSGP by September 1, 2019, or nine months after the NRC issues its final report, but no later than September 1, 2020. The EPA proposal will likely open a 60-day comment period. The settlement agreement does not, however, specifically address the timeframe for comment.

Commentary

This settlement signals potential changes to the next MSGP, and similar state-issued stormwater general permits, which could impact the broad range of industrial facilities subject to stormwater permitting under the CWA. In particular, current MSGP permittees that continue to use coal tar sealants on pavement and parking lots at their facilities may be required to seek an individual stormwater discharge permit -- often a resource-intensive and time-consuming process. In anticipation of the potential changes in 2020, permittees that wish to maintain MSGP eligibility should weigh the costs and benefits of available non-coal tar pavement sealants and/or the treatment costs for removing the sealants from stormwater discharges. Industrial facilities with significant concerns about the potential changes ahead in the next MSGP permit cycle should track the projected September 2019 permit proposal and submit formal comments.