In nearly all states, stormwater discharges from industrial activities are regulated by permits issued by state agencies under an authorization from the U.S. Environmental Protection Agency (“EPA”). In Massachusetts, however, the Massachusetts Department of Environmental Protection (“MassDEP”) has never sought authorization for a stormwater permitting program and therefore stormwater permits are issued directly by EPA. 

Aside from Massachusetts, the only other states that do not have their own federally approved stormwater permitting programs are Idaho, New Hampshire and New Mexico.^[i] In those few states where there is no state-authorized program, dischargers of stormwater from industrial activities are required to apply to EPA to obtain coverage under a multi-sector general permit (“MSGP”).

EPA issued the current MSGP in 2008 with a five-year term, and the permit was set to expire on September 29, 2013. However, since EPA only just published a draft of the replacement permit for public comment, see 78 Fed. Reg. 59672 (Sept. 27, 2013), the 2008 MSGP has been administratively continued in accordance with 40 CFR 122.6 and will remain in effect until the new draft permit becomes final. EPA estimates that the new MSGP will reissue in the spring of 2014.  Yet, those currently covered by the 2008 MSGP may recall that prior to 2008, stormwater dischargers operated under an MSGP that was issued in 2000 and had to be administratively continued for three years until a new permit could be finalized.

New facilities that begin discharging stormwater associated with industrial activity in the areas where EPA is the NPDES permitting authority will not be able to obtain general permit coverage until a new final MSGP is issued.  Accordingly, EPA has published a memorandum providing a “no action assurance” for these new facilities, stating that EPA will not pursue administrative or civil judicial enforcement action for lack of permit coverage provided a newly-discharging facility (1) is eligible for coverage under the 2008 MSGP, (2) notifies EPA of its operator status and intention to operate prior to discharge, and (3) complies with the obligations of the 2008 MSGP.^[ii]

There are 29 different industrial sectors which are covered by the MSGP. Compliance requirements vary by sector and are tailored to address specific stormwater issues encountered in each sector.

The draft permit proposes several interesting changes to the current MSGP requirements. Among those are the following:

• EPA proposes to require that each permit holder make a copy of its Stormwater Pollution Prevent Plan (“SWPPP”) publicly available, either by identifying a URL link on the notice of intent (“NOI”) that is filed with EPA to apply for the permit and then posting the SWPPP on the internet or by providing substantive stormwater management information in the NOI itself.

• EPA proposes to require electronic submission of each NOI, notice of termination, annual report, and all monitoring data, unless a waiver is granted. Waivers would be limited to individual reporting events.

• EPA proposes to require that all annual reports submitted under the new MSGP include a summary of the routine inspections and assessments conducted at the facility throughout the previous year.

• EPA proposes to prohibit the discharge of pavement wash waters directly to any surface water or storm drain inlet, unless the facility has implemented control measures or subjected the waste water runoff to treatment prior to discharge.

• As with the 2008 MSGP, dischargers to impaired waters (i.e., waters of the U.S. that do not meet an applicable water quality standard), must monitor for all pollutants for which the waters are impaired. However, EPA proposes to clarify that one is considered a discharger to an impaired water if the discharge flows directly to the water, including if the discharge enters a stormwater collection system that discharges to an impaired water.

• EPA proposes to substantially tighten up language associated with the conduct of corrective actions. These actions are currently required under a limited set of circumstances and the proposed permit expands the conditions under which corrective actions will be required, and imposes specific deadlines for completing these actions, including immediate actions on the day of discovery to address conditions that require corrective action.

Those subject to the 2008 MSGP should carefully review the general requirements in the draft permit as well as the sector-specific requirements that apply to their sites, to ensure they understand the changes to their stormwater program that will become effective if the draft permit is finalized as adopted.

_{[i] EPA also issues federal stormwater permits on Indian lands, and in several territories and commonwealths such as American Samoa, the Island of Guam, the Commonwealth of the Northern Mariana Islands, and the Commonwealth of Puerto Rico, and in certain areas where there is a federal agency as facility operator.}

_{[ii] EPA’s no action assurance terminates on March 30, 2014, or 30 days after the issuance of the new MSGP, whichever comes first.}