EPA Finalizes 2021 Multi-Sector General Permit
- The U.S. Environmental Protection Agency (EPA) has published its National Pollutant Discharge Elimination System (NPDES) 2021 Issuance of the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP).
- Several items from the proposed 2020 MSGP were not adopted in the final version, including a coal-tar sealcoat prohibition, expansion beyond the 2015 MSGP provisions for permitted discharges to CERCLA/Superfund sites, automatic delays to new discharger authorization due to enforcement, universal benchmark monitoring for all dischargers (as opposed to sector-specific requirements) and requiring sector-specific control measure fact sheet checklists.
- The permit's effective date is March 1, 2021. Operators with permit coverage under the 2015 MSGP (which has been administratively continued) have until May 30, 2021, to submit a new Notice of Intent (NOI). Eligible new dischargers are required to submit an NOI for permit coverage at least 30 days prior to commencing discharge.
The U.S. Environmental Protection Agency (EPA) published its National Pollutant Discharge Elimination System (NPDES) 2021 Issuance of the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) on Jan. 15, 2021. The permit's effective date is March 1, 2021. Operators with permit coverage under the 2015 MSGP (which has been administratively continued) have until May 30, 2021, to submit a new Notice of Intent (NOI). Eligible new dischargers are required to submit an NOI for permit coverage at least 30 days prior to commencing discharge. Operators must prepare and implement new or updated Stormwater Pollution Prevention Plans (SWPPPs) prior to filing the NOI, and such SWPPPs must be filed with the NOI, posted on a publicly available website or described in detail in the NOI to make information publicly available.
Original Proposed Changes
As previously described in Holland & Knight's Energy and Natural Resources Blog (see "EPA Issues Latest Draft of Multi-Sector General Permit," March 12, 2020), EPA sought comment on the proposed 2020 MSGP in 12 specific areas identified as key changes from the 2015 version:
- Streamlining and reorganizing the permit sections, and other administrative changes
- Special provisions for stormwater discharges to a federal CERCLA site
- Prohibiting discharges where coal-tar sealcoat is used due to concerns about PAHs
- Delaying authorization where an enforcement action is pending or proposed
- Requiring public signage of permit coverage including how to report a problem
- Consideration of major storm control measure enhancements under certain circumstances
- Adding universal benchmark monitoring for all sectors to include pH, Total Suspended Solids (TSS) and Chemical Oxygen Demand (COD)
- Revision to impaired waters monitoring requirements, and the method for determining natural background
- Updating benchmark values based on the latest toxicity information for certain metals
- Adding benchmark monitoring for Sector I (Oil and Gas Extraction), Sector P (Land Transportation and Warehousing), and Sector R (Ship and Boat Building and Repair Yards
- Requiring additional implementation measures based on a tiered approach depending on the nature and magnitude of the benchmark threshold exceedance
- Revising sector-specific fact sheets to include information about control measures and stormwater pollution prevention for each sector to incorporate emerging stormwater control measures
EPA received 195 total comment letters and 1,865 unique comments on the proposed 2020 MSGP, comments that can be viewed at Docket # EPA-HQ-OW-2019-0372.
Changes Implemented in Final Permit
Although the MSGP has not yet been published in the Federal Register, a Pre-Publication Notice was released by EPA. Significant final permit changes from the 2015 MSGP include the following:
- Permit Streamlining, including reordering the parts (Monitoring, followed by Corrective Actions and "Additional Implementation Measures" (AIM), then SWPPP requirements), simplifying and clarifying permit language
- Adding a new requirement for signage and making the SWPPP publicly available as an attachment to the NOI electronically filed or on a public website
- Addition of a new Part 188.8.131.52, which requires consideration of enhanced stormwater control measures for facilities that could be impacted by major storm events, such as hurricanes, storm surge and flood events
- Monitoring changes, including indicator monitoring (report only) for pH, Total Suspended Solids (TSS) and Chemical Oxygen Demand (COD) for certain subsectors that do not have benchmark monitoring requirements; indicator monitoring for polycyclic aromatic hydrocarbons (PAHs) for certain subsectors and operators; updated benchmark monitoring (values and schedule); and impaired waters monitoring
- Additional corrective action measures called "Additional Implementation Measures" (AIM) for benchmark monitoring exceedances in three tiers
Several items from the proposed 2020 MSGP were not adopted in the final version, including a coal-tar sealcoat prohibition, expansion beyond the 2015 MSGP provisions for permitted discharges to CERCLA/Superfund sites, automatic delays to new discharger authorization due to enforcement, universal benchmark monitoring for all dischargers (as opposed to sector-specific requirements) and requiring sector-specific control measure fact sheet checklists (Appendix Q) as part of AIM Tier 2 compliance.
PFAS Monitoring Requirement Not Included
One topic that is sure to get attention relates to the 2021 MSGP treatment of per- and polyfluoroalkyl substances (PFAS). As previously described in Holland & Knight's Energy and Natural Resources Blog (see "MassDEP Requests EPA Add PFAS to Monitoring Requirements under the 2020 MSGP," June 8, 2020), the Massachusetts Department of Environmental Protection (MassDEP) filed comments, as did the New Mexico Environment Department, requesting that PFAS monitoring be added to monitoring requirements for certain sectors. EPA did not include such a requirement in the 2021 MSGP, but New Mexico included a monitoring requirement as a condition of its Clean Water Act Section 401 Water Quality Certification as described in Part 9 of the permit. Massachusetts' certification repeated the same "recommendation" language that appeared in its comments and thus asserted no binding requirement for the 2021 MSGP. That said, MassDEP has included PFAS monitoring (once an approved EPA analytical method is available) in every draft individual NPDES permit issued since June 2020, when EPA terminated the joint permitting relationship that had existed for decades.
EPA's pre-publication notice indicates that, as part of its implementation assistance, it "revised each of the sector-specific fact sheet guidance documents to include practices that could be used by operators to minimize PFAS in stormwater discharges" and it intends to continue its stakeholder discussions concerning PFAS (p. 24). As of Jan. 25, 2021, those revised Industrial Stormwater Fact Sheets have not yet been posted but are expected soon.
Conclusion and Next Steps
In summary, the 2021 MSGP brings several new obligations across multiple sectors. The entire permit is almost 250 pages (without appendices) so there is a lot to digest. EPA has promised informational webinars and template documents in the coming weeks and months. Stay tuned and reach out to the author or another member of Holland & Knight's Environmental Team if you have questions.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.