EPA Issues New Industrial Stormwater Permit

On September 22, EPA issued a new Stormwater Multi-Sector General Permit (MSGP) to cover 4,100 facilities with discharges associated with an industrial activity. The permit replaces the MSGP that was issued in 2000 and expired in October 2005. The expired permit continued to be valid for facilities that were covered by the permit at the time it expired.

The new permit applies to states not authorized to implement EPA’s NPDES program, including Massachusetts and New Hampshire. It will be effective as of September 29, 2008.

Although EPA claims of regulatory reform sometimes ring hollow, the new MSGP truly does seem to be an improvement over the prior MSGP for industrial facilities. One significant improvement is that permit now separates technical requirements for effluent limitations from the requirement to prepare and implement stormwater pollution prevention plans (SWPPP). Importantly, EPA has clarified that a SWPPP is not an effluent limitation. Therefore, industrial facilities may amend SWPPP without EPA approval. More important, because the SWPPP is not an effluent limitation, noncompliance with the SWPPP will not subject a permittee to claims that he/she has violated an effluent limitation (though noncompliance with a SWPPP may be a violation of a record-keeping requirement).

EPA has also significantly streamlined its filing and compliance systems. First, notice of intent to be covered by the MSGP may be made electronically, through a new “eNOI” system. Second, EPA has created a “Water Locator” tool, which will enable facilities to obtained certain relevant information, such as applicable total maximum daily loads, or TMDLs, on-line. Facilities will also be able to provide required monitoring data on-line.

In short, while the new permit may not eliminate any substantive complaints that industrial facilities may have with EPA’s stormwater program, it should reduce transaction costs associated with compliance.

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