Before the Stormwater Tsunami Hits

The next industrial stormwater Multi-Sector General Permit (MSGP) is due in 2020. Even if the current EPA officials manage to put in place its deregulation agenda, this 2020 permit is subject to a settlement that could significantly increase the industrial stormwater permitting reach and associated costs. Here’s what’s going on and what you can do.

In addition to considering the NRC study recommendations for the draft 2020 MSGP, under the terms of the Waterkeeper settlement, which we reviewed in yesterday’s Advisor, the EPA will consider a number of other components. EHS managers should take note and be prepared to be involved in the permit development.

Comparative analysis. The Agency will review examples of numeric and nonnumeric effluent limitations (including complete prohibitions, if any) applicable to the discharge of industrial stormwater that have been set in other jurisdictions and evaluate the bases for those limitations. So, the next MSGP could include some very strict effluent limitations that are currently operative in maybe just one state.

AIMs. The EPA agreed to include additional implementation measures (AIM) requirements in the benchmark monitoring section of the proposed MSGP This would involve a three-tiered series of escalating responses that will be required when permittees’ stormwater discharges exceed benchmark monitoring targets. Some examples of possible required responses are:

• Tier 1: If an annual average for a parameter is over the benchmark threshold; or a single sampling event result for a parameter is over 4 times the benchmark threshold, the selection, design, installation, and implementation of its control measures must be immediately reviewed to determine if modifications are necessary to meet the benchmark threshold for that parameter.

• Tier 2: If two consecutive annual averages for a parameter are each over the benchmark threshold; or two sampling event results for a parameter within a 2-year period are over 4 times the benchmark threshold; or a single sampling event for a parameter is over 8 times the benchmark threshold, all feasible control measures in the relevant sector-specific fact sheet must be implemented.
• Tier 3: If three consecutive annual averages for a parameter are each over the benchmark threshold; or three sampling event results for a parameter within a 3-year period are each over 4 times the benchmark threshold; or two sampling events for a parameter within a 3-year period are each over 8 times the benchmark threshold; or four consecutive samples for a parameter are over the benchmark threshold and their average is more than 2 times the benchmark threshold, structural source controls (permanent controls such as permanent cover, berms, and secondary containment), and/or treatment controls (e.g., sand filters, hydrodynamic separators, oil-water separators, retention ponds, and infiltration structures) must be installed within 30 days.

Permit eligibility. In the next draft MSGP, the EPA is required to propose a provision that could seriously affect anyone who initially applies for coverage under the MSGP and is subject to a stormwater-related enforcement action. Under the provision, the EPA would be able to hold the coverage for an additional 30 days to consider whether any additional stormwater control measures are warranted.

Coal tar sealant. The EPA will be required in the next draft MSGP to include a provision that anyone who uses a coal tar sealant to initially seal or to reseal pavement would not eligible for coverage under the MSGP. Coal tar sealants discharge polycyclic aromatic hydrocarbons (PAHs) into stormwater. Anyone who uses coal tar sealant would be required to either eliminate PAH discharges or apply for an individual permit.

Takeaway for EHS Managers

The industrial stormwater management provisions required under the Waterkeeper settlement could put facilities between a rock and a hard place, i.e., the high costs required to comply with the 2020 MSGP or applying for an individual permit. Neither option is pretty.

Any EHS manager in charge of stormwater compliance at a facility should immediately start following the status of the NRC study. Task force recommendations are due to the EPA by the end of next year. In addition, keep an eye on developments at the EPA. Under the Waterkeeper settlement, the proposed 2020 MSGP is due out by September 1, 2019, and the final MSGP within 9 months. Be prepared to comment on the provisions that could adversely affect your facility operations.