EPA’s Multi-Sector General Permit: Challenges & Opportunities to Influence Stormwater Permits
This year marks the 30-year anniversary of the U.S. Environmental Protection Agency’s (EPA) first industrial stormwater permit issued under the Clean Water Act (CWA). Some of the issues that the EPA and regulated industries struggled with then, amazingly, continue to be challenges today. New challenges have arisen over the past 30 years, mainly related in one way or another to analytical monitoring strategies and demonstrating compliance with technology-based or water quality-based control measures set forth in the CWA.
Congress amended the Clean Water Act in 1987 to include certain stormwater discharges from various industries and municipalities for permitting under the National Pollutant Discharge Elimination System (NPDES) permit program. The EPA implemented regulations in 1990 that defined “stormwater associated with industrial activity,” and included metalcasting in the “primary metals” (Standard Industrial Classification Code 33xx) category of industrial activity. Then, in 1992, the EPA issued its first industrial permit, which it called the “baseline general permit.”
The EPA always envisioned the baseline general permit as a temporary placeholder permit until a more industry-specific permitting approach could be developed. In fact, while the EPA was drafting the baseline general permit, it also was collecting information from many industries, including ferrous and nonferrous foundries and other primary metals industries, through a process the agency set forth in the 1990 regulations termed “the group permit application process.” That process resulted in the 1995 MSGP, the closest thing the EPA has ever crafted to “industry-specific” stormwater permits. Since 1995, the EPA has promulgated revised and replacement MSGPs in 1998, 2008, 2015 and, most recently 2021.
Evolution of the MSGP
When analyzing the EPA’s evolutionary process for the MSGP, we find a host of issues that have been debated since 1995—such as the value of monitoring benchmarks, as well as newer issues that have been raised in litigation, particularly resulting from the 2015 and 2021 MSGPs. The EPA’s stormwater permit program and comparable programs in authorized states have focused more and more on reducing pollutants discharged during wet weather that may be affecting streams and rivers and causing them to be impaired, particularly for metals and nutrients.
Obviously, for the metalcasting industry, the focus on metals discharges raises challenges, including when the contributing source of many of the metals is the natural background levels of those metals in soil, air deposition, or other diffuse (i.e., non-industrial) sources. These challenges can become significant permit compliance issues for regulated sources, particularly those that must sample their stormwater and compare the results to the EPA’s “benchmarks” that are based on very stringent water quality criteria originally developed for constantly discharged process wastewater from factories and publicly owned treatment works during low-flow conditions in receiving streams (i.e., worst-case exposures for aquatic organisms or recreational contact).
While the EPA’s benchmarks remain a significant source of contention between it and regulated industrial dischargers, some states have taken the EPA’s benchmark monitoring program and expanded the scope, compliance mandates, and potential penalties associated with analytical monitoring. For example, California’s industrial general permit converts EPA benchmarks into what it calls “Numeric Action Levels” for sample results that average above benchmarks, but then also created what it calls “Instantaneous Numeric Action Levels” for two exceedances of modified benchmarks for total suspended solids, oil and grease, or pH. Other states have developed their own twists to the EPA’s benchmarks.
Nevertheless, all stormwater permits that require benchmark monitoring are dependent upon the EPA’s original and subsequent justifications for benchmark monitoring, which have never been independently justified in their development or implementation.
Corrective Action Response Program: AIM
In its recent 2021 MSGP, the EPA is raising the stakes with regard to benchmark monitoring by establishing a new “corrective action” response program that must be implemented if a site’s monitoring results exceed any benchmarks. The new program, Additional Implementation Measures (AIM), has the potential to force industrial dischargers to purchase and install structural stormwater collection and treatment systems if they cannot employ other basic benchmark monitoring programs to get their stormwater discharges under the benchmarks.
One of the most controversial aspects of the new AIM process is the EPA’s effort to revise the original (1995-2000) industrial “fact sheets” that provide guidance for each of the industrial sectors under the MSGP regarding recommended stormwater control measures. The EPA proposed these as “Appendix Q” of its 2020 proposal to revise the MSGP (which became the 2021 MSGP). The regulated community expressed universal frustration for how the EPA had revised its prior fact sheet guidance into a 672-page conglomeration of any possible stormwater control measure ever considered, without any sense of practicality or benefit.
By 2020, industries had gained 25 years of experience implementing the MSGP, and yet the agency did not reach out to regulated entities or separately collect information that would have improved upon the older fact sheets in what could have been a win-win for the EPA and regulated parties.
The EPA originally committed itself to the new AIM process, which contemplated updating its older fact sheets, as part of a settlement agreement it entered with environmental groups that challenged the EPA’s 2015 MSGP. Surprisingly, what the EPA proposed for the AIM process and inclusion of the behemoth Appendix Q did not reflect the nature or scope of those negotiations, while significantly exceeding the scope and intent of that settlement agreement and, arguably, the agency’s legal authority.
As a result of significant comment from the industry and pressure from the Small Business Administration’s Advocacy Office, the EPA did not finalize its proposed AIM process in 2021 as proposed, and it withdrew the entire proposed Appendix Q completely. Instead, the agency has now initiated a new notice and comment process (ongoing at the time of this article’s drafting) to collect industry-specific input on revised industry fact sheets. The casting industry is working diligently on reviewing and commenting on those fact sheets, which will impact future permit compliance requirements as the AIM process is further developed and enhanced in the next MSGP (slated for 2026).
Like EPA benchmarks, in which the agency’s presumed legal basis appears to provide justification for states to adopt or even expand upon the regulatory impact associated with those benchmarks, the EPA’s industry-specific fact sheets containing stormwater control measure menus will ramp up in complexity, cost, and potential liability for regulated parties. Comprehensive industry review and engagement must occur. Once the EPA establishes “minimum” measures for an industry, there will be no turning back; they will be considered the minimum mandatory technology-based controls under the Clean Water Act, often referred to as “Best Available Technology.”
Benchmark and Monitoring Wake-Up Call
Looking forward, it could be argued that a party’s failure to implement any minimum controls—even if they would not provide any additional value or benefit—could ultimately expose that party to enforcement or citizen suit liabilities. The hope is that common sense and logic would prevail, but the lessons from benchmarks and the EPA’s proposed AIM process, let alone ongoing enforcement and citizen suits in more progressive states, can act as a wake-up call to all industries regulated by the MSGP.
Beyond minimum stormwater control measures, the EPA and environmental groups have indicated a strong desire to either eliminate the use of certain products to control discharges of certain pollutants or to rely more heavily on stormwater capture and treatment. In its proposed MSGP in 2020, the EPA wanted to prohibit from MSGP coverage any site that used coal tar sealants to protect asphalt surfaces. The benefits of coal tar sealants, when applied properly, are well documented, while the environmental risks are hotly debated. Nevertheless, the EPA’s effort to prohibit a product’s use in the marketplace through the MSGP was unprecedented and probably unlawful. The EPA backed away from its proposed eligibility requirement, but still added monitoring for pollutants associated with coal tar sealants to many sectors of the MSGP. It will be interesting to see what the EPA does with all the data it will collect through that effort.
The EPA also expanded data it will collect from industrial sectors of the MSGP not previously subject to benchmark monitoring. The 2021 MSGP includes new stormwater monitoring requirements for industries that had never previously collected stormwater samples. As a result, every facility regulated by the MSGP now must monitor for at least pH, total suspended solids, and chemical oxygen demand. Those monitoring results are not subject to EPA benchmarks but will result in significant data being submitted to the EPA to further assess the impacts to receiving waters from industrial stormwater discharges.
With COVID-19, supply chain disturbances, and other significant challenges facing the casting industry, it is completely understandable that stormwater permitting and regulations do not grab everyone’s attention. At the same time, however, the EPA’s stormwater permitting programs seem to be going through a transformation process that demands industry engagement to offset the pressures on the EPA to over-regulate every industrial process. Who would have predicted that the Trump administration EPA would have proposed one of the most sweeping and broad expansions of regulatory mandates to ever hit the MSGP? The final MSGP 2021—promulgated in the last week of the Trump administration—did pull back on many of the proposed mandates. But it left open many questions that will be resolved between now and 2026.
Thirty years ago, industry had to pick its battles and accepted benchmarks as a temporary stormwater permitting tool that the EPA asserted would provide useful “flags” or indicators to industrial facility operators regarding the benefits of their technology-based controls and potential environmental impacts. That theory was enough to give EPA an opportunity in the future to prove that benefits would result from the investment in analytical monitoring and comparing those results to an existing resource of water quality standards and review of best management practices. The basis for benchmark monitoring, however, was not grounded in science, and the EPA never fully justified how and why a facility should use, for example, ambient, low-flow, in-stream water quality standards to gauge technology-based control strategies for stormwater discharges that are episodic, high flow, variable, and likely exist a significant distance from the type of receiving stream used.
Many industries wish there had been a more robust discussion about benchmarks or even legal challenges to the MSGP benchmarks. The EPA promised further scientific and regulatory justification for benchmarks that never came. In hindsight, a simple review of the existing benchmark monitoring mandates reveals numerous inconsistent and illogical results due to the arbitrary nature of the EPA’s original benchmark implementation process. The net result of the current benchmark monitoring scheme is that some less fortunate industries are burdened with a never-ending “do-loop” of monitoring and corrective action.
In 2008, the EPA committed to analyzing all the monitoring data and protocols associated with benchmark monitoring since 1995 to determine whether benchmark monitoring provides “useful indicators of control measure inadequacies or potential water quality problems,” according to the MSGP 2008 Fact Sheet. Whether for fear of what it would find, lack of resources, or lack of interest, the EPA never produced—or at least has never released—any analyses that would support or defend the use of benchmarks.
In 2006, the EPA hired the National Research Council (NRC) to conduct a comprehensive external review of municipal, construction, and industrial stormwater programs. In assessing the EPA’s benchmark monitoring program, the NRC found the MSGP’s approach “has largely been a failure.” Reviews of benchmark monitoring data “showed no relationship between facility type and stormwater discharge quality. The cited reasons for the poor relationship included variability in sampling parameters, sampling time, and sampling strategy—that is, poor data.” The NRC report also found that “it is not clear whether [benchmark] exceedances provide useful indicators of stormwater pollution prevention plan inadequacies or potential water quality problems.” Finally, the NRC concluded that a “national numeric benchmark should be avoided…” and, if the NRC had its way, “the current benchmark monitoring conducted by MSGP facilities would be eliminated.”
With the EPA’s focus on building the AIM process around a combination of benchmark monitoring and comprehensive fact sheets listing stormwater control measures that quickly ramp up in terms of complexity, cost, and liability, regulated parties subject to the MSGP must consider engaging with the EPA to ensure the final AIM process and related tiered compliance program are fair, reasonable, and targeted to the actual pollutant loads generated by a facility’s industrial process. These are critical times for the future of the industrial stormwater permit program.
Jeffrey S. Longsworth litigates and provides legal counsel pertaining to issues that arise under federal environmental laws and regulations. His practice is focused on Clean Water Act matters, especially those issues involving permitting, stormwater, effluent limitations guidelines, enforcement, inspections, and spill prevention across local, regional, and national platforms, as well as emerging contaminants, such as PFAS, sustainability and energy efficiency. He was engaged in negotiating the terms of the original MSGP on behalf of various foundry and metal working trade associations. Longsworth also represented industries that had intervened in Additional Implementation Measures litigation and helped negotiate the scope and limitations of the AIM process.
Click here to view the article in the March 2022 digital edition of Modern Casting.