Proposed Stormwater Rules Have Outsized Effect on Massachusetts

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Proposed Stormwater Rules Have Outsized Effect on Massachusetts

News | May 5, 2020
By: Robert Rio

Many Massachusetts manufacturing companies struggling with the effects of the COVID-19 crisis now face another challenge – the US Environmental Protection Agency (EPA) is proposing updated stormwater regulations that could impose economically damaging new regulations on hundreds of businesses.

With Massachusetts home to nearly 33 percent of all the facilities in the country directly under the purview of EPA, these changes could have widespread repercussions.

At issue is this regulatory mouthful: the EPA’s National Pollutant Discharge Elimination System (NPDES) 2020 Issuance of the Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity. Thirty industrial sectors are impacted, though not all sectors are in Massachusetts.

The proposed program is, on its face, an update of the 2015 permit program with new scientific information (permit requirements are updated approximately every five years). However, after the 2015 program was finalized, the EPA was hit with a series of lawsuits demanding more stringent requirements – resulting in settlements that are now impacting the 2020 program.

Some of the changes are minor (although of questionable value) like a requirement that all facilities be required to post a sign indicating that the facility is covered under the program and information on how to contact the EPA if stormwater pollution is observed.

However, some changes are significant:

  • Facilities in three sectors (oil and gas, land transportation, and ship and boat building) would have sector-specific benchmark monitoring requirements. Currently, these sectors do not have sector-specific analytical monitoring.
  • Facilities at risk for extreme flooding conditions would be required to consider other measures such as elevating materials, temporarily reducing outdoor storage, and delaying deliveries. Currently, there is no such requirement.
  • All facilities would be required to monitor for three universal benchmark pollutants for the entire period of permit. Currently, the monitoring requirement is one year unless exceedances occur.

Under current law, facilities that exceed benchmarks only have to review their control measures to see if modification are necessary and continue to monitor until there are no exceedances. The new permit would impose a three-tiered response depending on the threshold of exceedance: low, moderate, or high.

Facilities that exceed benchmarks by a low threshold could simply follow the current rules – review control measures, implement changes if necessary and continue monitoring until there are no exceedances.

Exceedances by moderate thresholds would require a facility to implement all feasible controls as indicated in EPA’s sector fact sheet and continue monitoring until no exceedances occur. Facilities with exceedances by a high threshold would have to install a permanent structural source and treatment controls and continue to monitor until there are no exceedances.

While the new MSGP will eventually impact everyone, Massachusetts and New Hampshire are the only two New England states where EPA has primary authority for industrial discharges. Primary enforcement in most other states rests with state environmental officials, who in this case may have been able to be more flexible given the outsized impact that COVID -19 has had on Massachusetts. (AIM has supported state delegation of this program numerous times).

The 60-day public comment period for the permit update began on March 1 as the Covid-19 crisis began. AIM asked EPA to extend the comment period for at least 90 days following the end of the Massachusetts stay-at-home order, but the agency approved only a 30-day extension to May 31.

Employers may review the regulation and submit comments. Please consider sending a copy of your comments to AIM.  In addition to making comments, AIM intends to ask EPA once again for an additional extension of the comment period.

Contact Robert Rio at rrio@aimnet.org for further information.