Potential Impacts of 2016 Settlement Agreement on the Industrial Stormwater Multi-Sector General Per

Dec 06, 2017

In August 2016, EPA settled a Second Circuit lawsuit brought by a number of environmental groups (Riverkeeper v. EPA) and entered into an agreement arising from EPA’s issuance of the 2015 Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (the MSGP).  The agreement requires that EPA take certain steps and provide additional measures concerning benchmark monitoring when it issues its next MSGP, purportedly in 2020. 

First, the agreement requires EPA to fund a National Academy of Science study to “evaluate whether there are any improvements to benchmark monitoring to allow EPA to more accurately evaluate the performance of industrial activity-related stormwater control measures.”  In addition, the study will “evaluate the feasibility of numeric retention standards (e.g., volumetric control standards for a present storm size or based on percentage of imperviousness).”  Effectively, the study is intended to evaluate whether additional or more stringent benchmarks should be set and evaluate whether additional controls (known as best management practices (BMPs)) should be imposed on certain industries.

Second, and more importantly, the agreement will impose required actions on permittees in the event their discharge contains constituents above the benchmark concentrations.  In the first tier, where the annual average discharge concentration is above the benchmark or any single sampling concentration result is over four times the benchmark, the permittee “must immediately review the design, selection, installation and implementation of BMPs and make modifications “necessary to meet the benchmark threshold”.  Typically, any modification will have to be made in fourteen days.  In the second tier, if two consecutive annual average concentrations are above the benchmark, two sampling results within a two year period are over four times the benchmark or a single result is over eight times the benchmark, the permittee “must implement all feasible control measures” in the relevant sector-specific fact sheet within fourteen or forty-five days. Finally, the third tier requires that the permittee “must install structural controls” within thirty or ninety days when three consecutive annual average concentrations are above the benchmark, three sampling results within a three year period are over four times the benchmark, two sampling results over three years are over eight times the benchmark or four consecutive samples are over a benchmark and their average is over two times the benchmark.

There are two likely scenarios that will result from the agreement.  First, it is unclear whether the benchmarks and “suggested” BMPs currently in place will remain the same or be revised.  Given that the group performing the study may be selected by EPA with input from the environmental groups, some speculate that changes will trend toward more stringent concentrations and practices.  Second, although “exceedances” of benchmarks themselves likely will continue to be categorized as “non-violations”, the resulting permit will impose required significant management practices on the permittee if the permittee’s discharge is above the benchmark concentrations; failure to implement the required practices will constitute a permit violation.  Finally, because the agreement is the result of a lawsuit and binds EPA, it is unlikely that a change in administration will have any impact on the terms of the agreement.

In short, if your facility’s discharge is not currently meeting the benchmark concentrations, it should be prepared to implement onerous mandated measures in very short time-frames and any failure to do so will constitute a permit violation subject to enforcement action or civil suit.