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51���� Comments on Two Proposals to Broadcast Site-Specific Stormwater Control Information

51���� recently commented on the U.S. Environmental Protection Agency’s (EPA) proposal to change its general permit that regulates stormwater discharges from most sites that perform – called the Multi-Sector General Permit (MSGP).  EPA’s MSGP proposal would require significant quantities of site-specific data to be submitted electronically, including stormwater pollution prevention plans (SWPPPs) or SWPPP summaries.  This appears to be consistent with a separate EPA proposal – on which 51���� also provided significant comment – to require across-the-board electronic reporting in the NPDES program. Electronic reporting increases the likelihood of enforcement, given the increased availability of data and ease of data analysis.

EPA Proposes Reissuance of General Permit for Stormwater Discharges from Industrial Activities

After receiving significant input from 51���� members, 51���� provided EPA with comment for several of the proposed changes to the agency’s ” (MSGP) for stormwater discharges from industrial sources.   (A separate Construction General Permit is the legal mechanism to authorize stormwater discharges from active construction sites that disturb one acre or more of land.) Construction companies that manufacture, process, or store raw materials (e.g., activities associated with cement or concrete manufacturing, asphalt paving, minerals mining or landfill operations) rely on coverage under EPA’s MSGP, or a state-issued one, to authorize the discharge of stormwater from their “industrial activities.”

���Ұ�’s comment letter focused on several important changes that EPA is considering:

• EPA is proposing to modify the discharges eligible for coverage under the permit.  Discharges to a CERCLA site (one that’s currently listed or yet-to-be determined) would be excluded from general permit coverage, unless specifically authorized by the EPA regional office in which the site is located.
• The MSGP proposes to require more information in an applicant’s “Notice of Intent” to be covered by the permit, which must be submitted to EPA electronically.  Specifically, EPA now wants more information about the location of outfalls, the type of surface water into which the facility discharges and details about the stormwater pollution prevent plan (SWPPP).
• EPA also proposes to require electronic reporting, consistent with its separate proposal to move toward electronic reporting in the NPDES program (see related section of this report). 51���� is concerned that electronic reporting will increase the likelihood of citizen suits and enforcement, given the increased availability of data and ease of data analysis.

EPA’s MSGP is the stormwater permit for most industrial facilities located in the states and other areas where EPA is responsible for issuing NPDES (National Pollutant Discharge Elimination System) permits.  It sets the standard for general permits issued by states that administer their own NPDES programs.  Therefore, what EPA does with its MSGP has a significant impact on how construction companies need to manage their stormwater runoff from “industrial activities.”

The draft MSGP will replace the 2008 general permit that expired on Sept. 29, 2013. However, EPA does not expect to finish reissuance of the new MSGP until spring 2014. Facilities that obtained coverage under the 2008 MSGP prior to its expiration are automatically granted an administrative continuance of permit coverage.  EPA has issued a memorandum concerning new facilities that began discharging stormwater associated with industrial activity after Sept. 29, 2013. for the new facilities that comply with the requirements of the 2008 MSGP, subject to particular terms and conditions as set forth in the memorandum.

NPDES (Stormwater Permit) Electronic Reporting and Transparency Rule

51���� also submitted comments to EPA on its National Pollutant Discharge Elimination System (NPDES) that would create a new regulatory program that would make every construction company’s stormwater permit records and compliance history accessible to the public.

As explained in prior ���Ұ�’s Environmental Observer articles, EPA’s e-reporting rule would require construction site operators covered by an NPDES permit (e.g., CGP or MSGP) to submit a variety of permit-related information electronically instead of using paper reports. The proposed e-reporting rule would make each company’s site-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by permits accessible to the public through EPA’s website.  According to EPA’s proposal, one of the top goals of the e-reporting rule is to promote the full and simplified exchange of NPDES data among states, EPA and the public.

���Ұ�’s comment letter focuses heavily on the fact that EPA has not documented any public need to review site-specific stormwater control information, or how the public gains any useful knowledge about the specific best management practices and processes employed at construction or industrial sites.  In our experience, the primary reason that certain groups have requested SWPPPs is to threaten citizen suits under the CWA for trivial paperwork or other inconsequential inconsistencies relating to how a facility describes versus implements a control measure.  51���� is concerned about the accuracy of data that would appear in EPA’s publicly-available database(s), the likelihood that such data will be misinterpreted or misconstrued, and the potential disclosure of confidential business information.

The proposal is part of an agency-wide effort called E-Enterprise that aims to encourage greater electronic data collection and monitoring. The agency is seeking $60 million in its fiscal year 2014 budget request for the program.

If you need more information, please contact ���Ұ�’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.