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Hurricane Sandy Highlights Stormwater Management, New Industrial Discharge Permit

By: Michael Bogin

The aftermath of Hurricane Sandy highlights why coastal flooding and stormwater control can be expected to receive increased regulatory attention.  As the New York metropolitan area struggles to regain its footing, regulators can be expected to take a closer look at plans to manage industrial stormwater runoff, which can carry chemicals, oil, and other pollutants.  In fact, the New York State Department of Environmental Conservation (“DEC”) has already made industrial stormwater runoff a high priority.

DEC recently put into place a final general permit for industrial stormwater discharges, the SPDES Multi Sector General Permit for Stormwater Discharges Associated with Industrial Activity, GP-0-12-001 (“MSGP”).  The new permit became effective on October 1, 2012 and replaced the Interim Multi Sector General Permit, GP-0-11-009 (“Interim Permit”), which has now expired.  As of January 1, 2013, industrial discharges will no longer be covered by the Interim Permit.   To gain coverage under the new MSGP, industrial dischargers must file a new Notice of Intent (“NOI”) on or before January 1, 2013.

Industrial dischargers previously covered by the recently-expired Interim Permit are eligible for continued Interim Permit coverage if they revise their Stormwater Pollution Prevention Plans (“SWPPs”) to meet the new MSGP requirements on or before January 2013 and also submit a NOI to DEC for MSGP coverage on or before that date.

The new MSGP requires sources to implement industry-specific Best Management Practices (“BMPs”), or, if this is not feasible, to document why those BMPs cannot be employed.  Especially for facilities that were not already covered by the Interim Permit, or that were not in compliance with it, the tight timeline for revising the SWPPP, installing appropriate BMPs, and performing baseline water quality sampling could prove difficult. Facilities that fail to revise their SWPPPs and file their NOIs by the January 1, 2013 will be operating without permit coverage.  Unpermitted industrial stormwater discharges may be subject to fines of up to $37,500 per violation per day.

The key features of the new MSGP requirements are:

  • Industrial facilities will need to either gain coverage under the new MSGP by January 1, 2013 or demonstrate that their regulated industrial activities are not exposed to stormwater—a “No Exposure” certification;
  • A facility that discharges stormwater to impaired waters must demonstrate that the pollutant of concern is not present at its site, demonstrate that the pollutant of concern is not exposed to stormwater at its site, or certify that its SWPPP includes heightened requirements specified in the MSGP; and
  • Dischargers now must meet sector-specific “benchmark” numeric effluent limits and submit periodic discharge monitoring reports (“DMRs”) for their facilities.

For further information, please contact Michael Bogin.

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