Under the federal Clean Water Act (CWA), stormwater discharges “associated with industrial activity” require a National Pollutant Discharge Elimination System (NPDES) permit, unless the facility applies for and obtains an exemption. An NPDES permit is typically a license for a facility to discharge a specified amount of a pollutant into a receiving water under certain conditions. Permits may also authorize facilities to process, incinerate, landfill, or beneficially use sewage sludge.
Companies can apply for two types of NPDES permits: general and individual. So that companies do not have to obtain individual discharge permits for all types of discharge, the EPA allows companies to apply for a more general permit – the Multi-Sector General Permit (MSGP). When the EPA sets the terms for obtaining a MSGP, it sets an expiration for the process so that the EPA can re-evaluate the process for obtaining a MSGP every few years. The current MSGP expired on June 4, 2020, and the EPA’s proposed 2020 National Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit (MSGP), takes effect after that. The public comment period for the new rule closed on June 1, 2020, and it was through these comments that Massachusetts requested that the EPA include PFAS terms in its permitting obligations.
The Massachusetts PFAS Request
- Sector B – Paper and Allied Products
- Sector C – Chemical and Allied Products Manufacturing
- Sector D – Asphalt Paving and Roofing Materials and Lubricant Manufacturing
- Sector K – Hazardous Waste Treatment Storage, or Disposal Facilities
- Sector L – Landfills, Land Application Sites and Open Dumps
- Sector N – Scrap Recycling and Waste Recycling Facilities
- Sector S – Air Transportation
- Sector V – Textile Mills, Apparel, and Other Fabric Products
- Sector W – Furniture and Fixtures
- Sector Y – Rubber, Miscellaneous Plastic Products, and Miscellaneous Manufacturing Industries
- Sector Z – Leather Tanning and Finishing
- Sector AA – Fabricated Metal Products
- Sector AC – Electronic and Electrical Equipment and Components, Photographic and Optical Goods
If adopted, the proposals put forth by Massachusetts, Colorado and New Mexico would impact states well beyond the border of just these three states. The EPA is recognized as the NPDES permitting body in numerous states, including New Hampshire, California, and Washington, to name a few. In addition, in other states were state agencies administer the NPDES program, those states have traditionally used the federal MSGP model in developing their own state practices and requirements.
It is likely that the EPA will finalize the 2020 MSGP by late 2020.
CMBG3 Law is following judicial, legislative, and administrative developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.