EPA Restricts Permit Shield in New Industrial Stormwater General Permit

In its updated Clean Water Act Multi-Sector General Permit for stormwater discharges from industrial activities issued June 5, EPA has explicitly provided that non-stormwater discharges of any pollutants are not authorized and will either have to be eliminated or covered by a separate individual NPDES permit. Substantial litigation has occurred under the previous version of the industrial stormwater general permit, which did not contain the explicit ban, over whether a permittee is shielded from liability for pollutants not specifically listed in its coverage under the general permit. Under the Fourth Circuit’s landmark decision in Piney Run Preservation Association v. County Commissioners of Carroll County, MD, 268 F. 3d 255 (2001), the permit shield applies to pollutants not specifically listed if discharges of such pollutants were “within the reasonable contemplation” of the permit writers. A more recent case in the Ninth Circuit, Alaska Community Action on Toxics, et al. v. Aurora Energy Services, et al., (No. 13-35709, 9th Cir., 2014), ruled that discharges of solid coal were not covered by the permit shield, because they were implicitly forbidden in the permit. In the updated permit, EPA sought to prevent future unpermitted discharges by stating explicitly that “if non-stormwater discharges requiring NPDES permit coverage other than those specifically authorized in Part 1.1.3 will be discharged, such non-stormwater discharges are not authorized by the permit and must either be eliminated or covered under another NPDES permit.”

For more information on industrial stormwater permitting, contact Steve O’Day or Andy Thompson.

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