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EPA Abandons Joint Issuance of Surface Water Discharge Permits with Massachusetts

In a surprising twist in the permitting relationship between the federal and state governments, U.S. EPA has unilaterally stopped jointly issuing surface water discharge permits with the Commonwealth of Massachusetts, potentially causing confusion and headaches for permittees going forward. EPA’s action was effective June 20, 2020, and EPA provided no public explanation of its decision. Whether this change reflects a larger schism of policy or procedure remains unclear, but it complicates a permitting process that appeared to be working for the regulated community.

Under the former joint permitting arrangement, surface water discharge permits were issued jointly by EPA under the National Pollutant Discharge Elimination System (NPDES) program, which is part of the federal Clean Water Act, and by MassDEP under its independent authority under the state Clean Waters Act. As a result of this collaboration, individual permits and many general permits have been issued jointly, avoiding duplicative effort and potentially inconsistent permit requirements.

There are several important general permits currently in draft form that were proposed to be issued jointly by EPA and MassDEP. These are listed below. It is not clear whether EPA will move forward with these unilaterally.

  1. Proposed modification of the Massachusetts Small MS4 General Permit (available here). These changes were proposed on April 23, 2020, and the comment period ended June 8, 2020.

  2. Draft Aquaculture General Permit for Concentrated Aquatic Animal Production Facilities and Other Related Facilities in Massachusetts, New Hampshire, and Vermont (available here). This permit was proposed on May 11, 2020 and the public comment period closed July 10, 2020.

We note that the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity is only issued by EPA because a Massachusetts permit is typically not required for stormwater associated with these facilities. On March 2, 2020, EPA proposed to renew this permit (available here), and the comment period ended on May 31, 2020. Please see our prior alert on MassDEP’s comments on this draft permit, available here.

No change has been made, so far, as to how an entity in Massachusetts obtains coverage under existing general permits issued jointly by Massachusetts and EPA. The general rule continues to be that, in most cases, the Notice of Intent is submitted solely to EPA. However, in some cases, as described here, MassDEP requires that the Notice of Intent also be submitted to MassDEP, now through its e-permitting portal.

In relation to individual surface water discharge permits, MassDEP has issued guidance, available here, that sets forth the process for obtaining a permit from both EPA and MassDEP. Notably, this will require that EPA request and receive a Section 401 Water Quality Certificate from MassDEP each time it issues an individual NPDES permit or a general permit.

To better understand how the process will work after the split, B&D reviewed several recently-issued draft permits. For each of these, MassDEP’s draft permit incorporated the proposed federal permit by reference and added some additional requirements. These requirements contained some important boilerplate language and added two substantive requirements:

  1. Submittal within six months of the effective date of the federal permit and evaluation by the permittee of whether the facility uses any products containing any per- and polyfluoroalkyl substances (PFAS) and whether use of those products can be reduced or eliminated. In doing so, MassDEP cites its authority under 314 CMR 3.11(2)(a)6, and 314 CMR 4.05(5)(e).

  2. Testing within two years of the effective date of the permit for six PFAS using a method specified by MassDEP. The draft federal permit requires testing for the same six PFAS within six months after EPA’s multi-lab validated method for wastewater is made available to the public. As such, it appears that MassDEP is trying to ensure that even if that method does not become available within two years, testing will occur under the permit. Note, the six PFAS are the ones that MassDEP has proposed to regulate under the Safe Drinking Water Act, PFOA, PFOS, PFHxS, PFHpA, PFNA, and PFDA.

Current and future NPDES permittees should continue to monitor this shift in Massachusetts permitting procedure. 

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 210

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Marc J. Goldstein Environmental Contamination & Project Development Attorney Beveridge & Diamond Boston, MA
Office Managing Principal

Marc helps clients resolve problems and disputes arising from environmental contamination and residential, commercial, and industrial project development.

Marc helps clients resolve problems and disputes arising from environmental contamination and residential, commercial, and industrial project development. Going beyond legal issues, Marc works closely with clients to address the business risks and solve the business problems that complex environmental and land use disputes pose. For example, Marc defends companies against government enforcement actions threatening to shut their...

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Jeanine L.G. Grachuk Environmental Attorney Beveridge & Diamond Boston, MA
Principal

Jeanine is a top-rated Massachusetts environmental lawyer with extensive experience in air, water, and waste issues arising within a variety of industrial sectors.

Solving puzzles is what Jeanine enjoys most about environmental law. She likes taking a complicated set of facts hidden in environmental reports and unpacking the information until the key legal issues are revealed.

When providing advice to clients, Jeanine listens for what they need—whether it’s a quick and actionable answer, a trusted counselor, or a gut check—in addition to their legal questions. She also approaches the practice of law as a marathon, not a sprint, since experience has taught her that a fresh challenge always awaits unseen over the horizon.

Trusted Counselor

Jeanine’s practice focuses on environmental compliance counseling, environmental permitting of energy and brownfields redevelopment projects, and managing environmental risk in complex transactions, such as through environmental insurance products. She advises, counsels, and defends clients in industries including power generation, chemical production, and solid waste disposal, among others.

Jeanine’s career highlights include working with a client to develop a path to closure under Massachusetts cleanup law for a historic release of trichloroethylene (TCE) at a former manufacturing site redeveloped for residential use. She also negotiated with the Massachusetts Attorney General the first-ever amendment of a Covenant Not to Sue to include a parcel of land being acquired by a client.

Jeanine clerked at the Connecticut Supreme Court for former Chief Justice Ellen A. Peters and has lectured on Massachusetts cleanup law and environmental risk insurance.

She is a member of the Board of Directors of the Licensed Site Professionals Association (LSP), an organization dedicated to professionals who investigate and remediate contaminated properties in Massachusetts. She is the first lawyer to serve on its board.

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Dylan J. King Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Associate

Dylan uses his legal and business skills to help clients solve problems.

He maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. He has developed experience with solid waste facility siting, pipeline and hazardous material transportation regulations, site contamination litigation, and local zoning matters. Dylan joined the firm following his graduation from Vermont Law School with a certificate in Energy Law.

During his time at Vermont Law School, Dylan worked with the Vermont Law School Energy Clinic...

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