September 18, 2021

Volume XI, Number 261

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EPA’s Multi-Sector General Permit for Industrial Stormwater Challenged in the Ninth Circuit —Plastics a Key Issue

Key Takeaways

  • What happened? On July 1, 2021, the Center for Biological Diversity (the “Center”) petitioned the Ninth Circuit to review EPA’s issuance of the 2021 National Pollutant Discharge Elimination System (“NPDES”) Multi-Sector General Permit (“MSGP”) for stormwater discharges from industrial activities. The petition also challenges the supporting biological opinions issued by the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“FWS”). According to the Center’s press release, the challenge focuses on EPA’s alleged failure to include permit requirements that address the release of plastics, particularly plastic pellets, in stormwater.

  • Who is impacted? In the short term, the petition may affect industrial facilities located in jurisdictions where EPA is the NPDES permitting authority. Longer term, industrial facilities in states that model their NPDES stormwater general permits after EPA’s MSGP could also be impacted.

The Center’s petition is pending with the Ninth Circuit. EPA may respond that the Center’s focus on mitigating and preventing discharges of plastic has already been addressed by the 2021 MSGP, which provides: “Facilities that handle pre-production plastic must implement control measures to eliminate discharges of plastic in stormwater.” This provision was also in the 2015 MSGP. States that model their NPDES general permitting scheme after EPA’s scheme, such as Texas and Virginia, have already incorporated or planned to incorporate the above provision into their respective state general permits. Because this provision is limited to facilities handling pre-production plastic, it is possible that the Center seeks to expand this provision to other types of facilities or industries.

This dispute is still in its early stages. The Center’s brief is not currently due until late September, and EPA’s answering brief is not due until October. Still, depending on the outcome of the petition, industrial facilities may face broader and more stringent requirements related to controlling the discharge of plastics. Further, if EPA settles the case, facilities can expect that settlement terms may be incorporated into future versions of the MSGP. Pending the resolution of the petition, facilities subject to the 2021 MSGP will face some uncertainty over whether the 2021 MSGP will be vacated.

More broadly, the Center’s efforts can be seen as a part of a larger movement to eliminate the discharge of plastics to waterways. For example, the federal Break Free from Plastic Pollution Act, versions of which have been introduced during the 2020 and 2021 sessions of Congress, would prohibit the discharge of plastic from point sources that make, use, package, or transport plastic pellets or pre-production plastic materials. At the state level, there are additional efforts to prohibit or reduce the discharge of plastics. For instance, in Texas, two bills (SB 2097 and HB 3814) were introduced, but did not pass, that would have prohibited the discharge of pre-production plastics. In South Carolina a bill (S 596) was introduced, but did not pass, that would have imposed prescriptive best management practices to prevent the release of plastic pellets. Whether through lawsuits or legislative proposals, there is and will continue to be significant focus on legal action to force the reduction, if not elimination, of discharges of plastics to water bodies.

The Center’s challenge is the only known challenge to the 2021 MSGP, and likely the last. Under the Clean Water Act, the deadline to file a petition challenging EPA’s issuance of NPDES permits is 120 days after the permit is issued. For purposes of judicial review, the “issuance” date is two weeks after the permit’s publication in the Federal Register; in this instance, publication was March 5, 2021, and thus the deadline for filing a petition was July 6, 2021, and has passed.

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 203
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About this Author

Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX
Principal

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party...

512-391-8005
Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

206-620-3027
Erika H. Spanton Environmental Litigation Attorney Beveridge & Diamond Seattle, WA
Associate

Erika H. Spanton represents clients in environmental litigation matters, including climate change lawsuits, Clean Water Act citizen suits, and actions under state water quality laws, CERCLA, and state Superfund statutes. Her regulatory practice focuses on water matters, including stormwater regulation, SPCC compliance, and aquaculture.

Erika comes to Beveridge & Diamond with extensive civil litigation experience. As an Associate at Cole | Wathen | Lead | Hall, her practice focused on litigation defense for insurance carriers, businesses, and individuals in a broad range of state...

206-315-4815
Sarah N. Munger Environmental Attorney Beveridge & Diamond Austin, TX
Associate

Sarah’s versatile practice spans numerous environmental media. She assists clients in regulatory compliance, enforcement actions, and civil litigation under major federal and state environmental statutes, including the Clean Air Act and Clean Water Act. In particular, Sarah has worked with clients to respond to developing legal issues related to:

  • Climate change and natural disasters;
  • Plastic waste;
  • PFAS; and
  • Environmental torts

Prior to joining Beveridge & Diamond, Sarah worked at the Lower Colorado River Authority,...

512-391-8014
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