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Volume X, Number 194

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July 09, 2020

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States Seek PFAS Requirements in Industrial Stormwater General Permit

If three states have their way, EPA’s general permit for industrial stormwater discharges will impose obligations relating to per- and polyfluoroalkyl substances (PFAS). Colorado, Massachusetts, and New Mexico submitted comments on the draft Multi-Sector General Permit (MSGP) that ask EPA to require permitted industrial facilities to monitor PFAS in their stormwater discharges and to develop practices intended to minimize the potential for PFAS to be introduced into stormwater. The comment period on the draft MSGP closed on June 1, and it remains to be seen in the coming months whether EPA will adopt the states’ suggestions.

Both Massachusetts Department of Environment and New Mexico—two states where the new MSGP will apply—request that the MSGP require permitted facilities to monitor their stormwater discharges for PFAS. Massachusetts proposes that EPA should require annual monitoring of, at a minimum, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) at facilities in any of the following sectors covered by the MSGP:

  • 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

New Mexico, by contrast, asks EPA to require all facilities that are also subject to TRI reporting requirements under EPCRA to conduct benchmark monitoring for PFAS. New Mexico, however, does not specify which PFAS compounds would be subject to monitoring or how EPA should set the benchmarks, exceedances of which would require facilities to improve their stormwater best management practices (BMPs) to reduce PFAS in their discharges. TRI, or the Toxic Release Inventory, was expanded by the PFAS Act of 2019 to require reporting for 172 PFAS when present at a TRI facility above 100 pounds, as we previously reported here

Colorado would have EPA impose a series of requirements relating to the use, storage, and disposal of aqueous film forming foam (AFFF)—used in firefighting—and other materials containing PFAS. Permittees would have to, among other things, identify alternatives to using AFFF where feasible, develop procedures for preventing and minimizing releases of AFFF to storwmater when it is used, and contain and dispose of AFFF to prevent its introduction to surface water and wastewater. Colorado would also require permitted facilities to identify locations where PFAS-containing materials are stored and to ensure that materials containing PFAS are not introduced to wastewater or surface water.

EPA’s adoption of the states’ positions would have nationwide implications. The MSGP covers industrial stormwater discharges in the jurisdictions where EPA is the NPDES permitting authority, including Massachusetts, New Hampshire, Idaho, New Mexico, the District of Columbia, Puerto Rico, and tribal lands. Where state agencies administer the NPDES program, states typically use the federal MSGP as a model for developing state general permit terms. EPA will likely issue the final MSGP sometime this fall. 

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 171

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Nessa Coppinger Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Nessa focuses her practice on complex environmental litigation, including multi-district litigation and multi-party product liability.

Clients rely on Nessa to help them solve their most complicated, expensive, and intractable problems. She has led significant trial court and appellate matters, including federal appeals, to a successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also counsels on and litigates...

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Jeanine L.G. Grachuk Environmental Attorney Beveridge & Diamond Boston, MA
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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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Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC
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Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies...

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