2015 EPA MSGP Response to Comments June 4, 2015



## Response to Public Comments

EPA NPDES 2015 Multi

- Sector General Permit (MSGP)

June 4, 2015

Docket ID #: EPA

- HQ

- OW

- 2012

- 08032015 EPA MSGP Response to Comments June 4, 2015

Table of Contents

Comment Response Essays

................................................................................................................. 1

Comment Response Essay 1 Monitoring

........................................................................................... 2

Comment Response Essay 2 Air Transportation Sector

.................................................................... 18

Comment Response Essay 3 Mining Sectors

.................................................................................... 24

Individual Comments and Responses

................................................................................................ . 49

Issue Category: Section 1.0 - General MSGP Comments

................................................................... 50

Issue Category: Section 1.1 - Permit Eligibility

................................................................................. 80

Issue Category: Section 1.1.1 - Discharges Mixed with Non

- Stormwater

..................................... 106

Issue Category: Section 1.1.2 - Enda ngered and Threatened Species and Critical Habitat Protection

.............................................................................................................................................. 111

Issue Category: Section 1.1.3 - Historic Properties Preservation

................................................. 118

Issue Category: Section 1.1.4 - Discharges to a Federal CERCLA Site

............................................ 121

Issue Category: Section 1.1.5 - Permit Shield Provision of the CWA Section 402(k)

...................... 143

Issue Category: Section 1.2 - Permit Authorization

........................................................................ 153

Issue Category: Section 1.2.1 - Submitting N OI

.......................................................................... 154

Issue Category: Section 1.3 - Terminating Coverage

...................................................................... 159

Issue Category: Section 1.4 - Conditional Exclusion for No Exposure

............................................... 161

Issue Category: Section 1.5 - Permit Compliance

........................................................................... 163

Issue Category: Section 2.1 - Control Measures

- General

................................................................ 165

Issue Category: Section 2.1.3 - Numeric Effluent Limits

.............................................................. 207

Issue Category: Section 2.2 – Water Quality

- Based Effluent Limits

................................................. 213

Issue Category: Section 2.2.2 - Discharges to WQ

- Impaired Waters

............................................ 225

Issue Category: Sectio n 2.2.3 - Tier 2 Antideg requirements

....................................................... 229

Issue Category: Section 3.0 - Inspections

- General

............................................................................. 231

Issue Category: Section 3.1 - Routine Inspections

.......................................................................... 233

Issue Category: Section 3.2 - Quarterly Visual Assessments

........................................................... 236

Issue Category: Section 4.0 - Corrective Actions

- General

................................................................... 238

Issue Category: Section 4.1 - Condit ions requiring SWPPP Review

.................................................. 243

Issue Category: Section 4.2 - Corrective Actions Deadlines

............................................................. 246

Issue Category: Section 5.0 - SWPPP

- General Comments

.................................................................. 260

Issue Category: Section 5.1 - Person Responsible for SWPPP Prep

.................................................. 264

Issue Category: Section 5.2 - Conten ts of Your SWPPP

................................................................... 2 652015 EPA MSGP Response to Comments June 4, 2015

Issue Category: Section 5.2.2 - Site Description

......................................................................... 266

Issue Category: Section 5.2.3 - Summary of Potential Pollutant Sources

..................................... 268

Issue Category: Section 5.2.4 - Stormwater Controls

.................................................................. 274

Issue Category: Section 5.2.5 - Schedules

.................................................................................. 275

Issue Category: Section 5.3 - SWPPP Signature

.............................................................................. 276

Issue Category: Section 5.4 - SWPPP Availability

........................................................................... 277

Issue Category: Section 6.0 - Monitoring

- General Comments

............................................................ 291

Issue Category: Section 6.1 - Monitoring Procedures

..................................................................... 299

Issue Category: Section 6.2 - Required Monit oring

........................................................................ 302

Issue Category: Section 6.2.1 - Benchmark Monitoring

.............................................................. 303

Issue Category: Section 6.2.2 - Effluent Limitations Monitoring

.................................................. 328

Issue Category: Section 6.2.3 - State or Tribe Provisions Monitoring and Reporting

..................... 331

Issue Category: Section 6.2.4 - Discharges to Impaired Receiving Waters Monitoring and Reporting

.............................................................................................................................................. 332

Issue Category: Section 6.2.5 - Mo nitoring Required by EPA

...................................................... 336

Issue Category: Section 7.0 - Reporting

- Recordkeeping

- General Comments

....................................... 337

Issue Category: Section 7.1 - Electronic Reporting

......................................................................... 341

Issue Category: Section 7.3 - Additional SWPPP Information Required in Your NOI

.......................... 347

Issue Category: Se ction 7.4 - Reporting Monitoring Data to EPA

..................................................... 351

Issue Category: Section 7.5 - Annual Report

.................................................................................. 353

Issue Category: Section 7.6 - Exceedance Report for Numeric Effluent Limits

.................................. 356

Issue Category: Section 7.7 - Additional Reporting

........................................................................ 357

Issue Category: Appendix A - Definitions and Acronyms

.................................................................... 358

Issue Category: Appendix D - Activities Covered

............................................................................... 365

Issue Category: Appendix E - Endangered Species Procedures

........................................................... 366

Issue Category: Appendix F - Historic Preservation Procedures

.......................................................... 368

Issue Category: Appendix G - Not ice of Intent

................................................................................... 372

Issue Category: Appendix I - Annual Reporting Form

......................................................................... 375

Issue Category: Appendix K - No Exposure Certification

..................................................................... 376

Issue Category: Appendix M - Discharge Monitoring Report (DMR) Form

........................................... 378

Issue Category: Appendix P - List of Federal CERCLA Sites

.................................................................. 379

Issue Category: Overall Cost Issues

.................................................................................................. 381

Issue Category: Analytical Benchmark Monitoring Costs

................................................................... 3892015 EPA MSGP Response to Comments June 4, 2015

Issue Category: Galvanizing Industry Form Letter

.............................................................................. 390

Issue Category: Duplicates

.............................................................................................................. 392

Issue Category: Reference to Other Letters

...................................................................................... 3932015 EPA MSGP Response to Comments June 4, 2015

1 

# Comment Response Essays2015 EPA MSGP Response to Comments June 4, 2015

2 

### Comment Response Essay 1 Monitoring

The following are responses to comments on the monitoring requirements in the MSGP, organized by topic.

Benchmark Monitoring

General Critiques of Benchmark Monitoring

EPA received many comments that opposed some or all aspects of the benchmark monitoring requirements in the proposed permit. The following is a summary:

• Several benchmark parameters are commonly found in soils and the environment, and contribute
to the high percentage of facilities exceeding benchmark limits.

• Costly corrective actions do not result in benchmark compliance for subsequent sample monitoring events.

• Benchmarks do not provide any be nefits for assessing SWPPP/BAT compliance; provide random or imprecise data that wrongfully implies that facilities are not meeting BAT; were denigrated by
the NRC report as not helpful; and are not necessary for assessing compliance with WQBELs.

• There is no clear connection between the benchmarks and control measure effectiveness at mining sites; there has been no analysis done concluding that a certain degree of pollutant
reduction is generally achievable at these sites.

EPA’s position remains that benchmark monitoring is part of a larger scheme to include water quality- based effluent limits in the permit to ensure that the permit includes limits to achieve water quality
standards; exceedance of a benchmark concentration is not in and of itself a violation, but rather is a trigger for the operator to investigate and take corrective action, as appropriate. EPA also acknowledges that benchmark exceedances are not necessarily indicative of a water quality issue, but are meant to act as a screen to identify potential water quality issues and ultimately avoid dischargers discharging stormwater from industrial activity that exceed water quality standards, which is not permissible under CWA section
301(b)(1)(C) and EPA’s implementing regulations.

EPA’s approach fo r benchmark monitoring since its first issuance of the MSGP in 1995 has been to require monitoring for pollutants of concern in stormwater on a sector

- specific basis. The requirements are derived from discharge data and other information submitted to EPA by regulated facilities as a part of the old group application process. EPA then established benchmark monitoring thresholds for the various pollutants that were identified in such data and information as being discharged from the different sectors of industrial activity. The actual levels selected for the benchmark monitoring thresholds are based on EPA’s CWA section 304(a) recommended water quality criteria (i.e., criteria that EPA has issued and updates from time to time that reflect ambient levels of p ollutants that may exist in surface waters while still attaining CWA section 101(a)(2) “fishable/swimmable” uses). Accordingly, the benchmark monitoring requirements in the MSGP are appropriately tailored to the pollutants of concern in each sector and at levels that are appropriately tailored to water quality protection.

EPA has also determined that complying with the benchmark monitoring requirements in the MSGP is economically practicable, as EPA views its authority for including these requirements in t he permit as both water quality

- based and technology

- based. As noted in the final MSGP Fact Sheet, EPA does not anticipate that corrective actions undertaken in response to benchmark exceedances under the MSGP will necessitate complex or costly actions for most permittees; rather, modifications to the stormwater controls2015 EPA MSGP Response to Comments June 4, 2015

3 in response to benchmark exceedances will in most cases be commonsense and pollution prevention

oriented. In some cases, when pollution prevention measures do not prove to be adequate, buil t or

installed treatment control s may also be needed to provide sufficient means for minimizing pollutants in stormwater discharges. EPA expects the great majority of permittees performing corrective actions will determine there are modifications that can be made to the control measures that are technologically available, and economically practicable and achievable. The MSGP provides considerable flexibility to permittees in selecting the control measures used to meet the permit’s technology

- based and water quality- based effluent limits, and EPA recognizes that the control measures needed to adequately minimize pollutants will vary considerably for each facility. EPA also notes that benchmark monitoring applies to only approximately half of the covered facilities, many of which will completely fulfill the benchmark monitoring requirements in the permit after the first year of permit coverage or will qualify for one of the exceptions to reduce or discontinue monitoring (e.g., because exceedances are due to pol lutants in the natural background; because no further pollutant reductions are technologically available and/or economically practicable and achievable). For facilities that are required to conduct continued benchmark monitoring throughout the permit term, laboratory costs are not expected to be unduly burdensome; in fact, based on laboratory data in areas where EPA is the permitting authority, EPA estimates the average
laboratory cost per quarter for a permittee subject to benchmark monitoring to be under $60.

Regarding commenters’ concerns with permittees’ ability to “comply” with the benchmark monitoring concentrations, EPA again clarifies that an exceedance of a benchmark concentration is not in and of itself a violation, and thus there is no requirement to “comply” with the benchmark thresholds. EPA acknowledges that its review of very limited benchmark monitoring data submitted under the 2008 MSGP show that reporting mistakes (e.g., incorrect pollutant analyzed, wrong pollutant parameter reported) are common, and that there are high rates of exceedances for some parameters. However, regular and/or frequent exceedances of the benchmark thresholds support the need for investigation and corrective action, as appropriate, in addition to continued monitorin g of these parameters to evaluate whether the issue has been abated. Ongoing failure rates may be indicative of minimal investment in investigating and bolstering BMPs, permittees not looking in the right places for potential sources, and/or a poorly implemented stormwater monitoring program, to name a few. Ongoing failure rates may, on the other hand, be indicative of a condition for which there is an available exemption from monitoring. EPA anticipates that many of the monitoring issues common under the 2008 MSGP will be addressed under the new permit’s utilization of NeT and NetDMR electronic reporting tools, and that benchmark
monitoring reporting compliance will be improved as a result.

It is also important to also note that some commenters indicated that the benchmark monitoring requirements do not go far enough to protect water quality, and that EPA should include additional numeric effluent limits in the MSGP. Additionally, during EPA’s consultation with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) under Section 7 of the Endangered Species Act (ESA), the Services raised concerns that some of the benchmark metals concentrations may not be low enough to avoid adverse impacts to listed species and critical habitat. While EPA has determined that more stringent requirements are not necessary, EPA maintains that benchmark monitoring is an important aspect of ensuring discharges are controlled as necessary to meet water quality standards, especially given the large sca le of most MSGP

- authorized facilities (approximately 90 percent of facilities covered under the MSGP have one or more acres of industrial activities exposed to
stormwater).2015 EPA MSGP Response to Comments June 4, 2015

4 For these reasons, EPA’s position is that the benchmark monitoring requirements are not unreasonably stringent, are economically practicable, and are sufficiently stringent to help ensure that
discharges authorized under the MSGP are adequately protective of water quality standards.

Regarding the comment that the NRC report denigrated benchmark monitoring as not helpful, EPA disagrees. The NRC did not state that benchmark monitoring is not helpful, but instead recommended changes to benchmark monitoring that could provide more useful information, e.g., tying monitoring requirements to the level of risk posed by the stormwater discharges from each type of industrial facility. EPA requested comment on such an approach, but as explained below, has decided to not incorporate the approach in this permit.

Pollutants Required to be Monitored

EP A received several comments regarding the pollutants required to be monitored under the MSGP. One commenter questioned the basis for requiring some sectors/subsectors to conduct benchmark monitoring for pollutants and not others. The commenter stated that various state

- issued industrial stormwater permits require all sectors of industry to monitor for a handful of the most prevalent pollutants in stormwater runoff (e.g., TSS, oil and grease, pH, zinc, and cadmium), which levels the playing field

and covers all potential sources of industrial stormwater. The commenter also suggested that in -stream water quality monitoring be required under the MSGP in order to assess compliance with water quality standards and to better determine whether stormwater discharges have negative impacts on water quality. Another commenter recommended that general indicator parameters such as total suspended solids (TSS), biological oxygen demand (BOD), and/or chemical oxygen demand (COD) would provide sufficient information to operators for screening and benchmarking purposes, and that EPA should not require monitoring for metals. A commenter wanted EPA to require each sector to monitor for all pollutants
likely to be present and with the reasonable potential to be discharged at high concentrations.

EPA also received sector

- specific benchmark monitoring comments, including comments questioning the basis for the benchmark parameters for Sector S (air transportation) and the basis for monitoring for Sector Q (water transportation) but not Sector R (ship and boat building and repairing yards), and comments questioning why magnesium is a required parameter for certain sectors. A commenter indicated that the requirement for Sector Q to monitor for lead is unnecessary, but suggested that requiring monitoring for copper would be appropriate. Another commenter questioned why Sector I (oil and gas extraction and refining), Sector P (land transportation and warehousing), Sector R, Subsector B2 (paper and allied products), Subsector D2 (asphalt paving and roofing materials), Subsector E3 (glass, clay, cement, concrete, and gypsum products), and Subsector J3 (mineral mining and dressing) do not have benchmark monitoring requirements, and why EPA includes a chromium benchmark for Sector K (hazardous waste treatment), but not Sector F (primary metals). Another commenter suggested that EPA
add benchmark monitoring requirements for Subsector U3 (food and kindred products).

At this time, EPA declines to change the basic framework for benchmark monitoring in the MSGP. EPA’s approach for benchmark monitoring since the MSGP’s first issuance is to require monitoring for pollutants of concern in stormwater, as necessary, on a sector

- specific basis. As explained above, the requirements are based upon discharge data and other information submitted to EPA by covered facilities in past issuances of the MSGP. Additionally, EPA does not have enough data to support the water quality

- based need or technological availability and economic practicability of requiring

moni toring for all pollutants likely to be present for each industrial sector or to make other changes suggested by commenters above. EPA may reexamine the benchmark monitoring framework in a future2015 EPA MSGP Response to Comments June 4, 2015

5 MSGP issuance. Additional discussion of benchmark monitoring is provided in section X.B.1 of the Fact

Sheet.

EPA received many comments recommending the use of the Biotic Ligand Model (BLM) for deriving metals benchmarks, along with considerations of mixing and a metals translator. At this time, EPA declines to adopt the use of the BLM because it not appropriate for all metals required to be measured under the permit and has limitations (see https://fortress.wa.gov/ecy/publications/publications/1203012.pdf ). EPA also received comments recommending that EPA allow the use of chemical translators and Water Effect Ratios in assessing metal concentrations for benchmark monitoring. At this time EPA declines to modify the permit to accommodate these approaches because they would require additional analyses that would increase the burden for permittees (risking the economic achievability of the permit’s requirements) and are not
necessary to ensure that the permit include limits to meet WQS.

Several commenters asked EPA for further clarity on why metals benchmark concentrations are “total” and not “dissolved”. A commenter noted that EPA’s CWA section 304(a) recommended water quality criteria, the basis for the benchmark concentrations, are based upon dissolved metals (except for aluminum), and requested that EPA state this explicitly and indicate that the benchmarks may be conservative in this regard. Another commenter noted that because the MSGP benchm arks are based on total recoverable concentrations, the general public may perceive the stormwater discharge to be more threatening and harmful to receiving water biota than it really is. They also noted that the permit does not appear to consider the conv ersion factors between total and dissolved metals as are referenced in the footnotes to the Criterion Maximum Concentration (CMC) report and the reason and basis for deviating from the conversion factors in the CMC report are not clear. Another commenter requested that dissolved metals and TSS be required in lieu of total recoverable metal analyses. They stated that TSS will provide
a direct indication of the sediment load and an indirect assessment of total metals concentrations, while

the dissolved metals concentrations will provide an indicator of potential toxicity consistent with the findings and conclusions of the CMC Report. In response to these comments, EPA is retaining the requirement for permittees subject to benchmark monitoring requirements for metals to measure for “total” metals. Monitoring for total metals to characterize effluent discharges is consistent with NPDES regulations, which specify that, when a permit contains a limitation for a metal, the limit be expressed in terms of total recoverable metals (40 C.F.R. 122.45(c)). Basically, the partitioning between dissolved and adsorbed forms of metal in a discharge and after the effluent is in the receiving water changes as a result of the chemical differences between the discharge and the rece iving water. Keeping benchmark values in terms of total recoverable metals avoids increasing the monitoring burden (and risking the economic achievability of the permit’s requirements) because otherwise samples would have to be filtered in the field for a dissolved metals analysis and/or the receiving water characteristics will have to be known. Moreover, monitoring for total recoverable metals is adequate to ensure that the permit contains limits to achieve WQS because it is a conservative practice that ta kes into account all possible concentrations of the metal, and not a value that may not be representative of receiving water conditions.

Natural Background Exception to Benchmark Monitoring

EPA received several comments regarding the natural background exc eption to benchmark monitoring. The following is a summary of the comments:

• The definition of natural background pollutants should be expanded to include pollutants which
are deposited through aerial deposition not associated with facility operations.2015 EPA MSGP Response to Comments June 4, 2015

6 • Wi th respect to run

- on of pollutants from legacy properties, it is difficult to ascertain a situation where such a flow should not be considered a natural background contribution to the down

gradient site. The idea that run

- on from neighboring properties or legacy sites would not be considered part of the natural background is not reasonable, and the "downstream" operator/owner should not be burdened by the "upstream generator".

• In Arizona, the background concentration of TSS can easily exceed the 100 mg/L be nchmark.

• Aluminum is a natural background material and failure to take this into account can lead to misleading monitoring results.

• The MSGP should allow facilities to use the natural background exemption when the facility's
contribution, taken alone, would not exceed the benchmark.

EPA is retaining the natural background exception from benchmark monitoring as proposed, which specifie s that a permittee may discontinue benchmark monitoring if a benchmark exceedance is solely attributable to the presence of that pollutant in the natural background. This provision addresses many comments regarding benchmark exceedances due to naturally oc curring pollutants (e.g., concerns about
high levels of TSS, aluminum, and other pollutants that could exist in the natural background).

EPA’s long

- standing position, consistent with the CWA and EPA’s permitting regulations, is that permittees are responsible for the quality of their discharges, regardless of what may be added as a result

of run

- on from other sources or legacy/anthropomorphic sources of pollutants. In the Phase I stormwater rule, EPA clarified that "operators of facilities are generally re sponsible for [their] discharge in its entirety regardless of the initial source of discharge. However, where an upstream source can be identified and permitted, the liability of a downstream facility for other stormwater entering that facility may be

mini mized. Facilities in such circumstances may be required to develop management practices or other

run-on/run- off controls, which segregates or otherwise prevents outside runoff from commingling with its stormwater discharge." 55 Fed. Reg. 48010, November 16 , 1990. In Part 2.1.2 of the MSGP, EPA lists ways of addressing run

- on: “Use grading, berming or curbing to prevent runoff of contaminated flows and

divert run

- on away from these areas.” This approach is consistent with a policy memo issued in 1997 from EPA’s Office of Science and Technology that stated that aquatic life criteria may be set equal to natural background. However, the CWA does not allow EPA or states to set a site

- specific criteria equal to the natural background plus an otherwise protective l evel, as some commenters requested, since doing so could raise the level of the pollutant in the water body that might above the natural background, which would not be protective of aquatic life, at a minimum. EPA also declines to expand the natural backgr ound exception to include anthropomorphic sources of pollutants (e.g., automobiles) because such sources are not part of the natural background. EPA notes that the final permit does provide that monitoring may be suspended if the EPA Regional Office concurs that pollutants occur solely from run

on sources, as one commenter supported. EPA is unable to clarify at this time when such discontinuances are appropriate because such a determination will be based on site

- specific factors and will be determined

on a case -by- case basis. The permit also includes an exception from quarterly benchmark monitoring when an operator determines that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet the technology -based effluent limits or are necessary to meet the water quality

- based effluent limitations in the permit, which
could provide relief for some permittees who may not qualify for the natural background exception.

Miscella neous Comments about Benchmark Monitoring2015 EPA MSGP Response to Comments June 4, 2015

7 A commenter stated that applying benchmarks to discharges to ephemeral waters is particularly problematic, where base flow can be 100 percent stormwater. The commenter also stated that stormwater runoff quality from disturbed and undisturbed areas in the arid west is influenced as much or more by the type and intensity of the storm event, and the time since the last rain event, than by the type of control measures implemented. In response to these comments, EPA notes that the NPDES permit program regulates discharges, directly or indirectly, to waters of the U.S. At this time, ephemeral waters are not categorically included under or excluded from CWA jurisdiction. Whether a particular water is within the jurisdiction of the CWA often needs a case

- specific analysis. Note that on May 27, 2015, EPA the US Army Corps of Engineers signed a final rule that defines the scope of “waters of the United States.” See website. In addition, discharges may be upland of a water of the U.S., traveling through an ephemeral stream or other feature that may not be a water of the U.S., but eventually, flow into a water of the U.S. As such, EPA believes it is important for any discharge that reaches a water of the U.S. to include

controls a nd routine monitoring as a way to ensure that water quality is protected.

In response to comments that the use of acute water quality criteria are not appropriate as
benchmark values, and that the benchmark concentrations should make allowances for receiv ing water characteristics, EPA notes that, in general, freshwater acute criteria, which most of the benchmark concentrations are based on, are less restrictive (i.e., more lax) than chronic water quality criteria. Because of the intermittent nature of stormwater discharges and the elevated flows resulting from precipitation events, EPA views acute criteria as generally more appropriate than chronic criteria in this context. Since benchmarks are usually set equal to acute ambient water quality criteria for the receiving waters, with no allowance for dilution during storm events, EPA agrees with some commenters that they are relatively conservative values (more so because they do not allow for dilution with the receiving water, less so because they are set at acute criteria levels). Moreover, EPA notes that listed species may be located in the waterbody at or near the point of discharge, thus obviating any benefit from dilution of the stormwater in the receiving waterbody. In addition, the Services have observed that in headwater streams, stormwater may make up all or most of the instream flow, and thus there may be little to no instream water available for dilution. See the Biological Opinion from Fish and Wildlife Service at pp.
71, 77, and 88. See also the B iological Opinion from National Marine Fisheries Service at p. 186. EPA notes that an exceedance of a benchmark concentration does not necessarily indicate that a discharge is causing or contributing to a water quality standard exceedance, but does provide an indication that there could be a water quality problem. Therefore, benchmark exceedances require an evaluation of control measure effectiveness by the facility, with follow

- up corrective action where necessary. For a full discussion of EPA’s approach for the derivation of the benchmarks, see the fact sheet for the 1995 MSGP (60 Fed. Reg. 50825, September 29, 1995), the fact sheet for the 2000 MSGP (65 Fed. Reg. 64746), and
the fact sheet for the 2008 MSGP (73 Fed. Reg. 56572).

A commenter recommended th at an exemption from benchmark monitoring under the new MSGP be allowed if documentation can be provided in the SWPPP that monitoring results under the previous permit were below the benchmarks and industrial operations and pollutant sources at the facilit y have not changed. EPA declines to make this change. It is important for all dischargers subject to benchmark monitoring to do the monitoring at least in the first year of permit coverage so that operators are made aware of potential problems expeditiously. For existing dischargers, it is important that benchmark monitoring be restarted during the first year of coverage under the 2015 MSGP in case there have been changes, whether known or planned or not, that affect the quality of the discharges. If there are no changes and the average of the four quarterly samples are below the benchmarks for all required
parameters, then benchmark monitoring may be discontinued for the permit term.2015 EPA MSGP Response to Comments June 4, 2015

8 Another commenter said EPA should specify that it is a violation of the pe rmit for any permittee to conclude its corrective action process with a determination "that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice" without having first e xhausted all of the BMPs that EPA has identified as available for the industrial sector. EPA declines to make any changes in response to this comment. A permittee need not exhaust all BMP options if there are technological availability and/or economic prac ticability limitations. Furthermore, a permittee may only make this determination if their discharges are being controlled as necessary to meet water quality standards. The fact sheet specifies that this determination will be highly

site- specific and must be based on well

- documented good engineering judgment. The accompanying rationale must be included in the SWPPP and the permittee must monitor annually for the pollutant for the remainder of the permit term. Thus, EPA disagrees with the commenter that this determination should constitute a permit violation if there are potential BMPs that the permittee did not implement.

One commenter asked if EPA will issue a letter to the permittee waiving further monitoring requirements once they have fulfilled the requ irements contained in the permit (i.e., after four quarters have been collected and the average of the four does not exceed the benchmark), or if the discharger is to assume they can discontinue monitoring. EPA does not issue a letter to the permittee waiv ing further monitoring requirements. Each permittee is responsible for complying with the terms in the permit, and maintaining documentation of their compliance, which includes quarterly benchmark monitoring results. The permittee must also report changes to their benchmark monitoring frequency (e.g., when benchmark monitoring has been fulfilled for the permit term because the four quarterly average is below the benchmark concentration for all parameters; when the permittee has made a determination that

benchmark exceedances are due to pollutants in the natural background pollutant). Most monitoring changes are to be reported through submittal of a “Change NOI” form in NeT, as specified in Part 7.4 of the 2015 MSGP. Permittees must also keep documentation of their compliance with monitoring requirements in the permit, and EPA may review this documentation during an inspection or request the
documentation from the facility at any time.

One commenter suggests that the permit stipulate that benchmarks for ammonia, copper, lead, selenium, and silver should be updated when the EPA’s recommended criteria are. EPA will not make such a modification during the 2015 MSGP’s permit term, but EPA will considering updating benchmarks in the next MSGP, as appropriate, when new water quality criteria recommendations are
developed for pollutants subject to benchmark monitoring.

One commenter requested that the “related guidance” mentioned in proposed Part 6.2.1.2 be made available with the new permit. EPA clarifies that “related guidance” was not meant to refer to written guidance. Instead, EPA meant that permittees should consult the EPA Region for the Region’s determination of whether there is a basis for discontinuing benchmark monitoring due to run

- on sources. EPA declines to include guidance in the final 2015 MSGP regarding when a permittee can discontinue benchmark monitoring due to run

- on because such a determination must be made a site

- specific basis by the EPA Regional Office. EPA has removed the reference to “related guidance” from Part 6.2.1.2 of the

2015 MSGP.

A commenter indicated that the 2008 MSGP provided a better approach and guidance for managing non

- detects. EPA is unclear about what specific aspects in the 2008 MSGP the commenter believes provided better gui dance for non

- detects, because EPA has not made any significant changes to
the monitoring requirements in the new permit.2015 EPA MSGP Response to Comments June 4, 2015

9 One commenter requested that EPA modify Part 6.2.5 to allow the permittee to have input on any modified monitoring requirements, using language similar to: “The permittee shall have 30 days to contact EPA to comment and/or request changes to the monitoring requirements prior to the monitoring requirements going into effect.” EPA declines to make this change to the permit. Part 6.2.5 of the final permit indicates that any request for additional monitoring would be accompanied by a notice that briefly states the reasons for the monitoring, locations and parameters to be monitored, frequency and period of monitoring, sample types, and reporting requirements. EPA points out that, as a general permit, the MSGP must be reasonably flexible for both permittees and the permitting authority. Thus, when the Agency deems additional monitoring is necessary to ensure that water quality is protected, it is incumbent on permittees to comply. This provision elaborates on the more general standard permit condition in Appendix B, Section B.8 (as specified in 40 CFR 122.41(h)), which provides that the permittee must furnish to EPA, within a reasonable time, any information that EPA may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The alternative, were the facility to object to the additional monitoring re quirements needed to ensure that the facility’s discharge will meet water quality standards, would be to apply for an individual permit.

In response to a comment that the proposed definitions for saline water in the MSGP should be removed and that EPA should instead refer to definitions in state water quality standards in order to prevent conflicts, EPA has revised the definition in the final permit. The MSGP defines saline or salt waters for the purposes of benchmark monitoring as those waters with salinity equal to or in exceedance of 10 parts per thousand 95 percent or more of the time, unless otherwise defined as a coastal or marine water by the applicable state or tribal surface water quality standards. This definition is consistent with 40
CFR 131.36(c )(3).

Impaired Waters Monitoring

EPA received a comment that the MSGP fails to include sufficient monitoring to assure compliance with water quality standards and provides no method for using even very limited data for determining whether a site is in fact causing or contributing to exceedances of WQS, or complying with a WLA. EPA also received several comments that questioned the intentions, stringency and clarity of the impaired waters monitoring requirements in the permit. EPA maintains its position that the impaired waters monitoring requirements in the final 2015 MSGP are sufficiently stringent to ensure authorized discharges are controlled as necessary to meet water quality standards. The final 2015 MSGP requires permittees discharging to impaired waters without a TMDL to monitor for all pollutants for which the waterbody is impaired. Monitoring must continue annually unless pollutants are not detected and are not expected to be present in the discharge. For discharges to impaired waters with a TMDL, as noted in the permit, EPA will examine applicable TMDLs and their wasteload allocations to determine if facility

specific monitoring is appropriate. In addition to the impaired waters and benchmark monitoring requirements and the Annual Report, EPA will re ceive information regarding the receiving waters and any impairments in the permittees’ NOI form through EPA’s Integrated Compliance Information System (ICIS). The NOI requires each operator to inform EPA of the name of the receiving water, whether the

wat erbody is impaired, and if so, what the pollutant causing the impairment is, and whether a TMDL has been approved or established. Making this information available in ICIS will provide the Agency with improved opportunities to determine whether additional monitoring is necessary for the protection of
water quality standards.

The impaired waters monitoring requirements in the 2015 MSGP are substantially similar to requirements contained in the 2008 MSGP, and therefore EPA disagrees with a commenter’s assert ion2015 EPA MSGP Response to Comments June 4, 2015

10 that the permit’s protections for impaired waters has been weakened. EPA also disagrees with a comment that the impaired waters requirements “grant an impermissible degree of discretion to EPA,” citing that EPA has deferred a reasonable potential analysis and development of water quality

- based effluent limitations until after issuance of the permit. Contrary to the commenter’s assertion that the permit does not account for whether a discharge has the reasonable potential to cause or contribute to an exc eedance of applicable water quality standards, EPA presumes that all dischargers covered by the 2015 MSGP have reasonable potential to cause or contribute to an excursion of water quality standards, and thus the permit contains water quality

- based effluent limits that, among other things, require that all dischargers authorized under the permit must control their discharges as necessary to meet applicable water quality standards. Additionally, where further information suggests that, despite having met this WQBEL, the discharge is not controlled as stringently as necessary to meet water quality standards, EPA may identify additional stormwater controls that are necessary for the discharges to meet water quality standards, or require the facility to obtain co verage under an individual permit. The permit also contains several methods in addition to impaired waters monitoring that will assist permittees in determining whether their discharges are sufficiently controlled to meet water quality standards, including requirements for benchmark monitoring (based on national EPA

- recommended water quality criteria), routine inspections,
and quarterly visual assessments.

EPA disagrees with a comment requesting that EPA require monitoring for the pollutants for

which the re is a WLA or that are directly addressed in the TMDL, unless EPA informs otherwise. EPA would require monitoring if a discharge was assigned a WLA, but the Agency will not leave it up to permittees to determine what WLA applies to them or their own monit oring requirements. If a discharge is not subject to the assumptions and requirements of the TMDL, EPA disagrees that the discharge should have to conduct additional monitoring on that basis. For this reason, EPA maintains that it is appropriate

for EPA to determine if additional monitoring is necessary based on a TMDL and its WLA on a case -bycase basis.

EPA received a comment from a state suggesting that EPA require monitoring for all pollutants that are suspected to be the cause of the impaired waters in the Integrated Report, and that if a waterbody is 303(d)

- listed as “combined biota”, that the discharger should be required to monitor for parameters common to stormwater that may be causing the existing impairment. In response to this comment, the

state may include such a requirement in their 401 certification on the permit. However, EPA declines to modify the MSGP to make this change for all permittees because EPA does not have information supporting a need to require monitoring for “all parameters common to stormwater” because the biological community could be impaired for reasons not related to pollutants in stormwater. For this reason, EPA notes in the permit that permittees should consult the appropriate EPA Regional Office for
related guidance.

Reg arding a concern raised in a comment with EPA’s ability to provide notice to facilities that discharge into impaired streams, EPA notes that the reporting system that will be used for the 2015 MSGP will put EPA into a better position to oversee impairment information contained on NOIs that are submitted. The electronic reporting system includes a feature that automatically populates receiving water impairment information based on the outfall location. EPA will have immediate access to this information on submitted NOIs (through ICIS), which will enable EPA to analyze the relevant information to determine whether additional stormwater controls are necessary to be consistent with the TMDL and

WLA.

A commenter suggested that the proposed permit contained a contradiction between proposed Part 6.2.4.1, which says, "If you discharge to an impaired water, you must monitor all pollutants for2015 EPA MSGP Response to Comments June 4, 2015

11 which the waterbody is impaired and for which a standard analytical method exists" and proposed Part
6.2.4.2, which indicates that monitoring only applies to discharges to impaired waters without an applicable EPA

- approved or established TMDL. In Part 6.2.4.1 of the final 2015 MSGP, EPA has clarified that discharges to impaired waters without a TMDL are required to monitor all po llutants for which the waterbody is impaired, while discharges to impaired waters with a TMDL are only required to
monitor if informed by EPA (as described above).

In response to a comment suggesting that it would be better to use turbidity or TSS as a sur rogate to determine if a constituent is present when discharging to impaired waters, EPA disagrees. The presence of TSS or turbidity does not necessarily indicate that the impairment pollutants are present in the discharge. Therefore, the final 2015 MSGP r equires monitoring for discharges into impaired waters without a TMDL for impairment pollutants where a standard analytical test method in 40 CFR Part 136 exists for the pollutant or surrogate parameter. If the pollutant for which the waterbody is impaired is suspended solids, turbidity or sediment/sedimentation, the parameter to be monitored is total suspended solids (TSS). If the pollutant of concern is an indicator or surrogate pollutant, then the pollutant indicator
(e.g., dissolved oxygen) or surrogate must be monitored.

Numeric Effluent Limitations and Monitoring

Several commenters suggested that the MSGP is in violation of the CWA because it does not include numeric effluent limitations and adequate monitoring requirements to ensure those limitations are met. The commenters stated that numeric effluent limits are feasible and are “reasonably necessary to carry out the purposes of the Act.” They requested that EPA “immediately make use of the information it already has at hand to establish numeric effluent limits in this MSGP.” EPA disagrees with the

commenters’ ass ertion that the effluent limits must necessarily be numeric. EPA’s regulations specifically provide that effluent limitations can be expressed as BMPs where “numeric effluent limitations are infeasible” and/or where “[t]he practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.” 40 CFR 122.44(k)(3) and (4). EPA stated in its November 2014 stormwater/TMDL memo that industrial stormwater permits “should contain clear, specific, and m easurable elements associated with BMP implementation (e.g., schedule for BMP installation, frequency of a practice, or level of BMP performance), as appropriate, and should be supported by documentation that implementation of selected BMPs will result in achievement of water quality standards. Permitting authorities should also consider including numeric benchmarks for BMPs and associated monitoring protocols for estimating BMP effectiveness in stormwater permits.” (See November 26, 2014 memo on the subject of “Revisions to the November 22, 2002 Memorandum ‘Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs” from Andrew Sawyers, Director of

the Office of Wastew ater Management and Benita Best -Wong , Director of the Office of Wetlands, Oceans and Watersheds to Water Division Directors in EPA Regions 1

- 10 at http://water.epa.gov/polwaste/npdes/stormwater/upload/EPA_SW_TMDL_Memo.pdf ). The 2015 MSGP is consistent with this memo as it contains, among other things, clear, specific and measurable elements associated with BMP implementation, numeric benchmarks, and narrative WQBELs that ensure discharges will be controlled as necessary to meet applicable water quality standards. However, at this time EPA maintains that it is infeasible to calculate numeric effluent limits for stormwater discharges from facilities subject to this per mit. This is because such site

- specific limitations would require much more data given the variability inherent in stormwater events. In addition, EPA has determined that the

non- numeric limits in this permit are reasonable necessary to carry out the purposes and intent of the

CWA.2015 EPA MSGP Response to Comments June 4, 2015

12 Monitoring Frequency

EPA received several comments recommending that the permit require continuous sampling methods that are flow weighted, rather than grab samples. In the final 2015 MSGP, EPA is continuing to require grab sampl es to be collected during the first 30 minutes of a discharge. The benchmark is not intended to calculate total loads from the facility, and composite or continuous flow

- weighted sampling methods, which are likely to be more representative of conditions at the site, add considerable burden for the permittees, and thus are not technologically available and economically achievable. Moreover, they are not necessary for water quality reasons because grab samples collected during the first 30 minutes of a

disch arge are adequately reflective of the quality of the stormwater discharge such that the operator can determine whether it is necessary to investigate and take corrective action, as necessary, to ensure that
stormwater discharges from the facility achieve W QS.

One commenter requested that EPA remove the monitoring exemption for “data not exceeding benchmarks,” which allow a facility to stop benchmark monitoring if after four quarterly samples the average does not exceed the benchmark. Several commenters st ated that four samples required under benchmark monitoring are not adequate to characterize the variability in stormwater discharges from authorized facilities, and recommended more frequent sampling (e.g., 8 samples per year). EPA arrived at the four sample frequency by weighing numerous factors, including the need for an adequate sampling regime to characterize control measure performance and to avoid imposing undue cost on facilities. While EPA encourages permittees to conduct more frequent monitoring than specified in the MSGP, at this time, EPA has determined that that frequency of monitoring in the 2015 MSGP is adequate and does not need to be increased. Benchmark monitoring is just one tool to use in assessing controls and overall SWPPP performance, a s well as overall permit compliance. EPA notes that it did not make a benchmark
exceedance a permit violation partly because of the small sample size.

EPA disagrees that the monitoring exception for “data not exceeding benchmarks” should be removed. EPA decided to continue to require that monitoring commence in the first year so that operators could immediately get a handle on any potential problems, and eliminate those sooner rather than later. Where the average of four quarterly samples is under the benchmark, EPA’s expectation is that the permittee is implementing their SWPPP adequately, is in compliance with the permit’s effluent limits, and additional benchmark monitoring is unnecessary. However, the permittee is still expected to continue routine facility inspections, quarterly visual monitoring, and other requirements in the MSGP throughout the permit term to ensure that conditions do not change such that they could cause a water quality problem.

S everal commenters questioned why effluent limitation monitoring is only required to be conducted once per year. Only a single monitoring event per year is required to be taken and reported for discharges subject to an ELG, per EPA regulations. However, the permit establishes only the minimum monitoring requi rements, and permittees are encouraged to monitor more frequently based on changes in their control measures, facility operations, or to satisfy any alternate schedules or other conditions established in the facility SWPPP. Facilities subject to numeric EL Gs may have alternate monitoring frequencies or schedules for effluent limit monitoring to minimize the effects of variability on the facility’s compliance performance. Additionally, the permit does require additional follow

- up monitoring when a permittee exceeds a numeric effluent limit. For these reasons, the frequency for numeric ELGs in the final permit is sufficient. In response to a question about the applicability of a monthly average limit with regard to numeric effluent limit monitoring, facilities subject to a 30

- day average or monthly average limit need to compare any monitoring results in a given month, even if it is only from one sample, to both the daily maximum limit and the 30

- day average limit to determine compliance. Where the permittee2015 EPA MSGP Response to Comments June 4, 2015

13 tak es more than one sample in a month to determine compliance, all results should be taken into account in calculating the average value. If one sample is collected in a month, that one sample must be compared

to the 30

- day average effluent limit to determine compliance.

EPA received a question asking if the average of the four quarterly samples required for benchmark monitoring is a geometric mean or arithmetic mean. EPA clarifies that the average is based on arithmetic mean, and not geometric mean. Calculation of arithmetic mean is a simpler function that
allows for easier calculation by permittees.

One commenter stated that if the facility operation changes in a way that increases stormwater discharges, then it should be required to conduct an additional four quarters of benchmark monitoring. EPA notes that Part 2.2.3 has extra requirements for new discharges when a receiving water is listed as “Tier 2”. In addition, Part 7.7 and Appendix B.12.A of the permit require facilities to notify EPA of any “planned p hysical alternations or additions to the facility” that would “significantly change the nature or significantly increase the quantity of pollutants discharged.” On a case -by- case basis, EPA may use these planned changes reports to identify any additional s tormwater controls, including benchmark monitoring, which may be necessary in order to ensure that discharges are controlled as necessary to meet applicable
water quality standards.

When to Sample

Definition of a “Storm Event”

A commenter asked for additional clarification to be provided with respect to how a measurable storm event as described in Parts 6.1.3 and 6.1.4 relates to "storm event" as defined in Appendix A. To clarify, the final 2015 MSGP requires that all required monitoring be performed on a storm event that results in an actual discharge from the site that follows the preceding measureable storm event by at least 72 hours. The definition in Appendix A is consistent with the requirements in Part 6.1.3 and 6.1.4: “a precipitation event that results in a measurable amount of precipitation (i.e., a storm event that results in an actual discharge) and that follows the preceding storm event by at least 72 hours (3

- days). The 72 -hour storm interval does not apply if you document that less than a 72 -h our interval is representative for local

storm events.”

Sampling During Normal Working Hours

Several commenters indicated that sampling should only be required during normal working hours. One commenter stated that the proposed permit did not explain whet her a facility operator is required to undertake visual assessment or sampling outside of normal operating hours or outside of daylight hours and noted that it would be impractical, burdensome, and unreasonable to require monitoring or sampling outside of normal operating hours. Another commenter recommended that the MSGP include the following statement from EPA’s 2012 Construction General Permit (CGP):
"Inspections are only required during the project's normal working hours."

Regarding the timing issues a ssociated with assessments and benchmark monitoring, EPA declines to specify when an event must take place. General permits are flexible so permittees are free to determine when it is best to monitor, as long as the overall schedule is met. Accurate easily accessible weather forecasting is a great aid in preparing for monitoring. Because of the infrequency of visual assessments and benchmark monitoring (quarterly), it is EPA’s expectation that operators will be able to comply with the requirement during nor mal business hours. EPA points out that there are many sources of weather forecast information available to operators so that adequate preparation for monitoring storm2015 EPA MSGP Response to Comments June 4, 2015

14 events, whether during business hours or not, can be done. For the rare case when an ope rator is not able to conduct the assessment in the quarter because of the paucity or poor timing of storm events, the permit provides the option of scheduling the “quarterly” assessment in other seasons when storm events are more
accessible, which addresse s commenter’s concerns about potential safety issues and permit violations.

Sampling within the First 30 Minutes of a Storm

One commenter suggested that EPA either remove or modify the following statement in the permit: "Samples must be collected within the first 30 minutes of a measurable storm event. If it is not possible to collect the sample within the first 30 minutes of a measurable storm event, the sample must be collected as soon as practicable after the first 30 minutes and documentation must be kept with the SWPPP explaining why it was not possible to take samples within the first 30 minutes.” The commenter stated that some outfalls are likely to receive no flow, or very little flow, during the first 30 minutes of a rainfall event and therefore this line should be modified to say “Samples must be collected within the first 30 minutes of discharge resulting from the rainfall event.” EPA agrees. To address the concerns raised by the commenter, EPA has modified Part 6.1.4 to clarify that “samples must be collected within the first 30

minutes of a discharge associated with a measurable storm event” (emphasis added).

Commenters stated that benchmark exceedances occur when natural rainfall during high intensity

rain events creates elevated levels of TSS in the first flush, while other types of rainfall events will not, and that the sampling timing should be adjusted to account for this effect. EPA declines to change this requirement in the permit. It is important that permittees take a sample towards the beginning of the storm event in order to account for first flush effects, since this is when discharges tend to be more concentrated and are times when receiving stream flows are the lowest, and thus potential effects to receiving waters are higher. Accordingly, the permit continues to require a sample to be taken within the first 30 minutes of a discharge associated with a measureable storm event, but does provide that when this is impractical, a grab sample can be taken as soon as practicable (and the permittee must document and keep with the SWPPP an explanation of why a grab sample during the first 30 minutes of a discharge could not be
done).

Adverse Weather Conditions

One commenter expressed concern with the sentence in Part 6.1.5 of the proposed per mit, which stated: “Adverse weather conditions do not exempt permittees from having to file a benchmark monitoring report in accordance with the corresponding reporting period,” and suggested EPA eliminate or clarify the sentence to require monitoring data when they can be safely collected. EPA notes that if there are safety concerns with subsequent storm events within the quarter, Part 6.1.5 specifies that the permittee report to EPA the inability to monitor (not to take the sample within the quarter). Thus the

comment is addressed.

Climates with Irregular Stormwater Runoff

One commenter stated that in some arid areas, infrequent rain events such as summer monsoons occur during non

- business hours and there may be only one or two rain event each wet seaso n that produce enough discharge to sample. The commenter questioned whether this would qualify as an exemption from sampling during a given quarter or required sampling period, and asked whether the permittee would be considered in violation of the permit conditions in such a circumstance. EPA clarifies that the 2015 MSGP provides for the implementation of alternative monitoring schedules for facilities

located in arid and semi

- arid climates, or in areas subject to snow or prolonged freezing. Alternate

moni toring schedules allow permittees the flexibility to allocate their resources effectively to capture the2015 EPA MSGP Response to Comments June 4, 2015

15 required number of stormwater discharge events during the permit term. EPA expects that this flexibility yields more accurate characterization of pollu tant concentrations in facility stormwater discharges during times of the year when precipitation is actually occurring, and during snowmelt discharges in areas subject to extended winter seasons and prolonged freezing. This special exception should reduce the number of times permittees report that there was no discharge due to lack of precipitation during a particular quarter, which in turn will provide EPA with more data that can be used to evaluate a facility discharge’s pollutant levels. In concert with this flexibility is operators’ responsibility to identify those periods during which discharges are most likely to occur and establish a schedule distributing the required
monitoring events during those periods.

Where to Sample

EPA received several comments expressing concern that applying the benchmark limit (based on water quality criteria) at the end -of- pipe is overly conservative because it does not estimate concentrations in receiving waters. The final 2015 MSGP, as with previous versions of the MSGP, requires benchmark monitoring samples to be taken from the site’s discharge point (i.e., a point where runoff leaves or is outside the facility and which may be before an actual outfall). The commenters’ point that benchmarks, both freshwater and saltwater, should be based on the receiving environment / ambient water in which aquatic organisms are living cannot be applied to a general permit as a matter of practicality. There are too many areas that the permit covers and too many site

- specific variables fo r the kind of permit provisions the commenter requests. All site

- specific recommendations by commenters are similarly impractical for general permits. EPA also reminds the commenter that the purpose of benchmark monitoring is to provide an indication of the effectiveness of the stormwater controls and pollution prevention measures implemented under the permit. As such, it is appropriate to require the benchmark sample to be taken at the point of discharge, and not instream after the discharge has mixed with any receiving water. In addition, the Fish and Wildlife Service and the National Marine Fisheries Service expressed concerns that pollutants in stormwater can directly affect threatened and endangered species and critical habitat in the path of a discharge, not just after the discharge reaches a receiving water. The Services have also raised concerns that some of the benchmark metals concentrations may not be sufficiently low to avoid adverse impacts to listed species and critical habitat. EPA again notes that benchmark monitoring is a tool and part of a larger scheme to include water quality

- based effluent limits in the permit that achieve WQS, but that the exceedance of a benchmark concentration is not in and of
itself a permit violation.

EPA received many comments relating to where compliance with WQS should be assessed. As discussed above, mixing zones are not considered for the purposes of benchmark monitoring for the MSGP (only discharge point pollutant concentrations). However, for the purposes of det ermining compliance with water quality standards, i.e., with regard to the requirement for discharges to be controlled as necessary to meet water quality standards, unless a discharge is assigned a mixing zone (sometimes with an associated dilution factor) , compliance is measured at the point of discharge, i.e., at

"end -of- pipe." Many state agencies do not allow mixing zones, or do not allow them for shallow shoreline discharges, such as those from stormwater runoff. Consequently, pollutant concentrations i n discharges are often compared directly with the water quality standards themselves. To consider mixing zones, if the mixing zone was allowed, permittees would have to do in

- stream monitoring, not just at the discharge point the permit requires. In addition, mixing zones would generally not be available where a waterbody is impaired, i.e., the assimilative capacity of the receiving water for the pollutant in question has already

been maxed out and exceeded. EPA may consider several factors, including appl icable mixing zones, as appropriate and applicable under state law when determining whether a discharge is being controlled2015 EPA MSGP Response to Comments June 4, 2015

16 sufficiently to meet WQS. Because of the various factors that may affect such a determination, such a

determination would be made on a case -by- case basis. See also response to comment 0066.001.004.

One commenter stated that where a permittee chooses to manage polluted stormwater by infiltrating it into ground water that is directly hydrologically connected to surface waters, EPA should clarify in the permit, or in its response to comments, that the infiltration system in question is an outfall. As such, discharges to the infiltration system should be subject to monitoring requirements like any other outfall. For the purposes of the MSGP, EPA disagrees that monitoring should be required where infiltration occurs. The MSGP’s benchmark monitoring requirements were not developed with respect to the protection of ground water, because the concentrations are based on surface water quality crit eria and benchmark monitoring was developed with respect to stormwater discharges to surface waters. However, the MSGP does, in fact, include provisions that will ensure the protection of ground water from stormwater that is infiltrated. For example, Part 2.1.1 states that “care must be taken to avoid ground water contamination” when infiltrating runoff onsite. On page 10 of the Fact Sheet, in the context of green infrastructure practices, EPA cautions “if there are doubts regarding the presence of contamin ants in the washwater, even after treatment, operators should not discharge it to be safe.” EPA also suggests that permittees should pay special attention to the discussion at the end of Underground Injection Control (UIC) Regulations when infiltration occ urs on page 32 of the Fact Sheet. The Fact Sheet includes cautions about stormwater infiltration impacting groundwater and the need to potentially obtain a UIC permit for a

Class V infiltration well.

A commenter took issue with proposed MSGP Part 6.1.2, st ating that a settling lagoon with an outfall authorized under an individual NPDES permit that receives both stormwater and other wastewaters would have to be monitored at location upstream of the lagoon. EPA clarifies for the
commenter that Part 6.1.2 only requires samples to be taken prior to mixing “to the extent practicable.”

Request for Comment on a Risk

- Based Monitoring Approach

EPA received several comments in response to a request for comment on a risk

- based monitoring approach recommended by the National Research Council (NRC). The NRC suggested that facilities can be categorized into low, medium, and high risk categories and that monitoring could be tailored to the

level of risk. Facilities in the low

- risk category (i.e., those with limited stormwat er exposure to industrial operations) would have visual inspections with no monitoring requirements, and could use simple guidance manuals to select and size appropriate stormwater controls. Facilities designated as medium -risk would perform site inspectio ns and modeling supplemented by suitable outfall monitoring to ensure compliance. The facility would develop an “event mean concentration” that would be compared to “allowable discharge conditions.” Exceedances would be allowed for a “small fraction” of the monitored events. High

- risk facilities would perform visual inspections and modeling, in conjunction with
monitoring every storm event during the permit term.

Two commenters supported risk

- based benchmark monitoring, but wanted at least quarterly monitoring for medium

- risk and high

- risk facilities throughout the permit term, not just in the first year. Another commenter recommended monitoring six or eight times a year for high risk facilities while another commenter wanted medium and high risk fac ilities to be required to sample at a “far greater frequency than the four samples per year.” Meanwhile, one commenter wanted the actual benchmark concentrations to be the same for all sites regardless of their risk. Finally, one commenter stated that ther e is no longer a need or justification for benchmark monitoring, and does not believe that EPA has proposed
sufficient justification to move toward risk

- based monitoring.2015 EPA MSGP Response to Comments June 4, 2015

17 At this time, EPA has decided not to finalize a risk

- based monitoring approach for th e 2015 MSGP because no practical options for the approach were presented to EPA in the comments received (i.e., there was not enough information and data to support any recommendations to support risk -based monitoring).

Request for Comment on a Waiver fro m Benchmark Monitoring Due to Factors Outside a
Facility’s Control

EPA has decided not to finalize a waiver from benchmark monitoring for facilities covered under the 2008 permit that demonstrate that a past benchmark exceedance was due to factors not under their control, and that there has been no change to these factors since they last conducted benchmark monitoring. EPA received several comments in support of such a waiver, but not enough comments that provided a workable framework for the waiver. Additionally, upon further consideration and as discussed above, EPA has determined that the permit’s existing flexibilities provide appropriate flexibility for these scenarios (i.e., no corrective actions required for benchmark exceedances if no further polluta nt reductions technological available and economically practicable; no corrective actions required for

benchmark exceedances due to run

- on if Region has reviewed and approved).2015 EPA MSGP Response to Comments June 4, 2015

18 

### Comment Response Essay 2 Air Transportation Sector

EPA largely kept the existing Sector S Air Transportation requirements the same as the previous MSGP, but with the addition of the new deicing ELG from 2013 and some added stormwater control options. Sector S commenters were concerned with this language and with language that they b elieved needed clarification. One issue requiring clarity related to the nature of discharges: “EPA must make it clear in the permit that stormwater that is delayed in its discharge is not somehow transformed to non

stormwater.” EPA does not believe there is a reason to presume that a lag time between the precipitation event and the discharge event changes the fundamental nature of the effluent. For example, the definition of “stormwater” in Appendix A (“stormwater runoff, snow melt runoff, and surface runo ff and drainage. See 40 CFR 122.26(b)(13)”) clearly states that snowmelt, which can discharge some period after its original storm event, is “stormwater”. Stormwater controls such as holding ponds or other impoundments have been included in EPA guidances and other documents since 1992 and discharges from such controls are stormwater by definition. Likewise, “non

- stormwater discharges” are defined in Appendix A as those

“that do not originate from storm events”. EPA has nothing on record that supports the pr emise that

stormwater transforms into non

- stormwater over time (provided that the impounded runoff is composed entirely of rainfall or snowmelt, and not commingled with process wastewater or other unauthorized non

stormwater).

Another concern relayed to EPA by air transportation industry groups was that the monitoring and/or other Sector S permit requirements could be interpreted to mean that monitoring and/or compliance with water quality standards had to be at a point within an airport’s boundaries (e.g., an on

site stormwater collection, treatment or conveyance point). EPA points out that stormwater monitoring under the MSGP has always been, and continues to be, required only at outfalls or discharge points. Part 6.1 states: “Applicable monitoring requi rements apply to each outfall authorized by this permit”. The definition in Appendix A of “outfall” and “discharge point” is “for the purposes of this permit, the location where collected and concentrated stormwater flows are discharged from the facility such that the first receiving waterbody into which the discharge flows is a water of the U.S.” In addition, EPA’s Industrial Stormwater Monitoring and Sampling Guide (2009) provides further clarity: “Outfalls are

locations where stormwater exits the facilit y property, including pipes, ditches, swales, and other structures that transport stormwater. If possible, walk outside the boundary of your facility to identify outfalls that may not be apparent from within your site.” EPA believes this unambiguously esta blishes that conducting monitoring at some point within an industrial facility is not a viable interpretation. The same applies for meeting water quality standards. Per 40 CFR 131.3, water quality standards “are provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses.” Water quality standards also include antidegradation requirements. EPA plainly states in Part 2.1 of the permit: “Your di scharge must be controlled as necessary to meet applicable water quality standards of all affected states (i.e., your discharge must not cause or contribute to a violation of applicable water quality standards).” This evinces that it is the discharge, and not the on

- site locations, such as collection, treatment or conveyance points,
that is applicable to water quality standards.

Air transportation representatives indicated to EPA that they did not support or were unclear regarding the permit requirement that all parties meeting the definition of “operator” at airports, including tenants who perform industrial activities, must obtain stormwater permit coverage. The groups believe that airport authorities should be allowed to fulfill all permit obligations by themselves, without tenants filing for permit coverage on their own. The permitting approach where only the airport authority needs permit coverage is not supported by EPA Regions or enforcement personnel. Furthermore, EPA points out that the requirement for all airport operators to submit NOIs has been unchanged since the 19952015 EPA MSGP Response to Comments June 4, 2015

19 MSGP, even if the 1995 and 2000 MSGP versions also used the term “co

- permittee”. EPA discontinued usage of the term “co

- permittee” in the 2008 permit due to confusion about its meaning, but retained the long- standing requirement for NOI submittal by individual operators, as well as the responsibilities associated with being a co

- permittee if an airport authority and some or all of its tenants wish to pursue that route. As such, EPA maintains the separate operator filing an NOI require ment in this permit based on the regulation at 40 CFR 122.28(b)(2)(i): “Dischargers... seeking coverage under a general permit shall submit to the Director a written notice of intent to be covered by the general permit. A discharger... who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge... under the terms of the general permit unless the general permit... contains a provision that a notice of intent is not required or the Director notifies a discharger... that it is covered by a general permit... A complete and timely, notice of intent (NOI), to be covered in accordance with general permit requirements, fulfills the requirements for permit applications for purposes of §§ 122.6, 122.21 and 122.26.” However, EPA notes that the regulations do provide flexibility so that non

- EPA states could, if they wish, adopt a permitting paradigm different from EPA’s; i.e., authorizing such industrial discharges without NOI submittals where they are “co

- permittees” or covered under a broader entity’s NOI and permit (i.e., as in the case of an airport authority and its tenants).

EPA notes that sharing compliance responsibilities among multiple operators in a stormwater permit has a basis in the stormwater regulations; for MS4 p ermitting this is explicitly supported pursuant to 40 CFR 122.35). To provide clarity to air transportation facilities, EPA has introduced a new section to Sector S where the responsibilities and options for such facilities with multiple operators are enum erated (Part 8.S.3 Multiple Operators at Air Transportation Facilities). The new clarifying language is as

follows:

8.S.3 Multiple Operators at Air Transportation Facilities

Air transportation facilities often have more than one operator who could discharge stormwater associated with industrial activity. Operators include the airport authority and airport tenants, including air passenger or cargo companies, fixed based operators, and other parties who routinely perform
industrial activities on airport p roperty.

8.S.3.1 Permit Coverage/Submittal of NOIs

Where an airport transportation facility has multiple industrial operators that discharge stormwater, each individual operator must obtain coverage under an NPDES stormwater permit. To obtain coverage under the MSGP, all such operators must meet the eligibility requirements in Part 1 and
must submit an NOI, per Part 1.2.1.1 (or, if appropriate, a no exposure certification per Part 1.4).

8.S.3.2 MSGP Implementation Responsibilities for Airport Author ity and Tenants

The airport authority, in collaboration with its tenants, may choose to implement certain MSGP requirements on behalf of its tenants in order to increase efficiency and eliminate redundancy or duplication of effort. Options available to the airport authority and its tenants for implementation of MSGP requirements include:

• The airport authority performs certain activities on behalf of itself and its tenants;

• Tenants provide the airport authority with relevant inputs about tenants’ activities , including deicing chemical usage, and the airport authority compiles and reports on tenants’ and its own

activities;2015 EPA MSGP Response to Comments June 4, 2015

20 • Tenants independently perform, document and submit required information on their activities.

8.S.3.3 SWPPP Requirements

A single comp rehensive SWPPP must be developed for all stormwater discharges associated with industrial activity at the airport before submittal of any NOIs. The comprehensive SWPPP should be developed collaboratively by the airport authority and tenants. If any operator develops a SWPPP for discharges from its own areas of the airport, that SWPPP must be coordinated and integrated with the comprehensive SWPPP. All operators and their separate SWPPP contributions and compliance responsibilities must be clearly identified in the comprehensive SWPPP, which all operators must sign and certify per Part 5.2.7. As applicable, the SWPPP must clearly specify the MSGP requirements to be
complied with by:

• The airport authority for itself;

• The airport authority on behalf of its tenants;

• Tenants for themselves.

For each activity that an operator (e.g., the airport authority) conducts on behalf of another operator (e.g., a tenant), the SWPPP must describe a process for reporting results to the latter operator and for ensuring appropriate follow

- up, if necessary, by all affected operators. This is to ensure all actions are taken to correct any potential deficiencies or permit violations. For example, where the airport authority is conducting mo nitoring for itself and its tenants, the SWPPP must identify how the airport authority will share the monitoring results with its tenants, and then follow

- up with its tenants where there are any exceedances of benchmarks, effluent limits, or water quality standards. In turn, the SWPPP must describe how the tenants will also follow

- up to ensure permit compliance.

8.S.3.4 Reporting Requirements

Operators who do not independently perform, document and submit required information on their

activities, instea d relying on another operator (e.g., the airport authority) to do so, may allow that other
operator to fulfill the reporting requirements.

8.S.3.5 Duty to Comply

All individual operators are responsible for implementing their assigned portion of the comprehensive SWPPP, and operators must ensure that their individual activities do not render another operator’s stormwater controls ineffective. In addition, the standard permit conditions found in Appendix B apply to each individual operator, including B.1 Duty to Comply (which states, in part, “You [each individual operator] must comply with all conditions of this permit.”). For multiple operators at an airport this means that each individual operator remains responsible for ensuring all requirements of its own MSGP are met regardless of whether the comprehensive SWPPP allocates the actual implementation of any of those responsibilities to another entity. That is, the failure of the entity allocated responsibility in the SWPPP to implement an MSGP requirement on behalf of other operators does not negate the other
operators’ ultimate liability.

A comment recommended that small amounts of glycol should be okay to discharge in dry weather, stating: “in the small volumes of water associated with snow melt or pavement under drains have no relevance to BMP performance or environmental risk.” EPA disagrees that the permit should2015 EPA MSGP Response to Comments June 4, 2015

21 authorize de minimis amounts of glycol for discharge under the permit. The permit was created for

stormwater and certain allowable n on- stormwater discharges in Part 1.1.4. To have an open -ended allowance for de minimis discharges of glycol or other wastewaters would be impracticable for the MSGP, because the Agency would have to define the de minimis threshold of the wastewater polluta nt that would not cause or contribute to an exceedance of water quality standards. This would only be possible in the context of a separate NPDES permit written for such discharges. While EPA does not expect discharges to be “pure” down to a molecular leve l, EPA reminds permittees that protecting water quality is the primary goal of the permit and the Agency uses discretion when facilities meet that goal.
However, an NPDES wastewater permit is needed for all other dry

- weather discharges.

Commenters expressed several concerns regarding the stormwater control options language in the

sector- specific effluent limits in the proposal. One concern was that, in general, EPA should not enumerate specific control measures for the different types of deicing that occu r at airports (outside the types specified in the deicing ELG) and that control measures should not be required if there is no environmental benefit. EPA believes proffering options for permittees to consider is the kind of appropriate compliance assistance the Agency routinely provides. The Agency has provided the clarification that control measures are required only to the extent necessary to achieve the “minimize the discharge of pollutants” standard. The permit’s stormwater control options were selected based on their being already in use at airports and, therefore, could be considered feasible. Another control measure comment expressed objections to the usage of the term "appropriate" as applied to permittees’ controls selections, suggesting that such usage means that requirements “are based on subjective determinations of ‘appropriateness’ rather than on the standards for BPJ determinations of BAT and BCT.” Similarly, they claim "or their equivalents” appears to establish a minimum standard for BMPs and, thus, an unsupported BAT/BCT effluent limitation.” EPA agrees that the basis for selecting controls should be the standards for BPJ determinations of BAT and BCT for this sector, as described in the deicing ELG, and these standards (e.g., flight safety) are included in the final permit. Therefore, EPA has replaced “appropriate” with “feasible”, and has defined the latter along with “infeasible” in Appendix A consistent with their intended meaning and usage in Agency documents: “feasible: for the purposes of this permit, feasible means technologically possible or economically practicable and achievable in light of best industry
practices. EPA notes that it does not intend for any permit requirement to conflict with state water rights

law” ; and “infeasible : for the purposes of this permit, infeasible means not technologically possible or not economically practicable and achievable in light of best industry practices

. EPA notes that it does not intend for any permit requirement to conflict with state water rights law.” For uniformity, EPA has also replaced “practicable” in the permit with “feasible”. EPA also agrees that requiring the permittee to determine what qualifies as BAT control measures using their own best professional judgment is not appropriate, because such determinations are the responsibility of the permitting authority. Commenters also point out that aviation

- specific factors including safety, effects on aircraft operations (particularly delays) and the interdependencies that connect these and other design factors should be considered when determining what pollution control practices are available at individual airports. EPA agrees and has incorporated the factors commenters’ provided that influence selection of controls. The following language in Part 8.S.3.1.3 reflects these changes: “Implement control measures to minimize the discharge of pollutants in stormwater from aircraft, ground vehicle and equipment storage areas. Control measures may include, where determined to be feasible and that accommodate considerations of safety, space, operational constraints, and flight schedules, the following (list not exclusive): storing aircraft and ground vehicles indoors; using drip pans for the collection of fluid leaks; and perimeter drains, dikes or berms surrounding the storage areas.” Similar language has been applied in other parts of this sector as
well as other parts of the permit where stormwater control options are listed.2015 EPA MSGP Response to Comments June 4, 2015

22 Another comment was submitted regarding the stormwater control options EPA listed in the permit, stating that “placing absorptive materials beneath aircraft during fueling operations” is inappropriate based on safety considerations. EPA agrees and has excised it from the final permit. The commenter also requested that EPA inc orporate language stating that when a permittee has an SPCC plan developed pursuant to 40 C.F.R. Part 112, that constitutes full compliance with Section 8.S.3.1.5 Airport Fuel System and Fueling Areas. EPA agrees and SPCC language has been added per the co mmenter’s suggestion (which also provides a streamlining opportunity): “If you have implemented a SPCC plan developed in accordance with the 2006 amendments to the SPCC rule, you may cite the relevant aspects
from your SPCC plan that comply with the requi rements of this section in your SWPPP.”

Comments on the deicing chemical reduction requirement of Part 8.S.3.1.6 were submitted stating: “the mandate for source reduction associated with deicing operations is inappropriate” and that EPA should “focus on addressing the resulting runoff from deicing operations to reduce pollutant discharges.” Since all tenants at airports must be individually covered and should have read the permit, EPA expects permittees who deice will be able to both control runoff and reduce sources of pollution, wherever possible. The permit already acknowledges that the ability to comply with specific effluent limits is based on what is “achievable”, which is part of the definition of “minimize”. And because “minimize” is already defined as “reduce or eliminate to the extent achievable...” the phrase “and where practicable eliminate” has been excised from Part 8.S.3.1.6. For clarity, EPA has included language that says reductions are to be made consistent with considerations of flight safe ty. The new Part 8.S.3.1.6 Source Reduction language is: “Consistent with safety considerations, minimize the use of urea and glycol

- based deicing chemicals to reduce the aggregate amount of deicing chemicals used that could add pollutants to stormwater di scharges. Chemical options to replace pavement deicers (urea or glycol)

include (list not exclusive): potassium acetate; magnesium acetate; calcium acetate; and anhydrous sodium acetate.” Similarly, commenters stated EPA should not tell permittees how best to conduct aircraft deicing operations (Part 8.S.3.1.6.2 of the proposed MSGP), as “these are based on safety considerations and FAA requirements.” EPA points out that the requirements only include stormwater discharge control options for consideration t hat are feasible and that take into account the factors that influence the selection of such controls. EPA has added other currently employed practices to this section that may be suitable controls for aircraft deicing: “Consider using ice

- detection system s and airport traffic flow strategies and departure slot allocation systems where feasible and that accommodate considerations of safety, space, operational constraints, and flight schedules.” EPA acknowledges that technology selections that relate to aircraft deicing discharges must be based on an evaluation of the factors identified in the Deicing ELG and 40 CFR 125.3(d)(2) or (d)(3), as appropriate, and therefore terms such as “benign” have been excised
from the proposal.

EPA has made changes to the proposed Part 8.S.3.1.7 Management of Runoff regarding factors to be considered in selecting control technologies to be consistent with revisions in other Sector S sections and to be consistent with the ELG record. But a comment stating “EPA has previously ack nowledged that management of runoff from airfield pavement deicing is impractical” is misstated. The ELG preamble said: “Airfield deicing is typically conducted over a large area, including areas with frequent aircraft traffic, such as runways, where activ e collection technologies (i.e., GCVs) are impractical to implement.” (77 FR 29173, col. 3; emphasis added) EPA acknowledges the limited implementation of pavement deicing controls currently being done at airports (but also notes passive controls are possible for paved areas as in the example of Dulles International Airport in Virginia) in the ELG Preamble: “In general, airports discharge airfield pavement deicing chemicals without treatment, due to the difficulty and expense of collecting and treating the large volumes of contaminated stormwater generated on paved airfield surfaces. EPA is not aware of an available means to control these pollutants through collection2015 EPA MSGP Response to Comments June 4, 2015

23 and use of a conventional, end -of- pipe treatment system. It is possible, however, to reduce or eliminate certain pollutants by modifying deicing practices, such as using alternative chemical deicing
products...” (77 FR 29176, col. 1)

The Agency has also added control options for compliance assistance that were listed in the Tech Support Docume nt and ELG preamble. New control technology options in the final permit for aircraft deicing include: “ plug-and- pump (PnP) and separation of contaminated snow. For runways, control technology options added include mechanical systems (snow plows, brushes), conveying contaminated runoff into swales and/or a stormwater impoundment, and pollution prevention practices such as ice detection systems, airfield prewetting, and heated sand. ” A commenter informed EPA that recycling deicing fluids is often not cost

- effective, so EPA has stated in the final permit that recycling be considered
“where feasible.”

EPA has determined that dry

- weather deicing discharges could occur and has kept the

a uthorization prohibition of such dry

- weather discharges language in Part 8.S.3.1.7, and it has added a requirement to implement controls to prevent the unauthorized discharges of pollutants : “implement

control measures to prevent unauthorized discharges of pollutants (dry

- weather discharges of pollutants would need separate coverage under an NPDES wastewater permit), or to minimize the discharge of pollutants from deicing fluids in later stormwater discharges .” Control options for deicing fluid usage during dry- weather, which is also referred to as “clear ice deicing”, were also added to Part 8.S.3.1.7: “Control measures may include, where determined to be feasible and that accommodate considerations of safety, space, operational constraints, and flight schedules, the following (list not exclusive): recovering deicing fluids; preventing the fluids from entering storm sewers or other stormwater discharge conveyances (e.g., covering storm sewer inlets, using booms, installing absorptive interceptors in the

dra ins, etc.); releasing controlled amounts of the fluids to a publicly owned treatment works.”2015 EPA MSGP Response to Comments June 4, 2015

24 

### Comment Response Essay 3 Mining Sectors

Note: The following is a summary of the approach to permitting of earth

- disturbing activities at a mine under the 2015 MSGP. This approach was informed through comments received by the National Mining Association and other mining stakeholders. Further below are responses to specific comment issues

raised.

In the 2015 MSGP, EPA is continuing to allow all stormwater discharges from earth disturbances to be covered under the MSGP, instead of requiring coverage for some of those discharges under a separate permit (i.e., the Construction General Permit or CGP). EPA adopted a single

- permit approach for covering all stormwater dis charges at a mine needing coverage under an NPDES stormwater permit in the 2008 MSGP at the request of the mining industry. Previously, under the 1995 and 2000 MSGPs, EPA required discharges during the exploration and construction phases of a mine to be authorized under the Construction General Permit (CGP) (or an individual construction stormwater permit), and discharges from the active mining phase to be covered under the MSGP (or an individual industrial stormwater
permit).

For the 2015 MSGP, EPA is preserving the 2008 MSGP structure that includes specific effluent limits and requirements for pre

- active mining

- related earth

- disturbing activities, but has revised some of the requirements, including the technology

- based effluent limits (TBELs), inspection, maintenance, corrective actions, and final stabilization provisions from the 2008 MSGP. These revisions were due in part to the promulgation of the recent Construction & Development Effluent Limitations Guidelines and New Source Performance Standards, which applies in the mining context to the construction of staging areas to prepare for erecting structures such as to house project personnel and equipment, mill buildings,

etc. and the construction of access roads. For other earth

- disturbing activities at m ining operations conducted prior to active mining activities, EPA has revised the applicable requirements based on EPA’s
best professional judgement.

One of the main differences between the 2015 and the 2008 MSGP mining sector requirements is that EPA dropped the identification of what activities are subject to the earth disturbance -related requirements based on which “phase” of the mine development is occurring. Previously, the earth

disturbance- related TBELs / requirements were assigned to the exploration and construction phases and the active mining MSGP TBELS / requirements applied to the active and reclamation phases at a mining operation. Associating requirements with mining phases caused too much confusion, especially in light of EPA’s inaccurate past association of “overburden” with the exploration phase. Dispensing with the phases not only provides better clarity, but also acknowledges that not all activities associated with a certain phase may meet the threshold for earth disturbance

- related requir ements (e.g., field surveys and simple
test boreholes performed during exploration).

The 2015 MSGP now identifies which activities are covered by earth disturbance -related requirements by when they occur within the general timeline of a mining operation (i.e., before or during active mining) and also by the purpose of the earth

- disturbing activities undertaken. The former is in the definition of “mining operations” in Part 8.G.3.1(a): “earth

- disturbing activities conducted prior to active mining activities ”. The latter (i.e., the “purpose” portion of the definition) is provided in Part 8.G.3.2,

where such earth

- disturbing activities are further classified in two ways: (a) activities performed for purposes of mine site preparation; and (b) construction of staging areas for structures and access roads. The reason for this dual classification is because earth disturbances described in 8.G.4.2(b) are subject to TBELs from the C&D rule (because they are regulated pursuant to 40 CFR 122.26(b)(14)(x) and (15)(i))

,2015 EPA MSGP Response to Comments June 4, 2015

25 and thus have different TBELs from earth disturbances described in 8.G.4.2(a) (which are regulated
pursuant to 40 CFR 122.26(b)(14)(iii)).

Part 8.G.3.2 also provides examples of the two classes of earth

- disturbing activities conducted prior to active mi ning activities. Examples under 8.G.3.2(a), mine site preparation include “cutting new rights of way (except when related to access road construction); providing access to a mine site for vehicles and equipment (except when related to access construction); other earth disturbances associated with site preparation activities on any areas where active mining activities have not yet commenced (e.g., for heap leach pads, waste rock facilities, tailings impoundments, wastewater treatment plants).”

Activities und er 8.G.3.2(b) are “construction of staging areas to prepare for erecting structures such as to
house project personnel and equipment, mill buildings, etc.), and construction of access roads.”

As mentioned above, mine site preparation activity discharges defined in Part 8.G.3.2(a) are regulated pursuant to 40 CFR 122.26(b)(14)(iii), the category of industrial stormwater that includes mining. These earth

- disturbing activities limits and conditions in the 2015 MSGP are subject to EPA’s best professional judgement (BPJ) TBELs that meet the BAT/BCT/BPT standards because such earth

disturbing activities were not analyzed under and are not subject to the C&D (Construction and Development) Effluent Limitation Guideline (ELG) rulemaking and are not subject to any other mining ELGs. Discharges from the construction of staging areas and access roads defined in Part 8.G.4.2(b) are regulated pursuant to 40 CFR 122.26(b)(14)(x) and (b)(15)(i)) (i.e., the narrative definition for Phase I and Phase II [small] construction) and such discharges are subject to the C&D ELG and therefore have TBELs based on the C&D rule in Parts 8.G.4.1 and 8.G.4.2. The former (construction of structures) is categorized under NAICS 236220 Commercial and Institutional Building Construction; and the latter is

under NAICS 237310 Highway, Street, and Bridge Construction. These NAICS codes were included in
the November 23, 2009, Economic Analysis of the Final Construction and Development ELG , which
provides additional evidence that they are subject to the ELG.

The Part 8.G.4.1 TBELs are applicable to both earth disturbances defined at Part 8.G.3.2(a) (i.e., earth disturbances performed for purposes of mine site preparation) and earth disturbances defined at 8.G.3.2(b) (i.e., construction of staging areas for structures and access roads). For earth disturbances defined at 8.G.3.2(a), the basis for the limits is EPA’s BPJ, and for earth disturbances defined at 8.G.3.2(b), the basis for the limits is the C&D rule. The 8.G.4.1 limits consist of requirem ents for preventing erosion and sediment discharges, and are similar to the BPJ limits in the 2003 and 2008 CGP.

EPA has made revisions to some of the limits in the 2015 MSGP that EPA has determined to be both technologically available and economically ac hievable for earth disturbances defined at Part 8.G.3.2(a) after a review of applicable requirements in non

- NPDES permit permits (in NM, NC, MD and CA). The TBELs at 8.G.4.1 include installation of downgradient erosion and sediment controls; erosion and

se diment control maintenance requirements; perimeter controls; sediment track

- out; soil or sediment stockpiles; sediment basins; dust minimization; and restrictions on the use of treatment chemicals.

The Part 8.G.4.2 TBELs are only applicable to earth distur bances defined at Part 8.G.3.2(b) (i.e., construction of staging areas for structures and access roads). The limits at Part 8.G.4.2 are based on the C&D rule and not applicable to earth disturbances defined at Part 8.G.3.2(a) because, in EPA’s BPJ, these

s pecific limits were not found to be technologically available and economically achievable for such disturbances. The limits at 8.G.4.2 include minimize area of disturbance; erosion and sediment control design requirements; natural buffers; native topsoil preservation; minimize steep slope disturbances;
minimize soil compaction; dewatering practices; pollution prevention; and site stabilization.2015 EPA MSGP Response to Comments June 4, 2015

26 Responses to Specific Mining Comment Issues

The following is a summary of mining

- specific comments and EPA’s responses to these
comments, categorized by topic.

Difference between Mining Earth

- disturbing Activities and Other Types of Construction

• COMMENTS:

o “Clearing, grading, and excavation activities in the context of mining operations are not
like ordinary construction activities.”

o The CGP focuses on sectors under North American Industrial Classification System (NAICS) Code 233

- Building, Developing, and General Contracting and NAICS 234

- Heavy Construction (both are part of the broader Construction Sector, NAICS 23), unlike mining activities, which are listed under NAICS 21

- Mining, Quarrying, and Oil and Gas

Extraction

.

• EPA RESPONSE:

o The limited scope and narrowly defined activities that EPA considers to be pre

- active mining earth

- disturbing do warrant specific requirements similar to those that apply to other construction sites. The nature, intent, and impacts of these activities are similar to
those found at typical construction sites, as are the controls that would be implemented.

o EPA also points out that construction is a narratively

- defined activity (40 CFR
122.26(b)(14)(x) and (b)(15)(i)), and is not SIC

- or N AICS-based.

o EPA has determined that certain types of earth disturbances at a mine are regulated under 40 CFR 122.26(b)(14)(x) or (b)(15)(i) and are subject to TBELs from the Construction and Development Effluent Limitation Guideline. These disturbances co nsist of the construction of staging areas to prepare for erecting structures such as to house project
personnel and equipment, mill buildings, etc., and construction of access roads.

o Other types of earth disturbances conducted prior to active mining acti vities are regulated under 122.26(b)(14)(iii)), and for these disturbances, EPA has developed BPJ -based TBELs to minimize pollutants from these discharges.

Phases of Mining Activities as Defined in the MSGP

• COMMENT: The proposed definitions of the four mi ning "phases" (i.e., exploration, construction, active, and reclamation) are “arbitrary, far too limiting, and do not accurately take into account how an actual mining operation progresses.”

• EPA RESPONSE:

o EPA agrees that associating requirements with mining phases caused too much confusion, especially in light of EPA’s inaccurate association of “overburden” with the exploration phase. Dispensing with the mining “phases” not only provides better clarity, it also acknowledges that not all activities associa ted with a certain phase may fall under the same regulation (i.e., 40 CFR 122.26(b)(14)(iii) or 40 CFR 122.26(b)(14)(x) and
(15)(i)).2015 EPA MSGP Response to Comments June 4, 2015

27 o This 2015 MSGP now identifies which activities are covered by CGP

- type requirements and which are covered by the regular MSGP requirements by what they are and when they occur within the timeline of a mining operation in Parts 8.G.3.1, 8.H.3.1, and 8.J.3.1:

“

Mining operations

– For this permit, mining operations are grouped into two distinct categories, with distinct effluen t limits and requirements applicable to each: a) earth

disturbing activities conducted prior to active mining activities; and b) active mining activities, which includes reclamation. “Mining operations” can occur at both inactive mining facilities and temporarily inactive mining facilities.”

o Specific requirements only apply to part a) of the definition of mining operations, which

is further defined in the 2015 MSGP as: “ Consists of two classes of earth

- disturbing (i.e.,
clearing, grading and excavation) ac tivities:

a. activities performed for purposes of mine site preparation, including: cutting new rights of way (except when related to access road construction); providing access to a mine site for vehicles and equipment (except when related to access road construction); other earth disturbances associated with site preparation activities on any areas where active mining activities have not yet commenced (e.g., for heap leach pads, waste rock facilities, tailings impoundments, wastewater treatment plants); and

b. construction of staging areas to prepare for erecting structures such as to house project personnel and equipment, mill buildings, etc., and construction of access

roads. Earth

- disturbing activities associated with the construction of staging

areas and the construction of access roads conducted prior to active mining are considered to be “construction” and have additional effluent limits in Part 8.G

.4.2. ”

EPA based this definition on both NAICS and industry information regarding what
components need to be in place at a mine site for active mining to take place.

o The second part of the “mining operations” definition (i.e., part b) in the 2015 MSGP incorporates previous MSGP definitions and standard industry descriptions and, for purposes of the MSGP, includes the reclamation phase. Stormwater discharges from these activities are subject to the MSGP requirements applicable to active mining activities, but are not subject to the MSGP requirements applicable to earth -disturbing activities conducted prior to acti ve mining activities. The 2015 MSGP defines active mining activities as follows: “ Activities related to the extraction, removal or recovery, and benefication of non

- metallic minerals from the earth; removal of overburden and waste rock to expose mineable minerals; and site reclamation and closure activities. All such activities occur within the “active mining area.” Reclamation involves activities undertaken, in compliance with applicable mined land reclamation requirements, to return the land to an appropriate post

- mining contour and land use in order to meet applicable federal and state reclamation requirements. In addition, once earth -disturbing activities conducted prior to active mining activities have ceased and all related requirements in Part 8.J.4 have been met, and a well

- delineated “active mining area” has been established, all activities (including any clearing, grading, and excavation) that
occur within the active mining area are “active mining activities.”2015 EPA MSGP Response to Comments June 4, 2015

28 o The 2015 MSGP also defines “active mining area” for clarity and which is based on the regulatory definition at 40 CFR 440.132(a): Active mining area – A place where work or other activity related to the extraction, removal or recovery of metal ore is being conducted, except, with respect to su rface mines, any area of land on or in which grading has been completed to return the earth to desired contour and reclamation work has
begun.

o EPA intends for the earth

- disturbing activities defined by part a) of “mining operation” to

be finite and short t erm with respect to a fully realized mine operation. After these activities are concluded, the earth -disturbance- related requirements would no longer apply. However, if pre

- active mining earth disturbances do not result in an active mine being established, the 2015 MSGP requires permittees to stabilize the site before permit
termination (see Parts 8.G.4.1.9 and 8.G.4.2.11).

o When an active mine is to occur and a well

- delineated active mine area is established, disturbed areas within the active mine area do not need to be stabilized, because the regular MSGP requirements apply to those areas and discharges up to the point of mine
closure (see Parts 8.G.4.1.9 and 8.G.4.2.11).

o An expansion of the mine into undeveloped areas does trigger the pre

- active mining

re quirements, as stated in Part 8.G.3.4: “ Note: Earth- disturbing activities described in the definition in Part 8.G.3.2 that occur on areas outside the active mining area (e.g., for expansion of the mine into undeveloped territory) are considered “earth -disturbing conducted prior to active mining activities”, and must comply with the requirements in

Part 8.G.4.”

Comments on Effluent Limits Applicable to All Pre

- Active Mining Earth Disturbances

The comments and responses in this section all pertain to limits contained in Parts 8.G.4.1, 8.H.4.1, and 8.J.4.1. As previously noted, the limits in these Parts apply to earth

- disturbing activities conducted prior to active mining activities, as defined in Part 8.G.3.2. For earth disturbances defined at 8.G.3.2(a),

the basis for the limits is EPA’s BPJ, and for earth disturbances defined at 8.G.3.2(b), the basis for the limits is the C&D rule. The 8.G.4.1 limits consist of requirements for preventing erosion and sediment discharges, and are similar to the BPJ limits in the 2003 and 2008 CGP. EPA has made revisions to some of the limits in the 2015 MSGP that EPA has determined to be both technologically available and economically achievable.

• COMMENT: A general comment claimed that certain BPJ and the ELG effluent limi ts are infeasible due to the uniqueness of mining sites.

• EPA RESPONSE: EPA notes that these limits apply to sites before they become active mining sites, i.e., sites that are largely like standard construction projects. Nevertheless, to accommodate any situations where pre

- active mining earth disturbances actually have extenuating conditions that make compliance excessively difficult, EPA has included the conditional “unless infeasible” to the following effluent limits: 8.G.4.1.1 Erosion and Sediment Contr ol Installation Requirements; 8.G.4.1.2 Erosion and sediment Control Maintenance Requirements; 8.G.4.1.5 Soil or Sediment stockpiles; 8.G.4.2.2 Erosion and Sediment Control Design Requirements; 8.G.4.2.3 Natural buffers; 8.G.4.2.5 Sediment basins; 8.G.4.2.6 Native topsoil preservation. In2015 EPA MSGP Response to Comments June 4, 2015

29 addition, a feasibility component was added to 8.G.4.1.3 Perimeter controls. Note, all the mining

sectors contain these revisions.

Effluent Limit 1. Installation of downgradient erosion and sediment controls

This TBEL as revised from the proposal is:

8.G.4.1.1 Erosion and sediment control installation requirements.

• By the time construction activities commence, install and make operational downgradient
sediment controls, unless this timeframe is infeasible. If infeasible you must install and
make such controls operational as soon as practicable or as soon as site conditions permit.

• All other stormwater controls described in the SWPPP must be installed and made operational as soon as conditions on each portion of the site allows.

• COMMENT: Such requirements are unrealistic and infeasible for initial land disturbances associated with mining operations (due to scale of mining projects, access problems, and types of controls required). Include caveat like “if feas ible.”

• EPA RESPONSE: With the limited scope of pre

- active mining earth disturbances, the issues cited in the comment are likely not as significant as stated. In addition, controls (e.g., silt fences) can often be situated very close to any clearing, grading, or excavation at about the same time as the earth disturbance. Nevertheless, EPA has allowed for such potential mining

- unique mitigating circumstances as timing and topography to be specifically used as reasons to not comply with the “by the time const ruction commences” requirement. However, EPA requires some type of control
be established “as soon as site conditions permit.”

Effluent Limit 2. Erosion and sediment control maintenance requirements

This TBEL as revised from the proposal is:

8.G.4.1.2 Erosion and sediment control maintenance requirements. You must:

• Ensure that all erosion and sediment controls remain in effective operating condition.

• Wherever you determine that a stormwater control needs maintenance to continue operating effectively, in itiate efforts to fix the problem immediately after its discovery,
and complete such work by the end of the next work day.

• When a stormwater control must be replaced or significantly repaired, complete the work within 7 days, unless infeasible. If 7 days is infeasible, you must complete the
installation or repair as soon practicable.

• COMMENT: The requirement to complete work by end of next work day is problematic for small companies. Also, it is difficult to coordinate with maintenance personnel. Mine

disturbances are large. “Remote exploration sites where roads are limited and staging areas and camp facilities often do not exist.”

• EPA RESPONSE: Pre

- active earth

- disturbing activities are generally limited in area and duration and are likely to occur while personnel are nearby. Therefore, EPA does not expect remoteness to be an issue. Nevertheless, EPA has granted flexibility in meeting the 7

- day maintenance schedule when purchase of equipment or significant repairs result in delays. Still, EPA generally exp ects2015 EPA MSGP Response to Comments June 4, 2015

30 maintenance activities to be completed within 7 days, The complexity and amount of the resources needed to comply with pre

- active mining earth disturbance requirements are commensurate with the amount of earth disturbance (among other factors), i.e., limited earth disturbances can simplify the quantity and type of controls necessary. EPA does acknowledge that certain terrains can be more challenging to operate in than others. But EPA expects that the personnel needed to maintain controls will be available during the limited duration that pre

- active mining activities occur because disturbing the earth necessitates having personnel nearby and these personnel can comply with the MSGP’s requirements.

Effluent Limit 3. Perimeter controls

This TBEL as revised from the proposal is:

8.G.4.1.3 Perimeter controls

. You must:

• Install sediment controls along those perimeter areas of your disturbed area that will receive stormwater, except where site conditions prevent the use of such controls (in which case, maximize their installation to the extent practicable).

• Remove sediment before it accumulates to one

- half of the above

- ground height of any
perimeter control.

• COMMENT: Requirement is a burden for mining operators (no regard for topography, proximity and location of receiving streams, regional climatology, or scale of land disturbance).

• EPA RESPONSE: This comment is partly based on the misunderstanding that the TBEL applies throughout active mining activities. EPA expects standard and appropriate engineering prac tices will be followed, and that unneeded perimeter controls (e.g., no proximate receiving water) will not be installed. For clarity, EPA added the language that the requirement only applies to perimeter areas “that will receive stormwater.” EPA does

count enance the concern regarding potential limitations due to topography and has revised the final language with the exception for site conditions that prevent the use of perimeter

controls.

Effluent Limit 4. Sediment track -out

This TBEL as revised from the p roposal is:

8.G.4.1.4 Sediment track -out. For construction vehicles and equipment exiting the site directly
onto paved roads, you must:

• Use appropriate stabilization techniques to minimize sediment track

- out from vehicles and equipment prior to exit;

• Use additional controls to remove sediment from vehicle and equipment tires prior to exit, where necessary;

• Remove sediment that is tracked out onto paved roads by end of the work day.2015 EPA MSGP Response to Comments June 4, 2015

31 Note: EPA recognizes that some fine grains may remain visible on the surfac es of off -site streets, other paved areas, and sidewalks even after you have implemented sediment
removal practices. Such “staining” is not a violation of Part 8.G.4.1.4.

• COMMENT: Requirement was designed for typical residential sites. Mining vehicles do not
leave the site.

• EPA RESPONSE: The sediment track

- out requirement for exiting vehicles was clarified to apply only at the point where they enter directly onto paved roads. EPA also reminds commenters that this effluent limit only applies to earth disturbances prior to active mining activities.

Effluent Limit 5

- Soil or sediment stockpiles

This TBEL as revised from the proposal is:

8.G.4.1.5 Soil or sediment stockpiles. You must:

• Minimize erosion of stockpiles from stormwater and wind via temporary cover, if

feasible.

• Prevent up

- slope stormwater flows from causing erosion of stockpiles (e.g., by
diverting flows around the stockpile).

• Minimize sediment from stormwater that runs off of stockpiles, using sediment controls (e.g., a sediment barrier or down slope sediment control).

• COMMENT: Mining soil stockpiles are too large to be covered with temporary barrier.

• EPA RESPONSE: Comment may be based on a misunderstanding that the limit applies to active mining- related piles, not the limited disturbed earth of pre

- active mining. Nevertheless, for cases where piles are very large, EPA includes the “unless infeasible” caveat for stockpile covers.

Effluent Limit 6

- Sediment basins

This TBEL as revised from the proposal is:

8.G.4.1.6 Sediment basins. If you inte nd to install a sediment basin to treat stormwater from
your earth

- disturbing activities, you must:

• Provide storage for either (1) the 2

- year, 24

- hour storm, or (2) 3,600 cubic feet per

acre drained.

• Prevent erosion of (1) basin embankments using stabiliza tion controls (e.g., erosion control blankets), and (2) the inlet and outlet points of the basin using erosion
controls and velocity dissipation devices.

• COMMENT: The permit should clarify that sediment ponds are not mandatory.

• EPA RESPONSE: 2015 MSGP has additional language indicating that such a basin is not
mandatory.

Effluent Limit 7

- Dust minimization2015 EPA MSGP Response to Comments June 4, 2015

32 This TBEL was inadvertently left out of the proposal but is a requirement in the 2012 CGP; thus it was added to the mining sectors for pre

- active mining earth disturbances that involve construction of staging areas (such as to house project personnel and equipment, mill buildings, etc., and/or construction of

access roads:

8.G.4.1.7 Minimize dust. You must minimize the generation of dust through the appropriate
application of water or other dust suppression techniques that minimize pollutants being
discharged into surface waters.

Effluent Limit 8

- Restrictions on the use of treatment chemicals

This TBEL as revised from the proposal is:

8.G.4.1.8 Res trictions on use of treatment chemicals. If you intend to use sediment treatment
chemicals at your site, you are subject to the following minimum requirements:

• Use conventional erosion and sediment controls prior to and after application of chemicals;

• Sele ct chemicals suited to soil type, and expected turbidity, pH, flow rate;

• Minimize the discharge risk from stored chemicals;

• Comply with state/local requirements;

• Use chemicals in accordance with good engineering practices and specifications of chemical sup plier;

• Ensure proper training;

• Provide proper SWPPP documentation.

If you plan to use cationic treatment chemicals (as defined in Appendix A), you are ineligible for coverage under this permit, unless you notify your applicable EPA Regional

Office in advan ce and the EPA Regional Office authorizes coverage under this permit after you have included appropriate controls and implementation procedures designed to ensure that your use of cationic treatment chemicals will not lead to a violation of water
quality s tandards.

• COMMENT: EPA does not provide a basis for this requirement. An example was provided in support of this assertion: an Alaska mine has used cationic flocculants for over twenty years with no toxic effects and that facility has never failed a whole effluent toxicity (WET) test due to
flocculent toxicity.

• EPA RESPONSE: There is an ample record from the 2012 CGP supporting cationic chemical requirements. EPA is applying its BPJ for requiring the same limit to pre

- active mining earth

disturbances. T he 2012 EPA CGP Fact Sheet, Part VI.2.4 Use of Cationic Treatment Chemicals, describes the basis for this restriction. The carefully controlled use of cationic treatment chemicals can provide a useful tool for reducing turbidity. EPA has found multiple cases of operators using these chemicals in a haphazard, uncontrolled way that has resulted in fish kills. The proposed requirement will remain for the operator to prepare a plan for use of these2015 EPA MSGP Response to Comments June 4, 2015

33 chemicals. EPA expects that any mine that uses cationic chemica ls will either already have a plan in place or be able to write up their proposed use quickly. EPA’s experience since 2012 with this provision in the CGP has been that all users have been able to obtain permit coverage and continue their operations without delay. Regarding the Alaska mine example proffered by the commenter: the Agency believes that any facility (EPA Region 10 is unfamiliar with the specific Alaska facility to which the commenter refers) conducting WET testing is likely permitted under

an in dividual permit that required a WET test of the discharge after being treated at a wastewater treatment plant (WWTP). The permit requirements for the Alaska mine most likely are, as is the case for individual permits, more site

- specific than for facilities covered by the MSGP.

Flocculants in a WWTP setting are used in a much more highly controlled way compared with typical stormwater controls. As an example of the looser application of cationic chemicals in stormwater controls, EPA inspectors found floccul ent logs placed in sediment ponds to control turbidity, with only limited success. In another case, flocculants were observed after having been sprayed on exposed slopes/soils. While this application method may be somewhat controlled through the use of a nozzle, one facility was documented where a person used his thumb to control the flocculent spray because the nozzle was broken (also with limited success). Documentation of an operator’s flocculent application process will help ensure that haphazard
and harmful use of these chemicals is avoided and, ultimately, the permit’s WQBELs are met.

Comments on Effluent Limits Applicable to the Construction of Staging Areas for Structures and
Access Roads (i.e., disturbances regulated under 122.26(b)(14)(x) and (b)(1 5)).

The comments and responses in this section all pertain to limits contained in Parts 8.G.4.2, 8.H.4.2, and 8.J.4.2. As previously noted, the limits in these Parts apply to earth disturbances defined at Part 8.G.3.2(b) (i.e., construction of staging areas for structures and access roads). These are based on the C&D rule and are not applicable to earth disturbances defined at Part 8.G.3.2(a) because, in EPA’s BPJ, these specific limits were not found to be technologically available and economically achievable for such disturbances under Part 8.G.3.2(a).

• COMMENT: Mining activities should not be subject to the C&D ELGs because mining activities have long been subject to their own effluent limitations under 40 CFR parts 434, 436, and 440,

and under the M SGP.

• EPA RESPONSE: The Agency disagrees because stormwater permits generally do not address the discharges covered by the mining ELGs (the exception is for mine dewatering discharges composed of only stormwater or ground water seepage from construction sa nd and gravel,
industrial sand, and crushed stone mining facilities [all in Sector J]).

Indeed, as explained above, EPA has determined that earth disturbances associated with the following types of construction occurring at a mine were considered in the C&D rule ELG and
are therefore subject to its effluent limits:

o Construction of staging areas for structures (e.g., structures to house project personnel and equipment, mill buildings, etc.) (categorized under NAICS 236220 Commercial and

Institutional Building Construction); and

o Access road construction (categorized under NAICS 237310 Highway, Street, and Bridge
Construction).2015 EPA MSGP Response to Comments June 4, 2015

34 • COMMENT: “EPA has not considered the costs of mandating mining facilities to comply with requirements from the 2012 CGP that were developed without consideration of the unique nature of mining activities and related stormwater discharges.” “The increased costs on a per

- facility
basis would be enormous in light of, in particular, the new requirements in Sector H”.

• EPA RESPONSE: E PA disagrees with the basic premise that requirements similar to those in the 2012 CGP would be enormously costly for the mining sectors. Such a claim is based on the misunderstanding that such requirements would be applicable ad infinitum during the mine’ s existence. For the few mines that progress to the active stage (according to the International Association for Impact Assessment, “only a very small fraction of mining projects will mature to reach the operation phase”), the activities constituting “construction” and the costs associated with applicable limits would likely account for a very small percentage of the mining operation.

As previously stated, EPA acknowledges the limited scope of the C&D ELG to mining -related construction (which formed the basis of new limits in the 2012 CGP that were also included in the proposed MSGP). As a result, the C&D

- related requirements in the final 2015 MSGP are not applied to earth

- disturbing activities covered by NAICS 238910 at a mine (i.e., mine site preparation) . As previously stated, for earth disturbances defined at 8.G.3.2(a), the basis for the limits is EPA’s BPJ, and for earth disturbances defined at 8.G.3.2(b), the basis for the limits is the C&D rule. The 8.G.4.1 limits consist of requirements for preven ting erosion and sediment discharges, and are similar to the BPJ limits in the 2003 and 2008 CGP. EPA has made revisions to some of the limits in the 2015 MSGP that EPA has determined to be both technologically available and economically achievable for earth disturbances defined at Part 8.G.3.2(a) after a
review of applicable requirements in non

- NPDES mining permits (in NM, NC, MD and CA).

Effluent Limit 1

- Area of Disturbance

This TBEL as revised from the proposal is:

8.G.4.2.1 Area of disturbance. Yo u must minimize the amount of soil exposed during

construction activities.

Effluent Limit 2

- Erosion and Sediment Control Design Requirements

This TBEL as revised from the proposal is:

8.G.4.2.2 Erosion and sediment control design requirements. You must:

• Design, install and maintain effective erosion and sediment controls to minimize the discharge of pollutants from construction activities. Account for the following factors in
designing your erosion and sediment controls:

o The expected amount, frequency, intensity and duration of precipitation;

o The nature of stormwater runoff and run

- on at the site, including factors
such as impervious surfaces, slopes and site drainage features;

o The range of soil particle sizes expected to be present on the site.

• Direct di scharges from your stormwater controls to vegetated areas of your site to increase sediment removal and maximize stormwater infiltration, including any2015 EPA MSGP Response to Comments June 4, 2015

35 natural buffers, unless infeasible. Use velocity dissipation devices if necessary to
prevent erosion whe n directing stormwater to vegetated areas.

• If any stormwater flow becomes or will be channelized at your site, you must design erosion and sediment controls to control both peak flowrates and total stormwater

volume to minimize channel and streambank erosi on and scour in the immediate vicinity of discharge points.

• If you install stormwater conveyance channels, they must be designed to avoid unstabilized areas on the site and to reduce erosion, unless infeasible. In addition, you

must minimize erosion of cha nnels and their embankments, outlets, adjacent streambanks, slopes, and downstream waters during discharge conditions through the use of erosion controls and velocity dissipation devices within and along the length of any constructed stormwater conveyance channel, and at any outlet to provide a non

erosive flow velocity.

Effluent Limit 3

- Natural buffers

This TBEL as revised from the proposal is:

8.G.4.2.3 Natural Buffers. For any stormwater discharges from construction activities within 50
feet of a water of the U.S., you must comply with one of the following compliance alternatives:

• Provide a 50

- foot undisturbed natural buffer between construction activities and the
water of the U.S.; or

• Provide an undisturbed natural buffer that is less than 50 feet supplemented by additional erosion and sediment controls, which in combination, achieve a sediment load reduction that is equivalent to a 50

- foot undisturbed natural buffer; or

• If it is infeasible to provide an undisturbed natural buffer of any size, imple ment

erosion and sediment controls that achieve a sediment load reduction that is equivalent to a 50

- foot undisturbed natural buffer.

There are exceptions when buffer requirements do not apply:

o There is no stormwater discharge from construction disturbances to a water of the

U.S;

o The natural buffer has already been eliminated by preexisting development
disturbances;

o The disturbance is for the construction of a water

- dependent structure or
construction approved under a CWA section 404 permit;

o For linear construction projects, you are not required to comply with the requirements if there are site constraints provided that, to the extent feasible, you limit disturbances within 50 feet of a water of the U.S. and/or you provide supplemental erosion and sediment c ontrols to treat stormwater discharges from
any disturbances within 50 feet of a water of the U.S.

See http://water.epa.gov/polwaste/npdes/stormwater/upload/cgp2012_appendixg.pdf for
guidance on complying with these alternatives.2015 EPA MSGP Response to Comments June 4, 2015

36 • COMMENT: Requirements do not account for regional and topographical variations. Some areas may be topographically limited. The MSGP should allow for flexibility to adopt BMPs on a case by c ase basis. Mining sites require large water management structures and complex plans which provide better protection than mere natural buffers. “The MSGP should allow for flexibility with respect to control measures for construction sites at mining operations. Facilities should have the flexibility to adopt BMPs on a case -by- case basis during construction in lieu of
buffers and without regard to the "equivalency" requirement.”

• EPA RESPONSE: The final 2015 MSGP includes flexibility for linear projects (buffe r and/or controls only need to be provided to the extent feasible) and an exception for CWA section 404

- related disturbances. Also, the equivalency
compliance alternative allows for the “complex plans” referred to by commenter.

Effluent Limit 4

– Soil or sediment stockpiles

This TBEL as revised from the proposal is:

8.G.4.2.4 Soil or sediment stockpiles. In addition to the requirements in Part 8.G.4.1.5, you must also locate any piles outside of any natural buffers established under Part

8.G.4.2.3.

Efflu ent Limit 5

- Sediment basins

This TBEL as revised from the proposal is:

8.G.4.2.5 Sediment basins. In addition to the requirements in Part 8.G.4.1.6, you must locate sediment basins outside of any surface waters and any natural buffers established

under Part 8.G.4.2.3, and you must utilize outlet structures that withdraw water from the
surface, unless infeasible;

Effluent Limit 6

- Native topsoil preservation

This TBEL as revised from the proposal is:

8.G.4.2.6 Native topsoil preservation. You must prese rve native topsoil removed during clearing, grading, or excavation, unless infeasible. Store topsoil in a manner that will maximize its use in reclamation or final vegetative stabilization (e.g., by keeping the topsoil stabilized with seed or similar measu res). This requirement does not apply if the
intended function of the disturbed area dictates that topsoil be disturbed or removed.

Effluent Limit 7

- Steep slopes

This TBEL language as revised from the proposal is:

8.G.4.2.7 Steep slopes. You must minimize the disturbance of steep slopes. The permit
does not prevent or prohibit disturbance on steep slopes.

Depending on site conditions and needs, disturbance on steep slopes may be necessary (e.g., a road cut in mountainous terrain; for grading steep slopes prior to erecting the mine office). Where steep slope disturbances are necessary, you can minimize the disturbances to steep slopes through the implementation of a number of standard erosion and sediment2015 EPA MSGP Response to Comments June 4, 2015

37 control practices, such as by phasi ng disturbances in these areas and using stabilization
practices specifically for steep grades.

Effluent Limit 8

- Soil compaction

8.G.4.2.8 Soil compaction. Where final vegetative stabilization will occur or where
infiltration practices will be installed, you must either restrict vehicle/ equipment use in these areas to avoid soil compaction or use soil conditioning techniques to support vegetative growth. Mi nimizing soil compaction is not required where compacted soil is
integral to the functionality of the site.

• COMMENT: This limit should take into account operational norms at mining operation.

• EPA RESPONSE: The permit language was clarified so that EPA’s intent is clear, which is that the requirement only applies where vegetative stabilization or infiltration practices will be implemented. Also, the following language from C&D rule was incorporated: “Minimizing soil compaction is not required where

compac ted soil is integral to the functionality of the site.”

Effluent Limit 9

- Dewatering Practices

This TBEL as revised from the proposal is:

8.G.4.2.9 D ewatering Practices. You are prohibited from discharging ground water or

accumulated stormwater that is r emoved from excavations, trenches, foundations, vaults or other similar points of accumulation, unless such waters are first effectively managed by appropriate controls (e.g., sediment basins or sediment traps, sediment socks, dewatering tanks, tube settlers, weir tanks, or filtration systems). Uncontaminated, non

turbid dewatering water can be discharged without being routed to a control.

You must also meet the following requirements for dewatering activities:

• Discharge requirements:

o No discharging visible floating solids or foam;

o Remove oil, grease and other pollutants from dewatering water via an oil

water separator or suitable filtration device (such as a cartridge filter);

o Utilize vegetated upland areas of the site, to the extent feasible, to infiltrat e dewatering water before discharge. In no case shall waters of the U.S. be considered part of the treatment area;

o Implement velocity dissipation devices at all points where dewatering water is discharged;

o Haul backwash water away for disposal or return it to the beginning of the
treatment process; and

o Clean or replace the filter media used in dewatering devices when the
pressure differential equals or exceeds the manufacturer’s specifications.2015 EPA MSGP Response to Comments June 4, 2015

38 • Treatment chemical restrictions: If you use polymers, flocculants or other chemicals to treat dewatering water, you must comply with the requirements in Parts 8.G.4.1.8.

Effluent Limit 10

- Pollution prevention requirements

This TBEL as revised from the proposal is:

8.G.4.2.10 Pollution prevention requirements.

• Prohibited discharges (this non

- exhaustive list of prohibited non -stormwater discharges is included here as a reminder that only the only allowable non

stormwater discharges are those enumerated in Part 1.1.3):

o Wastewater from washout of concrete;

o Wastewat er from washout and cleanout of stucco, paint, form release oils,
curing compounds, and other construction materials;

o Fuels, oils, or other pollutants used for operation and maintenance of vehicles
or equipment;

o Soaps, solvents, or detergents used in vehic le or equipment washing;

o Toxic or hazardous substances from a spill or other release.

• Design and location requirements: Minimize the discharge of pollutants from pollutant sources by:

o Minimizing exposure;

o Using secondary containment, spill kits, or other e quivalent measures;

o Locating pollution sources away from surface waters, storm sewer inlets, and drainageways;

o Cleaning up spills immediately (do not clean by hosing area down).

• Pollution prevention requirements for wash waters: Minimize the discharge of

p ollutants from equipment and vehicle washing, wheel wash water, and other wash

waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge;

• Pollution prevention requirements for the storage, handling, and disposal of construction products, materials, and wastes: Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sani tary waste, and other materials present on the site to stormwater. Minimization of exposure is not required in cases where the exposure to stormwater will not result in a discharge of pollutants, or where exposure of a specific material or product poses little risk of stormwater contamination (such as final products and materials intended for outdoor use).

Effluent Limit 11

– Site stabilization requirements

This TBEL as revised from the proposal is:2015 EPA MSGP Response to Comments June 4, 2015

39 8.G.4.2.11 Site Stabilization requirements for the const ruction of staging areas for
structures and access roads as defined in 8.G.3.2(b) (i.e., not applicable to earth

disturbing activities performed for purposes of mine site preparation as defined in 8.G.3.2(a)). You must comply with the following stabilizati on requirements, except where the intended function of the site accounts for such disturbed earth (e.g., the area of construction will become actively mined, or the controls implemented at the active
mining area effectively control the disturbance):

• By no later than the end of the next work day after construction work in an area has stopped permanently or temporarily (“temporarily” means the land will be idle for a period of 14 days or more but earth

- disturbing activities will resume in
the future), immedia tely initiate stabilization measures;

• If using vegetative measures, by no later than 14 days after initiating

stabilization:

o Seed or plant the area, and provide temporary cover to protect the planted

area;

o Once established, vegetation must be uniform, perennial (if final stabilization), and cover at least 70% of stabilized area based on density of
native vegetation.

• If using non

- vegetative stabilization, by no later than 14 days after initiating

stabilization:

o Install or apply all non

- vegetative measure s;

o Cover all areas of exposed soil.

Note: For the purposes of this permit, EPA will consider any of the following types of activities to constitute the initiation of stabilization: 1. Prepping the soil for vegetative or non

- vegetative stabilization; 2. Applying mulch or other non -vegetative product to the exposed area; 3. Seeding or planting the exposed area; 4. Starting any

of the activities in # 1

– 3 on a portion of the area to be stabilized, but not on the entire area; and 5. Finalizing arrangements to have stabilization product fully
installed in compliance with the applicable deadline for completing stabilization.

Exceptions:

• Arid, semi

- arid (if construction occurs during seasonally dry period), or drought

stricken areas:

o Within 14 days of stopping construction work in an area, install any

necessary non

- vegetative stabilization measures;

o Initiate vegetative stabilization as soon as conditions on the site allow;

o Document the schedule that will be followed for initiating and completing
vegetative stabi lization;

o Plant the area so that within 3 years the 70% cover requirement is met.2015 EPA MSGP Response to Comments June 4, 2015

40 • Sites affected by severe storm events or other unforeseen circumstances:

o Initiate vegetative stabilization as soon conditions on the site allow;

o Document the schedule that will be followed for initiating and completing vegetative stabilization;

o Plant the area so that so that within 3 years the 70% cover requirement is

met.

• COMMENT: The stabilization requirements are not workable for mining industry (should link to existing f ederal and state reclamation laws). EPA should provide an exception to temporary site stabilization requirements where construction activity on a portion of the mine site has temporarily ceased, but where earth

- disturbing activities will be resumed, e.g., where construction
will resume within 21 days.

• EPA RESPONSE: The permit already allows temporary stabilization to be done. EPA also clarified other stabilization exceptions in the MSGP (e.g., site stabilization is not required for

areas where active minin g activities will occur). See also stabilization requirements applicable to
mine site preparation disturbances at 8.G.4.1.9 (which are unchanged from the 2008 MSGP).

• COMMENT: Commenters request removal of strict re

- vegetation requirements.

• EPA RESPONSE: EPA points out that the permit already allows non

- vegetative stabilization.

• COMMENT: “[I]t is unrealistic to expect operators to cover all areas of exposed soil within 14 days after temporarily or permanently ending construction work in an area.” It is especially
“unfeasible when the areas will soon be mined through.”

• EPA RESPONSE: The scope of the construction

- related requirements limits the area of land that fall under these requirements. Therefore, like any other type of construction pr oject, it is quite appropriate and feasible that disturbed land that has the potential to discharge sediment during

pre- active mining earth

- disturbing should be stabilized when no work will occur on that land for 14 days or more. EPA notes the majority of such earth

- disturbing does not result in a mine being established, so the necessity of stabilizing is obvious (i.e., it probably won’t become an active mine, regardless of the 14

- day time frame). If areas will soon be mined through then the area being mine d can be covered by the regular MSGP and not need stabilization at all, as the permit
allows. EPA also notes that this limit is required by the C&D rule ELG.

Miscellaneous Comments on Pre

- Active Mining Requirements

• COMMENT: EPA must “fully consider that t he coal sector is extensively regulated by the provisions of the Surface Mining Control and Reclamation Act (SMCRA)” because “depending on the project and location, EPA's blanket incorporation of Construction General Permit (CGP) controls to Sector H (Coal Mines and Coal Mining

- Related Facilities) could be a challenging problem.”

• EPA RESPONSE: EPA does countenance in the 2015 MSGP that that there may be instances where compliance with other legal requirements may satisfy MSGP requirements. To address this comment, EPA has added the following note to the sector

- specific sections of Parts 8.G, 8.H, and

8.J: “ Note: Where compliance with a requirement in a separate exploration permit, mining2015 EPA MSGP Response to Comments June 4, 2015

41 permit, reclamation plan, Surface Mining Control and Reclamation Act (SMCRA) requirements, etc. will result in you fully meeting any requirement in this Subpart, you are considered to have complied with the relevant requirement in this Subpart. You must include documentation in your SWPPP describing your rationale for conc luding that any particular action on your part is
sufficient to comply with the corresponding requirement in this Subpart.”

• COMMENT: Remoteness of mines make compliance difficult (“impracticable” and “onerour” [sic]). “[R]emote exploration sites where roa ds are limited and staging areas and camp facilities
often do not exist” make compliance an issue.

• EPA RESPONSE: EPA notes that pre

- active mining disturbances are an active, limited duration process that occurs while personnel are present; therefore, remoteness of a temporary
construction site is largely not an issue.

• COMMENT: Commenters disliked the proposed requirement that operators “consult EPA's CGP to ensure full compliance is achieved." “[C]onsult[ing] unspecified portions of another permit to

det ermine the precise contours of their obligations under the MSGP is improperly vague and contrary to EPA regulation. See, e.g., 40 C.F.R. § 122.43(c) (stating that "all permit conditions shall be incorporated either expressly or by reference" and that "if incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit"). Any requirements that apply to Sectors G, H, and J must be set forth clearly in the MSGP itself, as to do otherwise leaves a permitte d facility with ambiguous obligations.”

• EPA RESPONSE: The permit actually stated operators “should” refer to the CGP as opposed to “requiring” as the commenter misstated. This suggestion was made to inform where to go for additional information or clarity, were an operator to need it. Nonetheless, EPA expects that compliance with the construction requirements as stated in the MSGP is straightforward and clear enough that the Agency has not mandated that permittees refer to the CGP. Therefore, most

mentions of the CGP have been excised from the final permit (EPA does refer permittees to CGP Appendix G for additional guidance on complying with the buffer requirements in the MSGP). The summarized CGP requirements should be sufficient for most situations, and o perators may choose to refer to the CGP and/or the CGP Fact Sheet for additional guidance as appropriate.

• COMMENT: EPA should relax the requirements in Parts 8.G.4.4.2, 8.H.4.4.2, and 8.J.4.4.2,

which mandate that construction

- related inspections are to be done once per month for frozen conditions. Commenters claimed this was “too frequent for remote areas that can only be
accessed by snowmobile and where temperatures are typically

- 40° F.”

• EPA RESPONSE: While the once per month inspection requirement is already relaxed for frozen conditions, and EPA allows permittees to take safety into account when performing such tasks, the Agency has changed the requirement to address the extreme conditions the commenter
provided:

o “Frozen conditions: You may temporarily suspend or reduce inspections to once per month until thawing conditions occur if frozen conditions are continuous and disturbed areas have been stabilized. For extreme conditions in remote areas, e.g., where transit to the site is perilous/restricted or temperatures are routinely below zero, you may suspend inspections until such time the conditions are conducive to safe access, and monthly
inspections can resume.”2015 EPA MSGP Response to Comments June 4, 2015

42 • COMMENT: Clarify what constitutes a “storm event of 0.25 inches or greater” in Parts

8. G.4.4.1, 8.H.4.4.1, and 8.J.4.4.1.

• EPA RESPONSE: The CGP explains “storm event of 0.25 inches or greater” and this language is incorporated into the 2015 MSGP:

o “To determine if a storm event of 0.25 inches or greater has occurred on your site, you must either keep a properly maintained rain gauge on your site, or obtain the storm event information from a weather station that is representative of your location. For any day of rainfall during normal business hours that measures 0.25 inches or greater, you m ust record the total rainfall measured for that day in accordance with Part 4.1.7.1d.

Note: You are required to specify in your SWPPP which schedule you will be following.

Note: “Within 24 hours of the occurrence of a storm event” means that you are requi red to conduct an inspection within 24 hours once a storm event has produced 0.25 inches, even if the storm event is still continuing. Thus, if you have elected to inspect bi

- weekly in accordance with Part 4.1.2.2 and there is a storm event at your site that continues for multiple days, and each day of the storm produces 0.25 inches or more of rain, you are required to conduct an inspection within 24 hours of the first day of the storm and within
24 hours after the end of the storm.”

• COMMENT: EPA should “clarify whether snow melt constitutes a storm event.” Sampling snow melt is a problem.

• EPA RESPONSE: Snow melt has been associated with a storm event since the CWA amendments of 1987. The definition of stormwater in Appendix A of the MSGP plainly states this. The point of inspections following a storm event is to ensure the controls implemented for stormwater runoff, which has the potential to be erosive and/or a vehicle for transporting other pollutants, are functioning properly. A commonsense reading of the inspection requirement would preclude simple snowfall, in the absence of melting, as having the capacity to cause runoff, and thus being a trigger for inspections or monitoring. EPA also points out that pre

- active mining requirements, including those for inspections, are intended to be ephemeral and personnel are most likely on or near the site when construction activities are being conducted. Thus,

construction- related requirements are likely not as burdensome as the commenters claim.

• COMMENT: The r equirement to look at the quality of discharges, if they occur while an inspection is being done per Parts 8.G.4.4.4, 8.H.4.4.4, and 8.J.4.4.4, needs clarification.

• EPA RESPONSE: The intent is that during the evaluation of discharges, permittees are to use the criteria in the visual assessment requirements of Part 3.2.

• COMMENT: Regarding Parts 8.G.4.1.2, 8.H.4.1.2, and 8.J.4.1.2, which require repair or replacement of stormwater controls in a specified timeframe: “The requirement to complete a repair by the end of next work day is problematic for small companies that may not have a sufficient labor force to meet this requirement with respect to large areas requiring maintenance.” “[I]t often will be very difficult to coordinate with maintenance personnel to access remote power line sites or exploration drill hole sites/roads to meet this requirement as proposed, which does

not take into account the need to make access to these remote areas safe after a runoff event.”2015 EPA MSGP Response to Comments June 4, 2015

43 • EPA RESPONSE: EPA disagrees. “Large areas” should not need such repairs unless something catastrophic happens and which routine inspections and maintenance should otherwise prevent. Furthermore, for such instances where more significant repairs/replacement are needed, EPA already provides r elief in the part of permit the commenter cited: “ When a stormwater control must be replaced or significantly repaired, complete the work within 7 days, unless infeasible. If 7 days is infeasible, you must complete the installation or repair as soon as pr acticable.”

Comments on Good Housekeeping and Other Effluent Limits

• COMMENT: Some stormwater controls for good housekeeping enumerated in Part 8.H.5.1 are not always doable at some coal mines where safety considerations are present.

• EPA RESPONSE: EPA concurs with that observation and has restated the requirement as follows: “As part of your good housekeeping program, i mplement control measures to minimize the discharge of pollutants in stormwater. Control measures may include, where determined to be fe asible and that accommodate considerations of safety, the following (list not exclusive): sweepers and covered storage, watering haul roads to minimize dust generation, and
conserving vegetation to minimize erosion.”

• COMMENT: Regarding the general "Good Housekeeping" effluent limit (Part 2.1.2.2) that requires facilities to sweep or vacuum at regular intervals: "Some coal mines have conveyor belts that span creeks and those creeks could be construed as being subject to this requirement. Vacuuming or swee ping coal dust, however, is prohibited at some mines, as it could create static electricity and possibly result in an explosion.” EPA should revise the first bullet to include the phrase "or washed down if the washdown water is collected and properly treated prior to
discharge."

• EPA RESPONSE: EPA finds the commenter’s conveyor belt example lacks merit. First, common sense says that creeks cannot be “swept.” Second, any deposit of coal dust into a creek outside of a precipitation event is not authorized by the MSGP. A conveyor belt as described would either need to have a control implemented to prevent direct deposit of coal dust to the receiving water (unless the operator wishes to obtain a separate NPDES wastewater permit for such discharges), or a control implemented for stormwater runoff containing coal dust. To the extent that a control(s) is in place to prevent direct discharge of coal dust and peripheral deposits of coal dust are still generated, the suggestion to provide an alternative to sweeping/va cuuming is merited. EPA has adopted the proffered language with edits as follows: “Sweep or vacuum at regular intervals; or alternatively, wash down the area and collect and/or treat and properly
dispose of the washdown water;”

EPA notes that Part 1.1.3 A llowable Non

- Stormwater Discharges states that contaminated /
untreated wash water is not authorized by the MSGP.

• COMMENT: Regarding sweeping, another commenter pointed out that the dirt/rock areas of a mine are not conducive to sweeping.

• EPA RESPONSE: The Agency notes that on virtually any industrial site, not just mines, there could be areas where sweeping / vacuuming are inappropriate, e.g., certain areas at automobile salvage yards. The limit is sufficiently clear and compliance should be straightfo rward and
relatively simple to comply with when viewed with common sense on the reader’s part.2015 EPA MSGP Response to Comments June 4, 2015

44 • COMMENT: Some mines already are subject to strict dust control requirements under state or county air quality permits. Therefore, EPA should make it clear tha t compliance with air permit requirements for dust control at mines constitutes compliance with the dust control effluent limit

in Part 2.1.2.10.

• EPA RESPONSE: EPA agrees and has added the following statement to the Stormwater Controls sections (Parts 8. G.5.2, 8.H.5.2, 8.J.5.2) of the mining sectors: “For mines subject to dust control requirements under state or county air quality permits, compliance with such air permit dust requirements shall constitute compliance with the dust control effluent limit in Part

2.1.2.10.”

For documenting the dust requirements compliance at mines, EPA has added language to the Documentation of Control Measures sections (Parts 8.G.6.4, 8.H.6.4, 8.J.6.4): “If you are in compliance with dust control requirements under state or county air quality permits, you must state (or summarize, as necessary) what the state or county air quality permit dust control requirements are and how you’ve achieved compliance with them.” The comment correctly pointed out that both Part 2.1.2.2 and P art 2.1.2.10 mandate dust controls, which is redundant.
Therefore, EPA has removed the duplicative language from Part 2.1.2.2.

Mining- Specific Corrective Action Comments

• COMMENT: Mine operators object to the new corrective action provisions in Part 4.2 as applied to their operations, particularly the “immediate" timeframe for correcting a problem on the same or next work day, depending on when the problem was detected. “EPA clearly did not envision a site of the magnitude of a major Western mining operation, covering 20,000 or more acres with hundreds of storm water best management controls and dozens of containment ponds and other storm water management structures.” “[I]t may be physically impossible after a "monsoon" event, even with crews working "around the clock", to comply with the deadlines outlined in the proposed MSGP and repair the hundred or so storm water [sic] controls that could be impacted.”

• EPA RESPONSE: EPA generally disagrees that the requirement should be changed for mines and specifically for large mines. Such hypothetical worst

- case scenarios, as cited by the commenter, are not a justification for weakening necessary, more enforceable permit conditions (the Fact Sheet contains the rationale for the changes to the corrective action provis ions). A failure of a “hundred or so” management structures all at once is more indicative of operator failure to have done adequate design, maintenance, or inspections of the structures. EPA points out the requirements are more reasonable than the commenters acknowledge. The one or two day deadline begins only once a condition requiring corrective action “ is found ”. After detection, the steps to be taken to ameliorate the conditions are expected to be “reasonable” “to minimize or prevent the discharge of pollutants until a permanent solution is installed and made operational.” Furthermore, the more permanent fix is allowed to take 14 days, “ unless infeasible” , whereupon up to 45 days may be taken (or more if the EPA Region is notified). EPA stands by these requirements to handle mine site conditions, and rejects the notion that a hypothetical failure of 100 stormwater controls represents a typical scenario that should dictate overall permit

conditions.

• COMMENT: What is “the legal authority or basis for the application of this concept to stormwater permitting?”, because “Federal NPDES regulations do not contain any reference to
"corrective action" as applied to stormwater or other NPDES permits.”2015 EPA MSGP Response to Comments June 4, 2015

45 • EPA RESPONSE: EPA disagrees in general with this comment. The Agency is required to issue permits containing terms and conditions that are based on the best available technology economically achievable and that will control discharges as necessary to meet applicable water quality standards. In general, the effluent limits contained in the MSGP, combined with the other requirements concerning corrective actions, inspections, and monitoring, will control discharges as necessary to meet applicable water quali ty standards. Corrective actions are important in this case because they ensure that the operator’s discharge will come back in line with the permit’s terms and conditions as soon as possible after a problem or issue is detected. To not include such

requ irements in this permit would risk allowing discharges that are not in compliance with either technology- based or water quality

- based requirements or both to continue undetected and
unabated, clearly in violation of the Clean Water Act.

• COMMENT: “The req uirement to conduct corrective action in the event of any "unauthorized release or discharge" (Part 4.1), regardless of impact or location, is overly broad...”, and they
suggest EPA add “waters of the United States” to clarify our intent.

• EPA RESPONSE: EPA does mean that an "unauthorized release or discharge" in Part 4.1 refers only to effluent as being the trigger for corrective action. To provide clarity, EPA has reworded

Part 4.1 to: “An unauthorized discharge/release to a water of the U.S. (e.g., spill, leak, or discharge of non

- stormwater not authorized by this or another NPDES permit) occurs at your
facility.”

• COMMENT: What is a "required control measure" as it relates to triggeri ng a corrective action? What constitutes routine maintenance vs. a triggering event for a corrective action?

• EPA RESPONSE: Controls are referred to as “required” when permittees select the controls they will implement per the requirements in Part 2.1, or for controls identified as necessary for establishing permittees’ eligibility for permit coverage. “Routine” maintenance are those actions taken in compliance with Part 2.1.2.3, or when taken as a result of routine inspections of control
measures per Part 3.1 (“Control measures needing replacement, maintenance or repair”). Corrective actions are taken for the conditions enumerated in Part 4.1 (i.e., triggering events)

• COMMENT: There is confusion regarding corrective actions being triggered by visual

asse ssments and what EPA means by “stormwater pollution.”

• EPA RESPONSE: The requirements of Part 4.1, which tell permittees what to look for in their stormwater discharges, are sufficient to describe “stormwater pollution” for this section of the permit: “... st ormwater pollution (e.g., color, odor, floating solids, settled solids, suspended
solids, foam).”

• COMMENT: The “new corrective action trigger is especially problematic in the arid southwest where stormwater discharges always have visible signs of solids due to the naturally erodible
nature of the soils and the associated topography.”

• EPA RESPONSE: EPA points out that its online Industrial Stormwater Monitoring and Sampling Guide assists permittees with sampling where discharges exit the industrial site: “If you have not already done so, walk the grounds and perimeter of your facility during a storm event to identify where runoff discharges from the site (known as “outfalls”).” This ensures that only the contribution of a facility to stormwater pollution i n a discharge is assessed. The permit also2015 EPA MSGP Response to Comments June 4, 2015

46 allows natural pollutant levels to be factored in when trying to determine whether unnatural
additions of pollutants are occurring.

• COMMENT: Corrective actions taken in response to benchmark exceedances makes th e latter “de facto discharge limitations” because the Fact Sheet contained absolute language that the
conditions causing the corrective action must be “eliminated” and its recurrence “prevented”.

• EPA RESPONSE: While the Fact Sheet does not carry the weight of the permit, i.e., the Fact Sheet does not contain legal requirements, EPA has revised the Fact Sheet (and corresponding permit) language as follows in response to the comment: “If an operator determines during an inspection, monitoring, or other means, or the EPA, or local, state, or tribal entity informs the operator, that any of the below conditions has occurred, the operator is required to review their SWPPP to determine where revisions may need to be made to attempt to eliminate the condition,

pr event its reoccurrence, and ensure that effluent limits are met.”

• COMMENT: Regarding a benchmark exceedance, which triggers the corrective action requirements of Part 4, and for which the proposed permit states the corrective action must “eliminate the condition, prevent its reoccurrence, and ensure that effluent limits are met”. Commenters correctly point out that there are instances where further reductions of benchmarks are not technically feasible, thus the requirement to “eliminate” and “prevent reoc currence” are
inappropriate.

• EPA RESPONSE: EPA has corrected this oversight using the approach from the 2008 MSGP where the two corrective action outcomes are differentiated. So, in place of the proposed “4.1 Conditions Requiring SWPPP Review and Revisio n to Eliminate Problems”, EPA has inserted “4.1 Conditions Requiring Review and Revision to Eliminate Problem” and “4.2 Conditions Requiring Review to Determine if Modifications Are Necessary” . The triggering conditions in the proposed MSGP have been retained with the conditions applying to benchmarks being placed under Part 4.2. Also under the new Part 4.2 is the following explanatory language from the 2008

MSGP: “If any of the following conditions occur, you must review the selection, design,

installati on, and implementation of your control measures to determine if modifications are
necessary to meet the effluent limits in this permit:”

• EPA has made a revision to the requirement to initiate a corrective action as a result of a

benchmark exceedance to mak e it consistent with the natural background level provision for
benchmarks in part 6.2.1.2.

Miscellaneous Comments on Active Mining MSGP Requirements

• COMMENT: Remove the discharge testing provisions in Parts 8.G.5.3, 8.G.6.6, 8.J.5.3, 8.J.6.6. [These re quire operators to “test or evaluate all outfalls for the presence of specific mining -related

non- stormwater discharges such as seeps or adit discharges, or discharges subject to effluent limitations guidelines (e.g., 40 CFR Part 440), such as mine drainag e or process water.”] The requirements are “redundant with Part 5.2.3.4 [which are general requirements to document that operators have evaluated for the presence of non

- stormwater discharges] and are internally
inconsistent and ambiguous.”

• EPA RESPONSE: EPA has retained the requirements as proposed, noting that they are long

standing MSGP requirements first introduced in 1995. Sector

- specific requirements are appropriate in order to spotlight activities and pollutants/pollutant sources particular to thos e2015 EPA MSGP Response to Comments June 4, 2015

47 sectors that could present extra risks to water quality. To illustrate the need for such spotlighting, EPA knows of a number of mines in Region 10 that erroneously claimed their seeps were permitted under the MSGP and consequently did not analyze for the seeps. The Agency required three different mine sites to sample supposedly “permitted” seeps under a Clean Water Act

Section 308 information collection order. The sampling revealed that all three seeps were high in
metals, and enforcement actions were taken in all three cases.

• COMMENT: The proposed MSGP includes the statement that SWPPP requirements should not apply to inactive mining facilities in Sector J facilities (Part 8.J.6): “The requirements in Part 8.J.6 are not applicable to inactive mineral mi ning facilities.” This provision is missing from Sectors G and H. Similar provisions for inactive metal mines were also included in Parts 8.G.5,
8.G.6, and 8.G.7 but not in the other mining sectors.

• EPA RESPONSE: The requested changes regarding SWPPP req uirements have been made in the final permit.

• COMMENT: A commenter questioned whether Part 3.2.3 (Exceptions to Quarterly Visual Assessments for Substantially Identical Outfalls) applies to coal mines.

• EPA RESPONSE: Yes, Part 3.2.3 applies to all sector s.

• COMMENT: "Adverse weather does not exempt you from having to file a benchmark monitoring report in accordance with your sampling schedule." “This will require staff to travel on roads and in dangerous areas when they are not safe to be travelling on si mply to comply with
the benchmark monitoring requirements.”

• EPA RESPONSE: The commenter misunderstands the requirement in Part 6.1.5, which has allowances for dangerous conditions because of inclement weather. The requirement to report on monitoring resul ts, whether actual monitoring was accomplished or not, is necessary to show the
Agency that such requirements are not being ignored.

• COMMENT: Regarding the 90

- day deadline for submitting an NOI to retain uninterrupted coverage: this timeframe “would not allow adequate time to evaluate what changes may be necessary under the new permit, revise the SWPPP, and implement control measures”, due to
many mines not being “accessible year round”.

• EPA RESPONSE: While the permit requirements are in some cases slightly more stringent, the revised permit’s changes would not result in new, costly or complicated controls where there is already a well

- designed and implemented SWPPP. As a result, EPA determined that 90 days is sufficient time to effect any minor change to controls or an existing SWPPP that the new MSGP
may necessitate, regardless of a mine’s sometimes inaccessibility.

• COMMENT: EPA should add the definition for the term "uncontaminated" that appears in Part 8.J.3.10 to Appendix A.

• EPA RESPONSE: EPA agrees a definition for the term needs to be included in the MSGP’s appendix, so the definition from the 2012 CGP for “uncontaminated discharge” has been added to Appendix A:

o Uncontaminated discharge

- a discharge that does not cause or contribute to an

ex ceedance of applicable water quality standards.”2015 EPA MSGP Response to Comments June 4, 2015

48 EPA declines to maintain a separate definition for the term in Sector J, so the proposed definition

in 8.J.3.10 “Uncontaminated

- Free from the presence of pollutants attributable to industrial activity” ha s been excised. EPA has not kept the Sector J definition for general usage because it is incompatible with the definition of “non

- stormwater discharges”.2015 EPA MSGP Response to Comments June 4, 2015

49 

# Individual Comments and
Responses2015 EPA MSGP Response to Comments June 4, 2015

50 

### Issue Category: Section 1.0 - General MSGP Comments

Comment ID 0017.001.001 Issue Category: 1.0

Author Name: Kyle Balkum General MSGP Comments

Organization: Louisiana Department of Wildlife and Fisheries (LDFW)

The professional staff of the Louisiana Depa1tment of Wildlife and Fisheries has reviewed the above referenced notice. Based upon this review, the following has been determined:

LDWF has no objection to the reissuance of a National Pollutant Discharge Elimination System (NPDES) general permit for stmmwater discharges from industrial activities.

The Louisiana Department of Wildlife and Fisheries submits these recommendations to the U.S. Army Corps of Engineers in accordance with provisions of the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.). Please do not hesitate to contact Habitat Section biologist Chris Davis at 225 -765-2642 should you need further assistance.

Response No response necessary.

Comment ID 0020.001.001 Issue Category: 1.0

Author Name: William Stilwell General MSGP Comments

Organization: Massachusetts Department of Environmental Protection (MassDEP)

I have reviewed the EPA's proposed Draft National Pollution Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Industrial Activity also referred to as the Multi -Sector General Permit (MSGP). While I agree in principle with t he goals, benefits, and implementation of the MSGP, I have concerns over conflicts created between the MSGP and State of Massachusetts Department of Environmental Protection (MassDEP) and Local Town Conservation Commission wetlands and stormwater regulatio ns.

EPA has two NPDES general stormwater permits: 1) a general permit for construction sites that disturb one acre or more of land, the Construction General Permit, and 2) a general permit for certain industrial activities, the Multi

- Sector General Permi t. In 1996, MassDEP issued the Stormwater Policy that established the Stormwater Management Standards. Mass DEP has integrated those Stormwater Management Standards into the States Wetlands Protection Act M.G.L. c. 131§40.

For construction activities MassDEP and/or Conservation Commissions apply the Massachusetts Wetlands Protection Act and Stormwater Management Standards to all industrial, commercial, institutional, office, residential and transportation projects, including site preparation, construction and redevelopment in areas subject to protection under the wetlands protection act. In accordance with the MassDEP Wetlands Regulations 310 CMR 10.05(6)(b), Conservation Commissions and MassDEP issue final Orders of Conditions that require that stormwater be managed in accordance with the Stormwater Management Standards.

Response2015 EPA MSGP Response to Comments June 4, 2015

51 MA may include permit conditions as it deems appropriate to ensure state water quality standards and other state water quality requirements are met as part of the CWA Section 401 certification process.

Comment ID 0021.001.001 Issue Category: 1.0

Author Name: Lee Epstein General MSGP Comments

Organization: Chesapeake Bay Foundation

On behalf of the Chesapeake Bay Foundation, Inc. and our more than 200,000 members, please accept the following comments on the above

- titled draft permit.

Stormwater is an, increasingly important source of water pollution across the United States [FN1]. It is a source, of particular note in the 64,000 square mile Chesapeake Bay Watershed, where on average it contributes more than 15 percent of the total nitrogen load, some 17 percent of the total phosphorus load, and almost 23 percent of the total sediment load; these loads have been growing, as opposed to other major water pollution sources such as agriculture or waste water treatment plants [FN2]. In some of the Bay watershed's rivers and streams, pollutant burdens from stormwater are significantly higher. For example, stormwater accounts for almost 20 percent of the nitrogen load, 23 percent of the phosphorus load, and 40 percent of the sediment load from Maryland into the Bay [FN3].

We have a special interest in the structure and content of this Multi

- State General Permit since the District of Columbia, to which this permit will appl y, is within the Chesapeake Bay watershed. Initially, we would note that there are some improvements in the drift permit over the previous, 2008 permit, with strengthened language in many instances (e.g. use of the verb "include" instead of "consider"). Th ere are, however, other sections, which should be reconsidered in light of the information provided below. Our comments are listed seriatum, in permit order.

[FN1] National Research Council, National Academies of Science, Urban Stormwater Management i n the United States (2008), vii.

[FN2] U.S. Environmental Protection Agency, Office of the Inspector General, Development Growth Outpacing Progress in Watershed Efforts to Restore the Chesapeake Bay, Evaluation Report No.2007 -P00031, September 10, 2007, Summary Recommendations; Chesapeake Bay Program, Bay Barometer,

CBP/TRS 293

- 09, EPA -903-R-09- 001 (March 2009), 8; U. S. Environmental Protection Agency (2012): http://www.chesapeakebay.net/indicators/indicator/reducing_nitrogen-pollution; http://www.chesapeakebay.net/indicators/indicator/reducing_phosphorus_pollution; http://www.chesapeakebay.net/indicators/indicator/reducing_sediment_pollution (last viewed 10/29/13).

[FN3] http://www.chesayeakebay.net/track/restoration (last viewed 10/31/13).

Response No response required.

Comment ID 0022.001.001 Issue Category: 1.0

Author Name: Paul Wiegand General MSGP Comments

Organization: National Council for Air and Stream Improvement, Inc. (NCASI)2015 EPA MSGP Response to Comments June 4, 2015

52 The National Council for Air and Stream Improvement, Inc. (NCASI) wishes to submit these comments concerning EPA's draft Multi

- Sector General Permit (MSGP) for Industrial Activity as noticed in the September 27, 2013 addition of the Federal Register. NCASI is a not -for- profit environmental research organization whose members are involved in the production of pulp, paper, and wood panel products. NCASI submits these comments on behalf of its members, which account for more than 90% of the pulp and paper and 75% of the wood panel products produced in the United States. While most NCASI members are not subject to EPA's MSGP but rather stormwater management requirements imposed by state agencies, it is recognized that some states may pattern some of their requirements on the content of

EPA's MSGP.

Response No response required.

Comment ID 0023.001.001 Issue Category: 1.0

Author Name: John Roy General MSGP Comments

Organization: Connecticut Galvanizing

This letter provides comments on the Environmental Protection Agency's (EPA's) 2013 draft multi -sector general permit (2013 MSGP), which was published in the Federal Register on September 27, 2013 (Docket ID No. EPA -HQ-OW-2012- 0803). These comments focus o n two related topics: (1) inclusion of aquatic life criteria for metals that reflect the state -of-the- science with regard to bioavailability and toxicity, and (2) consideration of mixing of stormwater in receiving waters. The two topics are related

because the criteria for metals ultimately needed for protecting designated uses are based on bioavailability to aquatic organisms, which depends on water chemistry conditions in receiving waters (not in discharge outfalls or stormwater ditches or drains).

Response See monitoring response to comment essay.

Comment ID 0031.001.001 Issue Category: 1.0

Author Name: Anthony Grieggs General MSGP Comments

Organization: Los Alamos National Security (LANS)

Relative to the Multi

- Sector General Permit, our facility is large and complex with currently 14 active industrial sites operating under 12 different Storm Water Pollution Prevention Plans (SWPPPs). These

sites fall under seven different industrial sectors including D, F, K, N, O, P and AA and within six different assessment units for impaired waters without an applicable EPA

- approved or established Total Maximum Daily Load (TMDL). The facility currently has a total of 69 outfalls that discharge stormwater from these 14 industrial sites. As such, it is a rather complex entity relative to reporting requirements.

Response No response required since the commenter is simply describing its facility.

Comment ID 0035.001.001 Issue Category: 1.0

Author Name : Wendy Terlizzi General MSGP Comments

Organization: Arizona Department of Transportation (AZDOT)2015 EPA MSGP Response to Comments June 4, 2015

53 ADOT does not have facilities subject to this permit, nor does it anticipate future facilities on Tribal lands that would be subject to these requirements. These comments are made in an effort to adjust for future interpretation of the MSGP by the state re gulatory agency, Arizona Department of Environmental Quality, and subsequent reissuance of the Arizona Pollutant Discharge Elimination System MSGP. The following three comments are provided:

1) ADOT appreciates that the EPA has/will conduct the requir ed National Environmental Policy Act review of permit implementation, rather than defer the requirement to the regulated entity or applicant (FR page 59675.B.1).

Response EPA appreciates the commenter’s support for the programmatic NEPA analysis.

Com ment ID 0040.001.001 Issue Category: 1.0

Author Name: Kevin Walgenbach General MSGP Comments

Organization: National Ready Mixed Concrete Association (NRMCA)

1. NEPA Review for Dischargers Subject to any New NSPS

- At this time NRMCA withholds comments

on this section.

Response No response necessary.

Comment ID 0040.001.014 Issue Category: 1.0

Author Name: Kevin Walgenbach General MSGP Comments

Organization: National Ready Mixed Concrete Association (NRMCA)

Finally, NRMCA supports and is committed to smart practices and common sense methods for keeping our nation's waterways and their tributaries clean and healthy. It is the position of NRMCA that more regulation of our nation's waterways is not necessary to achieve the goals of the Clean Water Act. NRMCA believes that incentivizing and promoting environmentally conscientious practices will go much further to achieving these goals than tougher, more expansive, and more complex enforcement of laws and regulatio ns.

Response No response required. To the extent a response is required, the CWA generally requires point source discharges of pollutants to waters of the United States to be authorized under NPDES permits. Permitting authorities must develop effluent limits (technolog y- based and, as necessary, water quality

- based) for inclusion in permits that are based on certain levels of technology and protective of water quality standards (WQS). For most sectors covered under the MSGP, calculating numeric effluent limits is impract icable, so the Agency uses its best professional judgement to develop narrative technology -based effluent limits (TBELs) and water quality

- based effluent limits (WQBELs). TBELS and WQBELs are revised in new (i.e., re

- issued) permits as necessary to better address technological and water quality concerns and other issues as information becomes available, and also to improve operator compliance, which remains an issue. EPA may use enforcement, per the CWA, especially when non

- compliance is2015 EPA MSGP Response to Comments June 4, 2015

54 egregious and/or results in exceedances of WQS. Some incentives are built into the MSGP, for example, permittees subject to benchmark monitoring may discontinue benchmark monitoring if the average of four quarterly monitoring values for their benchmark parameters does not ex ceed the benchmark.

Comment ID 0041.001.009 Issue Category: 1.0

Author Name: Jason Ulseth & Jessica Sterling General MSGP Comments

Organization: Chattahoochee Riverkeeper

In addition to the comments above on specific parts of proposed 2013 MSGP, we would like to provide the following additional comments based on the Georgia Permit:

One problem with the proposed 2013 MSGP is the cycle of BMP revision and sampling that allo ws facilities to pollute already

- impaired streams almost endlessly. When a permittee repeatedly exceeds benchmark values for a pollutant of concern there is no provision in the proposed 2013 MSGP requiring the permittee to do anything other than implement additional BMPs and continue monitoring, even when the continued monitoring showed that the BMPs were not effective. A provision was included in the 2011 Georgia Permit that addresses that problem by requiring permittees that exceed the benchmark value for two cycles of BMP implementation to request an alternative regulatory scheme to address its failure to comply with the terms of the Permit. These facilities must request approval to: 1) apply for an individual permit; 2) request an alternative general per mit, or 3) remain under the Georgia Permit with the benchmark values for the pollutant of concern as a numeric limit. The addition of this requirement to the Georgia Permit makes it more protective of water quality than 2013 draft MSGP. We suggest that EPA include similar protections in the 2013 MSGP.

We also suggest the inclusion of similar protections for streams that are not impaired waters in the 2013

MSGP. For non

- impaired streams and streams that are not monitored for listing assessments, facilities that discharge polluted storm water have potentially unlimited cycles of BMP review and revision. By allowing facilities to discharge polluted storm water without a timeline in which to meet applicable benchmark values, the proposed 2013 MSGP creates a si tuation in which a permittee can continuously discharge highly polluted storm water without any significant penalty or incentive to change industrial practices. The 2013 MSGP should address those facilities that repeatedly fail to meet benchmark values

and whose BMP implementation has proven ineffective.

Response The legal requirement to meet here is to include limits in the permit to meet or achieve WQS, and EPA has determined the requirements in the 2015 MSGP to be protective of water quality standard s. See section VI.B of the fact sheet. For example, in the event of a four

- quarter average benchmark exceedance, the MSGP requires significant actions on the part of the permittee to minimize to the extent achievable using control measures that are technol ogically available and economically practicable and achievable in light of best industry practice. Furthermore, benchmark exceedances are not necessarily indicative of potential water quality issues. The MSGP contains a general water quality

- based effluent limit that requires discharges to be controlled as necessary to meet applicable water quality standards. For any discharges that EPA determines will or do not meet applicable water quality standards, EPA may require

additional control measures on a site -s pecific basis to meet WQS or the operator to apply for an individual permit (e.g.,. when a definitive correlation between a water quality standards exceedance and a permittee’s stormwater discharges can be made).

Comment ID 0044.001.001 Issue Category: 1 .0

Author Name: Bryon Clemence General MSGP Comments2015 EPA MSGP Response to Comments June 4, 2015

55 Organization: Consulting Engineer

The general permit seems an appropriate way to regulate these stormwater discharges. I see three areas where the proposed permit could be improved or clarified: (1) the requirement for benchmark monitoring, (2) the proposed saltwater benchmarks, and (3) the federal/state requirements. Some of these comments pertain to Sector Q, Water Transportation, and others apply to the overall permit.

Response No response necessary.

Comment ID 0047.001.001 Issue Category: 1.0

Author Name: John Myers General MSGP C omments
Organization: Tennessee Valley Authority (TVA)

The Tennessee Valley Authority (TVA) appreciates the opportunity to review and comment on the Environmental Protection Agency (EPA) proposed rule, National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Industr ial Activities. As the nation's largest public power provider with stewardship responsibilities for land and water resources under the TVA Act, TVA supports the promulgation of rules and regulations that minimize environmental impacts to both aquatic and terrestrial resources from stormwater discharges associated with construction activities. In our opinion the 2013 MSGP represents an improvement in many ways from the 2008 MSGP, particularly the elimination of redundant inspection requirements. However, the re are a few provisions related to increased specificity in the non

- numeric technology

- based effluent limits that we believe are problematic and need to be reevaluated. TVA offers the following comments in that regard:

Response No response necessary, but EPA notes that the MSGP is a general permit, not a rule.

Comment ID 0059.001.001 Issue Category: 1.0

Author Name: Donald Schregardus General MSGP Comments

Organization: Department of Defense, Department of the Navy

DoD supports EPA' s efforts to issue a new MSGP to replace the permit issued in 2008. We have identified a number of issues in the draft permit related to Endangered Species Act consultations, eligibility requirements for new dischargers, restrictions on d ischarges to Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) sites and proposed changes to housekeeping measures. The enclosed comments provide our detailed concerns and recommendations.

Response No response neces sary.

Comment ID 0060.001.001 Issue Category: 1.0

Author Name: Katherine Preston General MSGP Comments

Organization: Airports Council International

- North America (ACI

NA)

II. GENERAL COMMENTS2015 EPA MSGP Response to Comments June 4, 2015

56 In 2012, ACI

- NA, in collaboration with Airlines for America, the Regional Airline Association, and the American Association of Airport Executives announced the launch of an aviation industry Voluntary Pollution Reduction Program (VPRP) focused on reducing the discharges of aircraft deicers to the environment. This program is being implemented over the 5

- year period from September 30, 2012 through September 30, 2017. During that period these partners will conduct outreach; encourage development, testing and commercially appropriate deployment of pollution reduction technologies; develop an aggregate national pollution reduction goal; and produce a report comparing the environmental benefits of pollution reduction technologies adopted between 2005 and 2017 wit h the quantitative reduction goal. The program partners expect to release this final report on November 30,

2017.

The VPRP is a tangible demonstration of the airport industry's commitment to proactive implementation of practical and effective stormwater controls to achieve meaningful reductions in pollutants from deicing operations. At the core of this program is the philosophy of applying deicing pollution reduction technologies that are best suited to the unique combination of operational, meteorologica l, and environmental conditions that exist at each airport. It is important to the industry that the success of this voluntary program not be undermined by requirements in the MSGP that constrain an airport's flexibility in implementing the best stormwater management controls for its situation. Many of the comments provided below are related to this concern.

The VPRP is a testament to the appropriate considerations that must be given to the unique nature of airport facilities, aircraft operations, and the heavily

- regulated safety environment in which they exist. Many of the specific comments provided below reflect an overarching concern that the EPA is exceeding its authority to regulate the point source discharge of pollutants to waters of the United States by attempting to mandate how operations and materials should be managed, and data collected, upstream from the discharge. This overextension of regulative authority is at odds with the foundation of the VPRP and threatens airports' ability to efficiently and effectively reduce deicers in stormwater discharges while balancing unique facility characteristics, aircraft operations, and safety requirements. Regulation through the proposed dictation of Best Management Practices undermines the permit in general and the benefits that can be achieved through the VPRP.

Moreover, a number of the proposed permit provisions for Sector S mandate coordination activities between airports and the owners and operators of regulated activities at their faculties. We believ e these specific coordination requirements exceed the EPA's regulatory authority. We are also concerned about the challenge of effectively implementing mandated coordination activities involving entities that are not governed by the permit. ACI

- NA would li ke to continue this discussion with EPA, focusing on how permit considerations, such as a copermittee structure, might be helpful in this regard.

Response The airport transportation (Sector S) sector

- specific provisions in the MSGP have been revised wit h clarifications that address many of the concerns raised by the ACI

- NA, including the effluent limits for deicing. See air transportation sector comment response essay.

Comment ID 0061.001.001 Issue Category: 1.0

Author Name: Ing. Jose Casas Lopez General MSGP Comments

Organization: Asociación Interamericana De Ingeniería Sanitaria Y Ciencias Del Ambiente Capítulo De Puerto Rico (AIDIS Puerto Rico)

A. Introduction and Program Benefits2015 EPA MSGP Response to Comments June 4, 2015

57 It is a fact that in spite of the major economic downturn that the U.S. and its territories have suffered for the past 8 to 10 years, very little has been done by EPA and other agencies to ease or provide flexibility to the regulated community; flexibility, which is much needed and that can be provided without obviously sacrificing the important goals of the programs being implemented. The number of industrial and commercial entities continued to shrink, and this is evident by the substantial reduction in t he number of NPDES permits active in the system compare to years ago. This is also the clear case of regulated entities

in the Commonwealth of Puerto Rico.

The 2013 MSGP (as the previous 1995, 2000 and 2008 permits) again reflects an increase in stringen t requirements, with negligible features in terms of streamlining requirements. We believe that as a starting point in terms of streamlining the program, the EPA can rely on enforcement flexibility. As a general comment, we encourage the EPA to take this opportunity to evaluate the inclusion in the 2013 MSGP of certain provisions that could open the door for the establishment of an expedited settlement program for industrial discharges that have potentially incurred in certain alleged violations to the NPDES permit.

Since the early 2000s, the EPA has encouraged Regions to use, in certain appropriate instances, expedited settlements as an additional tool in order to address compliance assurance and enforcement priorities. See,

Memorandum from John Peter Sua rez to Regional Administrators, "Use of Expedited Settlements to Support Appropriate Tool Selection", December 2, 2003 ("2003 Memorandum"). In this regard, the 2003 Memorandum explains that:

Expedited settlements are a valuable tool. They offer ‘real time ' enforcement in situations where violations are corrected and a penalty is obtained in a short amount of time, generally a few months from EPA's discovery of the violation. This approach is generally appropriate for minor, easily correctable

violations an d provides a discounted, non

- negotiable settlement offer in lieu of more formal, traditional administrative penalty actions. See, Id. at p. 2.

The typical mechanism that is employed in an expedited settlement agreement is a one

- page agreement that the regional office mails, and which the respondent must accept, depending upon the program, within a period of 30 to 45 days of receipt, unless an extension is granted. If the respondent accepts the offer to settle in exchange for a reduced penalty and minimized transactional costs, the respondent then agrees to waive its opportunity for a hearing and certifies, under penalty of perjury, that the violation and resulting harm have been corrected and in certain circumstances, that the respondent has taken steps to prevent future violations. See, Id. In addition, the 2003 Memorandum explains that taking an expedited settlement approach offers benefits to the environment and results in potential cost

- saving benefits to the EPA. When the expedited settlements are used in an appropriate manner, these shall result in regulated entities returning to compliance and paying penalties faster than what it would be accomplished through the

issuance of a non

- expedited administrative penalty order. See, Id., at p. 3. On the other hand, we also believe that the expedited settlement program can be of benefit to financially unstable regulated entities, or operations in economically deprived jurisdictions, among others.

The settlement agreement is a standardized document and its ter ms are non

- negotiable, thus the EPA saves resources that would otherwise be used in the commencement and pursuance of formal administrative action. See, Id. Moreover, expedited settlements help the agency strengthen future cases against those violators tha t continually repeat the same violation, or commit a closely related one, providing the EPA a much stronger position and evidence to support penalty factors or history of prior violations. See, Id. Finally, an expedited settlement will resolve a regulated entity's penalty liability and obtain compliance within a few months, while a traditional administrative action will probably take more than a year to get solved. See, Id.2015 EPA MSGP Response to Comments June 4, 2015

58 B. Factors Identified by the EPA in Identifying Program Areas Appropriate for Expe dited Settlement Programs

EPA Headquarters included in the 2003 Memorandum certain factors that identify programmatic areas that may be suitable for the establishment of expedited settlement programs. See, Id. These factors have been used to establish, for example, the Spill Preven tion Control and Countermeasures ("SPCC") Expedited Settlement Program, the Underground Storage Tank ("UST") Expedited Settlement Program, the Clean Air Act ("CAA") Expedited Settlement Program, and the most significant for these comments, the Expedited Settlement Offer Program for Storm Water (Construction).

We hereby include a summary of such factors as part of these comments, as we understand that the proposed 2013 MSPG for industrial activities is a perfect fit for the establishment of such type of

pr ogram, and the EPA as well as respondents would likely benefit from it.

1. Programs with violations that an inspector can witness at the time of inspection or that can be readily determined through simple information requests, on

- site document review, or data sources. Violations pursued by the EPA in connection with the NPDES MSGP programs are usually based on inspections conducted at the site (usually based on Compliance Inspection Evaluations) and requests for information required from respondent. Thus, the 2013 MSGP for Industrial Activity complies with this factor.

2. Programs with violations that are easy to fix or require low

- technology solutions such that, upon detection, the violator can quickly take measures to ensure compliance within the timeframe to accept expedited settlement offer and certify that the violation has been corrected (in 30 to 45 days). Violations that do not require the respondent to take some affirmative action, in addition to payment of a penalty, are not appropriate for an expedited settlement approach. Violations pursued by the EPA in connection with the NPDES MSGP programs usually entail violations that can be corrected in an expedited manner (i.e., outfall signs, non

- structural best management practices, housekeeping, trai nings and refreshers, etcetera), that can be complied with within a reasonable period of time. Thus, the 2013 also complies with this

factor.

3. Programs with violations that are considered minor, such as certain record

- keeping or reporting

violations. V iolations resulting in significant harm to humans or the environment or that present imminent endangerment are not appropriate. Violations pursued by the EPA in connection with the NPDES MSGP programs usually involve record

- keeping or reporting violations (such as not submitting the annual compliance report, not having copies of the SWPPP or the quarterly reports at the site and trainings provided, etcetera), so there is no doubt that this factor is also complied with.

4. Programs that have a limited enforcement presence and limited resources relative to the size of the regulated universe. The 2013 MSGP covers a large number of industrial facilities as it covers numerous sectors delineated in the permit. The Federal MSGP covers a very few states and territ ories.

5. Programs that need to increase their enforcement presence due to widespread noncompliance. The EPA is constantly issuing Administrative Complaints, Administrative Compliance Orders or referring the matters to the U.S. Department of Justice in co nnection with violations to the MSGP Program, which usually end up in Consent Decrees and Final Orders. The amount of work and time involved in the preparation of AC, ACO and referrals plus supportive work to DOJ, reduces the availability of time to

cover inspections and enforcement of a larger number of additional regulated entities, that would in the end result in a better and more complete monitoring of program compliance that could yield environmental benefits. Thus, an expedited settlement program will be a very useful tool in increasing enforcement presence and expediting the compliance with the program in a timely manner.2015 EPA MSGP Response to Comments June 4, 2015

59 Pursuant to the above

- mentioned factors, the 2013 MSGP for Industrial Activity should be more than qualified for the establishment of an expedited settlement program since it meets the mentioned criteria. Most importantly and as discussed below, on May 19, 2006, the EPA approved the Revised Expedited Settlement Offer Program for Storm Water from Construction Facilities ("ESO"), whic h in essence could be used as a model for developing an expedited settlement program for storm water from industrial facilities. See, Memorandum from Walker B. Smith to Water Management Division Directors, "Revised Expedited Settlement Offer Program for Storm Water (construction)", May 19, 2006.

C. Revised Expedited Settlement Offer Program for Storm Water from Construction Facilities ("ESO")

Pursuant to the EPA, the purpose of the ESO program is to promote compliance with the NPDES stormwater regulatio ns at construction sites by providing a "real time" mechanism of expedited enforcement in those instances where environmental impacts are potentially less significant, where violations can be corrected quickly and appropriate penalties easily collected. In this regard, the EPA explained in the ESO that "[i]n storm water cases, issuing timely and consistent enforcement actions is necessary to deter future violations and promote prompt return to compliance". (Emphasis added). See, Id., at p. 4. The EPA explai ns that such goal can be achieved by issuing an expedited settlement offer pursuant to the revisions to the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits ("Consolidated Rules"), 40 CFR Part 22. [FN1]

Accordingly, under the ESO program and given specific circumstances, a respondent of storm water regulations may choose to solve its violation through an expedited process in which it can (1) correct identified deficiencies; (2) sign an agreement with EPA certifying prompt correction; and (3) paying a determined penalty. See, Id. However, the EPA clarifies yet again that those violations appropriate for exped ited settlements are those that are easily correctable and that may pose some potential harm to human health or the environmental, but which do not result in significant harm to, or present an imminent and substantial endangerment to human health or the environment. See, Id. Moreover, the EPA stated

that:

The ESO was designed to provide an administratively streamlined approach to resolving violations where a full administrative compliance order (ACO) is not warranted. In requiring a respondent to correct deficiencies, certify those corrections and pay a penalty, the Expedited Settlement Agreement achieves the same ends as an ACO, but in a shorter, more easily administered format. See, Id.

The EPA established certain criteria for respondents to be eligible under the ESO such as the following: (1) sites where the penalty calculated via the ESO Deficiencies Form is no more than $15,000; (2) sites where there is no evidence of significant environmental impact; (3) sites where the operator is not a repeat

viol ator; and (4) sites where there is no evidence of non

- allowable, non

- storm water discharges (e.g., industrial process wastewater discharge, such as discharge from a concrete batch plant operation).

There are three important key terms that should be explained in terms of how the ESO works and how they are applicable not only to stormwater discharge violations coming from construction sites, but also for those coming from industrial sites as well.

(1) Deficiencies Form: there is a Deficiencies Form in which the monetary values assigned to each permit requirement reflect the cost the operator would have incurred had the operator obtained and complied with a permit, and a gravity component. Accordingly, the penalties should be based on all deficiencies found at a site, including (1) statutory violations, (2) violations of an NPDES permit, and (3) in the case of facilities without an NPDES permit, deficiencies that would have constituted a violation at a property permitted facility. In short, the region should consider all deficiencies at a site, whether or not the operator2015 EPA MSGP Response to Comments June 4, 2015

60 obtained a permit, when calculating a penalty. The Deficiencies Form will be incorporated by referenced into the Expedited Settlement Agreement. This is something that can be easily achieved for the MSGP for industrial activity as well, since monetary values can be assigned to each permit requirement.

(2) Preliminary Inspection Observations: this is an optional form that regions may choose to leave with a site operator at the time of inspection. It provides a simple checklist inspectors may use to highlight their initial observations about potential problems at a site. It is not a formal settlement offer and imposes no obligations on site operators who receive it. However, providing site

- specific deficiency information at the time of inspection will afford operators an opportunity to achieve prompt compliance if they so choose. This can also be helpful for industrial operators so that these can understand the potential problems at the site and giving them the opportunity to comply in a prompt manner.

(3) Expedited Settlement Offer: pursuant to 40 CFR Sec. 22, an Expedited Settlement Agreement is a "Consent Agreement and Final Order". This could also be applicable to the 2013 MSGP for industrial activity.

Below is a summary of how the process works, from the steps to be taken by the inspector until issuance of the expedited settlement offer, which we recommend be analyzed for application in a case involving violations to the proposed 2013 MSGP:

1. The inspector targets a site after consulting appropriate storm water targeting guidance and conducts a storm water inspection.

2. The inspector consults the ESO Criteria to determine whe ther the site is eligible for the ESO.

3. If the inspector determines that the site is eligible for the ESO, the inspector completes the Deficiencies Form and calculates a proposed penalty.

4. Regions should not leave a Deficiencies Form at a site afte r an inspection. Instead, regions can choose to have the inspector leave a Preliminary Inspection Observations form at the time inspection. If the inspector leaves a copy on site, the Region retains the ability to make a determination as to what type of

en forcement action to take, if any, for alleged violations observed during the inspection.

5. Regional management reviews the Deficiencies Forms and finalizes the appropriate penalty. Once the penalty is finalized, an Expedited Settlement Agreement along w ith Expedited Settlement Agreement Instructions sheet and the Deficiencies Form are mailed to each operator at the site within 21 business days of the inspection.

6. The site representative is given 30 days to return a signed Expedited Settlement Agreement and penalty payment to the Region. If the signed Expedited Settlement Agreement is not received within 30 days, it is automatically withdrawn without prejudice to EPA's ability to institute action for noncompliance as

identified in the Deficiencies Form . Regions have the discretion to extend the offer, for cause, but generally should not grant an extension beyond 60 to 90 days after the violator's receipt of the ESO. If the offer is withdrawn, the region should be prepared to escalate its enforcement res ponse by commencing a traditional administrative enforcement proceeding under 40 C.F.R. Part 22.

7. Before issuing an Expedited Settlement Agreement, the region must provide public notice and a reasonable opportunity to comment on the proposed issuance of the ESO. EPA's regulations require that the agency must provide, in the case of settlement by consent and final order, notice no less that 40 days before issuance of an order assessing a penalty. 40 C.F.R. § 22.45(b). Regions should consider any public

c omments received in the period regarding the Expedited Settlement Agreement. If, after reviewing the2015 EPA MSGP Response to Comments June 4, 2015

61 public comments, a region determines that the Expedited Settlement Agreement is appropriate, the region should proceed with issuance. No settlement is fina l without a final order from the Regional Administrator or Regional Judicial Officer ratifying the Expedited Settlement Agreement.

8. Regions should file the original signed Expedited Settlement Agreement with the Regional Hearing Clerk, mail a copy back to the respondent, and mail a copy to any commenters informing them of their right to file, within 30 days of receipt to their copy of the Expedited Settlement Agreement, either a request with the Regional Administrator for a hearing on the penalty pursua nt to CWA Section 309(g)(4)(c), or petition for judicial review to set aside the Expedited Settlement Agreement pursuant to CWA Section 309(g)(8) and Part 22. The Expedited Settlement Agreement is effective 30 days after signature, unless a request for a hearing on the penalty or a petition to set aside the Expedited Settlement Agreement is filed by a commenter. See CWA Section 309(g)(5).

9. Region should consult the most current Office of Compliance (OC) "Call Memo" for reporting requirements. Pursuant to the discussion above, ESOs should not have accompanying AOs AND therefore the only action reported in ICIS should be the ESO. Regions should report the environmental

benefits of ESOs in ICIS.

The procedure described above for the issuance of an expedited settlement agreement involving violations to the MSGP for construction activities, can be easily shaped to fit violations of the proposed 2013 MSGP

for industrial activities. The establishment of an expedited settlement offer program for the industrial MSGP would certainly be beneficial for EPA, the NPDES program, the regulated community, and the environment. We urge EPA to consider our recommendation.

[FN1] The Consolidated Rules provide that, where parties agree to settle one or more causes of action before the filing of an administrative penalty complaint, a proceeding may be commenced and concluded simultaneously by issuance of a consent agreement and final Clean Water Act section 309(g) penalty order. 40 C.F.R. § 22.13(b).

Response EPA’s enforcement of NPDES permits is coordinated by EPA’s Office of Enforcement and Compliance Assurance (OECA), and is outside the scope of the action, which is the re

- issuance of the MSGP. We have forwarded your comments on to OECA who would have the lead on the use of expedited settlements

under the MSGP.

Comment ID 0066.001.001 Issue Category: 1.0

Author Name: Timothy Carlstedt General MSGP Comments

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

UWAG acknowledges the tremendous effort EPA has made in developing the 2013 MSGP. Because of this effort we feel the 2013 MSGP is an improvement in many ways from the 2008 MSGP. However, there are provisions (both new and holdovers from the 2008 MSGP) that we believe are problematic and need to be reevaluated. With the move toward more specificity and detailed eligibility requirements, the benefits of a general permit versus an individual permit run the risk of being lost in the 2013 MSGP.

Among the improvements we see in the 2013 MSGP are the streamlined NEPA analysis (Part 2.4), consolidation of certain redundant inspection requirements (Part 3), clarification that the relevant receiving water is the first water of the U.S. to which a permittee discharge s (Parts 1.1.4.8, 1.1.4.9 and 2.2.2) (although see discussion below regarding an important caveat to this clarification), some new2015 EPA MSGP Response to Comments June 4, 2015

62 flexibility in BMP requirements (e.g., Part 2.1.2.1) and the "cut and paste" option for certain SWPPP requirements (Part 5.2. 4).

In the following sections we identify provisions we believe need reevaluation, generally discussing the provisions in the order they appear in the 2013 MSGP.

Response No response necessary.

Comment ID 0068.001.001 Issue Category: 1.0

Author Nam e: Marilyn Guthrie General MSGP Comments

Organization: Port of Seattle, Washington

Though the proposed MSGP is not directly applicable to most stormwater dischargers in Washington, Washington's Department of Ecology (and regulatory agencies in other states) will continue to use this permit to inform and set standards for their Industrial Stormwater General Permit as well as other associated stormwater programs. For this reason, final decisions made for the nationwide MSGP are important to other facilities in Washington State, including the Port of Seattle.

Response No response necessary.

Comment ID 0071.001.001 Issue Category: 1.0

Author Name: Robert Barnes General MSGP Comments

Organization: Midas Gold Inc. (MGI)

The project is a Brownfield site with a multi million ounce gold reserve and a large defined antimony resource. Since 2011, MG1 has invested nearly $150 million on local exploration, pre

- feasibility and

environmental baseline activities at the site. MGI is a local hire company, and has employed a work force of up to 130 people at the site and in their Lake Fork and Boise offices.

MGI has operated in full compliance with all applicable laws and regulations at the site since beginning its exploration activi ty in 2009. This includes compliance with all requirements and environmental and water quality maintenance commitments as set forth in the MSGP 2008 and more particularly described in our current Storm Water Pollution Prevention Plan (SWPPP) dated May, 2011 and updated January,

2013.

It is our understanding that this current SWPPP and the MSGP 2008 authorize coverage until a new permit is reissued by the EPA. While certain requirements in this new draft permit are similar to the previous permit, we find o thers to be over

- reaching, duplicative, and unnecessary. Further, we see no justification for these proposed changes in the administrative order, and no corresponding additional protection afforded the environment from their application. Our concerns and issues are highlighted in the

discussion which follows.

Background on Stibnite Site

The Stibnite Golden Meadows Project (Project) is situated in the remote mountains of central Idaho about 75 miles northeast of Cascade, Idaho at elevations that vary from 6,000 to 9,000 ft. ASL. The Project poses unique water management needs, as the winters are characterized by extreme low temperatures and2015 EPA MSGP Response to Comments June 4, 2015

63 high snowfall. These harsh conditions are followed by rapid snowmelt, high runoff, and then dry to very dry summer/f all seasons with high

- intensity short

- duration rainfall events. Annual precipitation is over 30 inches. About 70% falls during the six month period November through April with January the wettest month (nearly five inches) and July the driest (0.65 inches ).

These conditions and dramatic daily and seasonal swings in temperature require a site

- specific, project

specific approach to stormwater management. This is how the current program is structured. It is effective, and it does not require changes when no additional corresponding protection for local water quality will be provided. In other words, the lack of justification for new permit conditions on the Project highlight our more specific concerns with certain proposed changes. These concerns are listed in the "part- specific" comments which follow.

Effective stormwater management at a remote site like the Project area can best be characterized as an art. It is a matter of experience, best engineering judgment, and trial and error. The current MSGP 2008 recognizes the adaptive and site

- specific nature of stormwater controls. The overly prescriptive nature of the proposed permit conditions may fit better at a highly developed operating mine, where substantial staff and equipment are available. However, an inactive mine site involving exploration and resource delineation drilling is much more difficult to efficiently apply BMPs that are "fitted" to the local terrain

and environment. Bottom line

- an adaptive approach works white an overly prescriptive "thou shall use the following prescriptive practices" does not.

Response See the mining response to comment essay.

Comment ID 0071.001.011 Issue Category: 1.0

Author Name: Robert Barnes General MSGP Comments

Organization: Midas Gold Inc. (MGI)

MGI appreciates the opportunity to comment on these very important proposed draft permit conditions. To reiterate, effective storm water management at the Project site or at similar, remote high -elevation sites is complex. Such management requires site -spe cific, project

- specific best engineering judgment. We urge EPA to seriously consider our comments regarding remote sites and to leave the current provisions in the 2008 MSGP unchanged. We invite representatives of your staff to our Project to view our prog ram and its mosaic of water management needs to better ascertain the types of unique conditions we encounter in the field. Thank you for your consideration of these comments in the final rulemaking.

Response See mining response to comment essay.

Comm ent ID 0072.001.001 Issue Category: 1.0

Author Name: Leah Pilconis General MSGP Comments

Organization: The Associated General Contractors of America (AGC of America)

AGC members are directly affected by regulatory decisions made by federal and state permitting authorities under the Clean Water Act (CWA). AGC members own and operate facilities located on or near waters of the United States. Many conduct operations that generate "stormwater associated with industrial activity" as defined at 40 CFR Part 122.26(b)(14) in areas where EPA serves as the NPDES permitting authority, and are subject to EPA's Multi

- Sector General Permit (MSGP). In addition, AGC2015 EPA MSGP Response to Comments June 4, 2015

64 members operate in states that have been authorized to issue their own general permit for industrial stormwater but historically relied on EPA's MSGP as the "model" permit that informs the state's general permit.

While the MSGP may be limited in its geographic scope, it is very important because it serves as the model for most state permits and provides the most expedient explanation for EPA's "industrial stormwater permitting strategy." Even for states that claim otherwise, the MSGP is the single most important industrial stormwater permitting document nationally, and most states rely upon EPA's MSGP and accompanying fact sheet (MSGP Fact Sheet) explanations for determining the directions of their own authorized stormwater general permit programs. Hence, EPA should recogniz e the importance, nationally, for ensuring the MSGP is clearly

- crafted and fully within the scope of the CWA. [FN1]

Executive Summary of Key Comments

In the comments that follow, AGC identifies the many situations in which a general construction

contra ctor will be subject to both the MSGP and EPA's Construction General Permit (CGP). AGC also explains how and why these firms would be uniquely burdened by differences between the measures and standards that apply to active construction sites and the measures and standards that apply to industrial operations. AGC is particularly concerned that Part 2 of the draft permit would prohibit the discharge of vehicle and equipment washwater.

AGC also addresses EPA's proposal to limit discharges into a federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) site, and the seemingly unfettered discretion that EPA would have to shut down a previously permitted industrial facility whenever the agency designated a new site as hazardous and determined that the facility discharges into that newly designated site. AGC's comments point out that the scope of the proposed limitations

- and the conditions that must be met to qualify for permit coverage

- are very unclear. The regulated comm unity must be given fair and adequate notice of what is required to comply with the MSGP and, similarly, it must be able to rely upon coverage under the general permit for the permit's full five

- year term.

AGC also raises significant and reasonable concerns regarding EPA's new proposed requirement for facilities to put their Stormwater Pollution Prevention Plan (SWPPP) documents on the internet. Such a requirement is impractical and would serve as a deterrent to any facility putting more into their SWPPP

t han the bare minimum requirements.

In addition, AGC raises issues and concerns with EPA's attempt to restrict the "Permit Shield" provisions of the Clean Water Act (Section 402(k)). In fact, EPA may be unnecessarily or unintentionally restricting

the MSG P permit coverage for legitimate discharges of stormwater associated with industrial activity.

[FN1] See CWA Section 402(p)(2)(B), which requires NPDES permits for stormwater pollutant discharges "associated with industrial activity."

Response Vehicle and equipment washwater are wastewater non

- stormwater discharges and are not authorized by the MSGP, except for earth

- disturbing activities conducted prior to active mining activities for Sectors G, H, and J provided that there is no discharge of s oaps, solvents, or detergents. This prohibition is unchanged from previous MSGPs. Vehicle and equipment wash waters are not appropriate for coverage under the MSGP (except for the specific phases of mining described above, which would otherwise be

covered under the CGP), because such discharges are likely to contain pollutants from industrial activity that are best addressed through another permit, e.g., the CGP, where vehicle and equipment wash waters from construction sites commonly contain sediment and c an be adequately controlled through the control2015 EPA MSGP Response to Comments June 4, 2015

65 measures implemented under that permit. EPA also reminds the commenter that if an operator has CGP coverage and MSGP coverage at the same facility, the operator may discharge vehicle and equipment wash water consistent with the requirements of the CGP for any earth

- disturbing activities covered by the CGP portion of the project.

The commenter misunderstands to some extent the CERCLA provision in the proposed MSGP, and to some extent EPA has modified the provi sion in light of comments received. Permitted facilities would not be “shut down” when a CERCLA site is listed for purposes of this provision, as this is outside of EPA’s authority and not the intent of the provision. Rather, such facilities, before they may submit a Notice of Intent (NOI) to be covered by the permit, would have their controls reviewed by EPA’s Region 10 office for adequacy with regard to meeting water quality standards, and if determined to be deficient, they would have opportunities to re vise those controls in order to satisfy that already existing permit requirement. The alternative, were the facility to object to the stormwater controls revisions needed to ensure that the facility’s discharge will meet WQS, would be to apply for an indiv idual permit. Existing facilities that were covered under the 2008 MSGP would maintain coverage under the administratively continued 2008 permit until EPA has either made an affirmative determination of the facility’s eligibility under the 2015 MSGP, or pr ovided coverage under an individual permit. No existing discharger would be forced to cease operating due to this provision. The final permit also clarifies that the scope of the provision is a limited

list of waterbodies associated with a CERCLA clean -up in EPA Region 10, which is an area of the country for which EPA has extensive information about CERCLA recontamination being an issue due to stormwater discharges.

Regarding SWPPP posting online or in the NeT system, EPA has minimized the burden associat ed with such reporting as much as possible. Many facilities have Internet presence, so posting a document there is practicable. For those who cannot or do not wish to use this option, they can cut and paste or summarize the necessary information. EPA is convinced that the benefits to stakeholders far outweigh the permittee’s burden and the requirement is a reasonable measure to help ensure SWPPPs are meaningfully developed and implemented. Enhanced transparency and public accountability will help provide all stakeholders with more timely, complete, and accurate information about potential sources of water pollution associated with facilities covered under the MSGP, and may contribute to increased compliance and improved water quality. Providing the public wi th easy access to such information also provides a powerful incentive for operators to improve performance and ensure compliance with the permit.

Regarding the permit shield provision, the permit shield for legitimate discharges of stormwater is not

aff ected by the language regarding the scope of the permit shield in the MSGP, and this has not changed from previous permits, but is now being made explicit due to recent litigation. The purpose of this language is to clarify a misconception of some operator s covered under the permit that the permit covers other types of discharges that are not expressly authorized (i.e., pollutant discharges other than those associated with stormwater from industrial activity or with the exclusive list of authorized non

stor mwater in the permit).

Comment ID 0073.001.001 Issue Category: 1.0

Author Name: Kelly Norton General MSGP Comments

Organization: Arizona Mining Association (AMA)

AMA's members are directly affected by policy, regulatory, and permitting decisions made pursuant to the federal Clean Water Act ("CWA"). AMA members own and operate metal and nonmetal mines and related facilities (Sectors F, G, and J) that often require stormwater permits under CWA Section 402 either directly through the MSGP (on Indian lands in Arizona or in states (e.g., New Mexico) without2015 EPA MSGP Response to Comments June 4, 2015

66 CWA primacy) or through general permits issued by states (e.g., Arizona) that have primacy to implement the CWA Section 402 permit program (these states often pattern their industrial stormwater general permits after EPA's MSGP). AMA's comments first address several key concerns with the draft MSGP, including application of construction general permit ("CGP") require ments to Sectors G and J, application of benchmark monitoring to hard rock mining operations, expanded water quality standard provisions, and expanded corrective action requirements. With respect to these key concerns, AMA respectfully requests that the CGP requirements be removed from the draft MSGP for both Sectors G and J and that benchmark monitoring be removed from the draft MSGP for hard rock mining (Sector G). AMA further requests that the language in the 2008 MSGP addressing water quality standard c ompliance and corrective action be retained in lieu of the expanded language proposed in the draft MSGP. In addition, AMA's comments outline several additional concerns with the draft MSGP on a section -bysection basis.

Response See mining response to c omment essay.

Comment ID 0075.001.001 Issue Category: 1.0

Author Name: Claudio Ternieden General MSGP Comments

Organization: Water Environment Federation (WEF)

The original intent of the draft MSGP was to provide a streamlined permitting process for industrial facilities covered by the process. In addition, EPA's website (accessed at http://cfpub.epa.gov/npdes/stormwater/msgp.cfm on 11/14/13) states that the intent of these changes is to "make the permit process more streamlined." Overall, some proposed new requirements contained in the draft MSGP will have exactly the opposite effect. The proposed MSGP results in a more burdensome process with a number of new req uirements for many facility owners which may require them to retain consultants to help comply with the terms of this draft permit, thus adding to their costs. In addition, the language of the draft MSGP has become more complex, potentially making it more difficult to understand. As such, the economic impact to the regulated entities covered by this permit, cannot reasonably be considered to be "minimal" as stated on page 59677. This is especially true in the case of

small businesses.

We provide additiona l comments on the major changes highlighted in the Federal Register notice as

follows.

1. National Environmental Policy Act (NEPA) Review for Dischargers

a. WEF endorses the concept of EPA preparing and submitting an Environmental Impact Statement (EIS ) as required to meet the requirements of the National Environmental Policy Act so long as it is clear that this is the only Clean Water Act (CWA) NPDES permit

- related NEPA review that dischargers covered by this MSGP will need. Further, the NEPA EIS shoul d be available to the States who may want to use it to perform their NEPA

- like reviews when they propose analogous State permits.

Response EPA disagrees with commenter’s assertion the new MSGP is more burdensome and difficult to understand. EPA spent considerable effort to rewrite the permit to incorporate plain language and clarity where it was deemed appropriate. More terms have been defined and nebulous or missing compliance details and timeframes have been clarified, creating less need for interpretation on the part of operators. Deficiencies in environmental protectiveness and other similar revisions from prior MSGP versions have been addressed in this permit, as is appropriate in the evolution of permits. The majority of facilities will2015 EPA MSGP Response to Comments June 4, 2015

67 not need sig nificant changes, nor will they incur economic impacts if their SWPPPs were thorough and effective in the past.

EPA notes the commenter’s support for EPA’s NEPA approach, and confirms that dischargers under the MSGP will not need another NPDES permit

- rela ted NEPA review. The Environmental Assessment that informed EPA’s Finding of No Significant Impact is available on the public docket for this permit at www.regulations.gov

.

Comment ID 0076.001.001 Issue Categor y: 1.0

Author Name: William Adams General MSGP Comments

Organization: North American Metals Council (NAMC)

As detailed below, NAMC urges EPA to revise the MSGP to include two important factors

-- (1) aquatic

life criteria for metals that reflect the state -of-the- science with regard to bioavailability and toxicity; and (2) consideration of mixing of stormwater in receiving waters. These two issues are related because the criteria for metals ultimately needed for protecting designated uses should be based on bioavailability to aquatic organisms, which depends on water chemistry conditions in receiving waters (not in discharge outfalls or stormwater ditches or drains).

We urge EPA to take the MSGP renewal as an opportunity to improve vastly the basis of National Pollutant Discharge Elimination System (NPDES) stormwater permits. Earlier MSGPs have become important precedents because states, such as Washington and Oregon, have adopted MSGP provisions in state general industrial stormwater permits. NAMC believes this is inappropriate because it has the potential for MSGP benchmarks being used as if they are water qual ity standards.

Response

See the monitoring response to comment essay.

Comment ID 0078.001.001 Issue Category: 1.0

Author Name: Jerry Call General MSGP Comments

Organization: American Foundry Society (AFS)

The American Foundry Society (AFS) hereby submits the following comments on the United States Environmental Protection Agency (EPA) draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Industrial Sources, also referred to as the

Multi- Sector General Permit (MSGP). 78 Fed. Reg. 59672 (September 27, 2013). In response to the draft MSGP, AFS is concerned about several issues that will impose unnecessary burdens on metalcasting operations that are implementing available best management practices (BMPs) pursuant to the MSGP to control stormwater discharges from their facilities.

Response No response necessary.

Comment ID 0079.001.001 Issue Category: 1.0

Author Name: Jeffery Hannapel General MSGP Comments

Organization: The Policy Group on behalf of the National Association for Surface Finishing (NASF)2015 EPA MSGP Response to Comments June 4, 2015

68 These comments are submitted on behalf of the National Association for Surface Finishing (NASF) regarding the United States Environmental Protection Agency (EPA) draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Di scharges from Industrial Sources, also

referred to as the Multi

- Sector General Permit (MSGP). 78 Fed. Reg. 59672 (September 27, 2013). In response to the draft MSGP, NASF is concerned about several issues that will impose unnecessary burdens on surface finishing operations that are implementing available best management practices (BMPs) pursuant to the MSGP to control stormwater discharges from their facilities.

NASF members will be impacted by the draft MSGP because it will subject surface finishing oper ations to stormwater permit requirements that are neither appropriate nor necessary for these operations.

Response No response necessary.

Comment ID 0080.001.001 Issue Category: 1.0

Author Name: Louis Warchot and Michael Rush General MSGP Comments

Organization: The Association of American Railroads (AAR)

AAR generally supports the EPA proposal, with some significant exceptions. The problems with EPA's proposal primarily concern the 90

- day period for filing the Notice of Intent (NOI) submittal in light of new requirements, the establishment of the benchmark values, and language in the MSGP potentially requiring industrial facilities to treat pollutants not related to the industrial activity (e.g. pollutants from run on, natural background levels, and other sources such as air deposition or industrial or brow nfield legacy pollutants).

The MSGP is intended to protect water resources under a simplified administrative process for multiple facilities to get permitted versus a more complicated process of procuring an individual discharge permit. Approximately ev ery five years EPA re

- proposes and finalizes revisions to the MSGP for the states not authorized by EPA to administer the program. Generally, the EPA

- authorized states adopt the EPA MSGP as is. Consequently, while most AAR member facilities or projects subject to industrial stormwater permitting will be permitted under EPA

- authorized state

- specific permits, EPA's determinations in this MSGP will apply to virtually all industrial facilities meeting the 40 C.F.R. Part 126

criteria.

This proposal would add unnecessary requirements for filing the NOI, developing Storm Water Pollution Prevention Plans (SWPP), and EPA approvals of SWPPPs and NOIs, including new benchmark parameters and compliance sampling and testing requirements. AAR does not support these exp ansions of

the MSGP.

Response With regard to the concerns about the NOI filing requirements, EPA notes that a new system developed for electronic reporting may relieve the burden associated with paper and mailing. The 90 -day requirement to file a new NOI is consistent with previous versions of the MSGP, and because only minor changes have been made and the regulatory community has been on notice about these potential changes for well over a year, EPA is convinced that the deadline is reasonable. However, recognizing that some facilities could be delayed due to new eligibility requirements in the permit, EPA may extend the deadline

on a case -by- case basis, as described in Table 1

- 2 of the final 2015 MSGP.

Regarding the concern about “EPA approvals of SWPPPs and NOIs”, while EPA may review SWPPPs2015 EPA MSGP Response to Comments June 4, 2015

69 and NOIs, there is no EPA “approval” of either. Such reviews may happen as part of EPA’s oversight responsibilities, but this is not new to this permit. EPA notes that NOIs sometimes contain erroneous

information so reviews may help to catch such instances.

Regarding new benchmarks, EPA disagrees that there are new pollutants or parameters. Some new benchmark levels are included to account for saline waters, but this is a technical correction from past

MSGPs. Th ere are no new compliance sampling or testing requirements in this permit.

Comment ID 0083.001.001 Issue Category: 1.0

Author Name: David Wagger General MSGP Comments

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

First, ISRI recognizes the inherent challenges facing U.S. EPA in crafting a flexible, effective MSGP and further appreciates the proposed changes to clarify and to streamline compliance with the Draft 2013 MSGP, including simplified SWPPP descriptions for procedural (i.e., non -site- specific) control measures (§2.1) and consolidation of inspection procedures (§3.1).

However, while the Draft 2013 MSGP is substantially the same as the 2008 MSGP, ISRI finds that some provisions in the Draft 2013 MSGP, whether newly proposed or not, are in need of clarification or revision. Some of the sought clarifications and revisions are based on recent (i.e., post -2008-MSGP) information on stormwater management or regulation.

The following comments are provided in approximate order of the sections of the Draft 2013 MSGP.

Response No response necessary.

Comment ID 0083.001.013 Issue Category: 1.0

Author Name: David Wagger General MSGP Comments

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Eligibility for new dischargers related to WQS, as well as general compliance with applicable WQS of a receiving water, should be based on the effect of any stormwater discharge at the point where it enters, mixed or unmixed, the receiving water. The perm it application process should include procedural details when U.S. EPA receives a petition by an interested person to require coverage under an alternative permit instead of the 2013 MSGP. Permit compliance should be clarified for control measures, especia lly those that include options, and should distinguish between different types or degrees of non

- compliance. The requirements for minimizing exposure need to be made internally consistent, and all should be conditioned on feasibility, especially those involving permanently or temporarily moving industrial activities, equipment, and materials indoors or under cover. Taking all reasonable steps upon discovery of damaged control measures, as well as for other corrective actions, should not be "immediate" becau se of the uncertain scope of "all reasonable steps" to be conducted "immediately" and the associated uncertainty about compliance. Reductions in velocity or flow rate of stormwater runoff or stormwater discharges may not be required for erosion and sediment control, management of runoff, or any other control measure, but such reductions may be recommended to and implemented by permittees as effective elements of a stormwater management program. The status of storm events during non

- business hours needs to be clarified concerning visual assessments and benchmarking monitoring. The SWPPP availability options of posting on

- line and submitting via the NOI need to remain equivalent options for2015 EPA MSGP Response to Comments June 4, 2015

70 permit applicants; however, posting SWPPPs on

- line includes significan t regulatory and other risks that need to be addressed. Benchmark monitoring should be revised, if not eliminated, because its use with current benchmarks does not truly indicate effective implementation of the SWPPP or control measures and simply leads to continued cycles of exceedances and corrective actions. Off

- site sources of benchmark parameters over which the permittee can demonstrate little or no control should be excludable from reported stormwater

- discharge concentrations and should not count towards a benchmark exceedance that results in corrective action and continued monitoring. Finally, the definition of "minimize" should incorporate ‘feasibility', which would address other issues mentioned above.

Response For a discussion of WQS and mixing zones, see the monitoring response to comment essay

.

Regarding petitions asking EPA to require an individual permit, see EPA’s NPDES permitting regulations at 40 CFR 122.28(b)(3).

The MSGP provides considerable flexibility to permittees in selecting the control measures used to meet the permit’s technology

- based and water quality

- based effluent limits, recognizing that the control measures needed to adequately minimize pollutants will vary considerably for each facility. As such, it is not practicable for EPA to distinguish between different types or degrees of non

- compliance for each of the control measures possibilities that could be implemented for each of the effluent limits. However, the permit is clear regarding what constitutes non

- compliance for each of the effluent limits in the permit. Additionally, language clarifications have been added to the MSGP regarding mitigating factors that could influence the selection of controls for the purposes of complying with the effluent limits.

EPA disagrees with the commenter’s implication that the requirements for achieving no exposure are internally inconsistent. No exposure is an option, so considerations of “feasibility” are not for EPA to decide; it is the operator’s responsibility, if it chooses this pat h, to do what is feasible to achieve no

exposure.

Regarding the corrective actions comments, see response to comment 0033.001.003.

Regarding the timing issues associated with assessments and benchmark monitoring, see monitoring
response to comment essay

.

Further information is needed in order to understand fully the commenter’s concern about the “significant regulatory and other risks that need to be addressed” in the SWPPP public availability requirement. The permit and Fact Sheet fully explain the SWPPP posting requirement.

EPA disagrees with the commenter’s assertion that “benchmarks do not truly indicate effective implementation of the SWPPP or control measures and simply leads to continued cycles of exceedances and corrective actions.” See the monitoring response to comment essay. In addition, benchmark monitoring and the associated exclusions, including exceptions for run

- on, are fully explained in the Fact Sheet as well as the permit.

EPA notes that the term “minimize” as defined in the MSGP does include “feasibility”, and as such, many

of the commenter’s concerns are addressed.

Comment ID 0085.001.027 Issue Category: 1.0

Author Name: Zachary Griefen et al. General MSGP Comments

Organization: Conservation Law Foundation et al.2015 EPA MSGP Response to Comments June 4, 2015

71 VI. PAHs Discharged From Coal Tar Sealed Surfaces At Industrial Facilities

A. EPA should establish a non

- numeric effluent limit that categorically prohibits the use of coal tar sealants on all paved surfaces at industrial facilities.

In the Fact Sheet, EPA states concern that, notwithstanding the proposed effluent limitations for this MSGP, the discharge of stormwater associated with industrial activity will continue to cause sediment contamination at levels that pose an imminent and substantial endangerment to health and the environment. [FN77] EPA is right to be concerned. Fortunately, there is at least one easy, cost -effective step EPA can make to significantly affect this risk: EPA can eliminate the significant volume of PAHs discharged in industrial stormwater that originates in coal tar pavement sealants.

Many of the outdoor surfaces at industrial facilities are paved. A large number of these paved surfaces are

also "sealed"

- covered with a thin coating called pavement sealant (or pavement sealcoat). Across the United States, many of the pavement sealants marketed for use at industrial facilities are made from

refined coal tar

- a toxic by

- product of the coal coking process that is also referred to as coal tar pitch or

RT- 12. The Pavement Coating Technology Center, an industry trade group, estimates that 85 million gallons of coal tar pavement sealants are sold nationwide each year. [FN78] A significant fraction of this sealant is used on pavements at industrial facilities, ranging from airports to factories. Coal tar pavement sealants frequently contain hundreds or thousands of times more polycyclic aromatic hydrocarbons (PAHs) than competing sealant products made from asphalt or acrylic. [FN79]

Coal tar sealants are a threat to public health and the environment because they release significant quantities of toxic and carcinogenic PAHs into the environment. EPA believes that at least seven of the PAHs found in coal tar pavement sealants are probable human carcinogens. And in 2013, EPA announced

it was changing the characterization of one PAH in coal tar sealant, benzo(a)pyrene, from a "probable" to a "known" human carcinogen.

Once applied to pavement, coal tar based sealants begin to degrade under the heavy friction of vehicles. In recent years, the U.S. Geological Survey (USGS) has concluded that as these sealants degrade into microscopic dust particles they release millions of pounds of PAHs into stormwater discharges that then enter nearby urban and suburban environments. In 2010, the USGS concluded that coal tar pavement sealants are primarily responsible for an upward trend in the PAH concentrations of urban and suburban waterbodies across much of the United States. [FN80] In 2011, EPA released a study confirming that coal tar pavement sealants release hundreds of times more PAHs into the environment than other kinds of sealant. [FN81] And in 2009, the National Research Council noted that:

Unsealed parking lots receive PAHs from the same urban sources as do [coal tar] sealed parking lots (e.g

., tire particles, leaking motor oil, vehicle exhaust, and atmospheric fallout), and yet the average yield of PAHs from the sealed parking lots was found to be 50 times greater than that from the control lots. [FN82]

In 2012, the USGS concluded that the toxic dust from coal tar pavement sealant is settling in homes and is the most important PAH exposure pathway for many infants and small children. "Children living adjacent to pavement with coal tar

- based sealant likely are exposed to about 14

- fold higher doses of PAHs through ingestion of contaminated house dust than are children living in residences adjacent to unsealed pavement, and that exposure from ingestion of PAH

- contaminated house dust is estimated to be more than double that from diet, even under conservative assumptions."[FN83] Other studies show that aquatic ecosystems contaminated with PAH

- laden sealants are less biologically robust, and that animals exposed to these degraded sealants suffer from problems including developmental delays and stunt ing,2015 EPA MSGP Response to Comments June 4, 2015

72 poor reflexes, tumors, and early death. [FN84]

A 2013 study that involved a collaboration of scientists at Baylor University and the USGS concluded that children exposed to soil and house dust contaminated by coal tar sealants take in the vast major ity of their total lifetime dose of PAHs at an early age. At the extreme, those children in the 95th percentile for total lifetime dose of PAHs (reasonable maximum exposure) take in 50% of those PAHs between ages 0 and 6 and 80% of the total estimated reasonable maximum exposure dose between ages 0 and 18. Even the median child growing up in the presence of coal tar affected soil and house dust has an estimated lifetime dose of PAHs 38 times higher than a child growing up away from these sources of coal tar. The researchers calculated that these early exposures to PAH dramatically increase the risk of developing a PAHrelated cancer by age 70, from less than one in a million with no coal tar sealant exposure, to nearly one in ten thousand in the median case, and to more than one in ten thousand for the most exposed children. [FN85]

The presence of PAHs from coal tar pavement sealant in runoff also raises stormwater management costs, including the cost of managing and remediating polluted sediments trapped in stormwater control systems, as well as polluted street sweeping debris. A number of jurisdictions have reported widespread PAH impairments:

•The Minnesota Pollution Control Agency has found PAH impairments throughout Minnesota's urban watersheds that are attributable to urban runoff, and to the use of coal tar sealants in particular. [FN86]

•Urban runoff is estimated to account for 36% of the total PAH input into Rhode Island's Narragansett Bay. [FN87]

•In Florida, PAH impacts were discovered in soil s adjacent to and beneath an asphalt parking lot of a former retail shopping center. Concentrations adjacent to the parking lot decreased with increasing distance from the parking lot. [FN88]

•In 2003, Ohio EPA assessed PAH concentrations in the Mad River Basin and found that a large proportion of the samples contained PAH concentrations that were greater than the Probable Effects Concentration (PEC) guidance values published in the academic li terature. [FN89]

•Virginia DEQ has determined that the principal aquatic stressors impacting the Lewis Creek Watershed are lead, total PAHs and sediments. [FN90]

Many of these PAH impairments are attributable to stormwater runoff from paved surfaces. A nd as research performed by both EPA and USGS shows, there is a high likelihood that a significant fraction of the PAH runoff from paved surfaces is attributable to the use of coal tar sealants.

There are safer and widely

- used alternatives to coal tar based products, including asphaltbased and PAH

free sealants. Sealants made with asphalt instead of coal tar, for example, contain 1000 times fewer PAHs but are similar in cost and performance. Even after coal tar is refined and diluted into a final paving

p roduct, analysis of scrapings from different parking lots shows that coal tar sealants contain between 3.4% and 20% total PAHs by weight, while asphalt sealants range from 0.03% to 0.66% total PAHs by weight. [FN91] Historically, asphalt

- based sealants hav e dominated the western U.S. market, while coal tar sealants have been more prevalent east of the Rocky Mountains. In cities and states where coal tar sealants already are banned, they have been replaced with asphalt

- based sealants without any reported

dis ruption.

The Clean Water Act obligates EPA to ban the use of coal tar pavement sealants at industrial facilities in2015 EPA MSGP Response to Comments June 4, 2015

73 this MSGP. EPA regulations require that a general NPDES permit contain appropriate technology -based effluent limits. [FN92] A general perm it does not meet the BAT effluent standard unless it includes an effluent limitation prohibiting the use of coal tar sealants because any user of coal tar pavement sealant can easily and cost

- effectively eliminate a major source of PAHs simply by switching to an asphalt or

PAH

- free sealant product. There are no technical, engineering, or economic considerations preventing such a switch, and the alternatives are widely available. A prohibition on the use of coal tar pavement sealants is the best available technology to prevent this source of PAH discharge from industrial facilities.

Further, a general NPDES permit must contain water quality based effluent limits for pollutant discharges that have a reasonable potential to cause or contribute to a violation of water quality standards. [FN93] Coal tar pavements sealants create a reasonable potential for stormwater discharges from paved surfaces to cause or contribute to violations of water quality standards. For instance, lab studies indicate that
exposure to coal tar pavements sealants containing PAHs can have adverse effects on some amphibians species. [FN94] Field studies indicate that aquatic habitats contaminated by pavement sealants score lower on several measures of ecosystem health including abundance o f organisms, species richness, and presence of sensitive species. [FN95] In three of six recently

- tested watersheds in US central and eastern cities, where coal tar sealcoats are commonly used, sedimentary PAH concentrations exceeded the

"Probable Effects Concentration" (PEC) of 22.8 ppm. [FN96] Therefore, the MSGP must control the discharge of PAHs by banning the use of coal tar pavement sealants in order to meet the Clean Water Act's water quality based provisions.

To implement this suggestion, commente rs request that EPA modify the MSGP to contain, as a BMP and

a non

- numeric effluent limit, a categorical prohibition on the use of coal tar based pavement sealants at all covered facilities. Relatedly, EPA should modify Section 1.1.3 of the MSGP to note that pavement wash waters from coal tar sealed parking lots are not eligible for coverage under this permit, no matter what cleaning agents are used.

Second, commenters ask that EPA use its residual designation authority to extend a ban on the use of coal tar sealants to all paved surfaces at industrial sites. In other words, EPA should not only ban the use of coal tar pavement sealants on paved areas that are traditionally within the definition of an area dedicated to industrial activity, it should also ex tend the ban to other paved surfaces at industrial facilities such as employee parking lots. In establishing the 1999 Phase II stormwater regulations, EPA determined that administrative and employee parking lots are non

- industrial areas and are not subject to industrial stormwater permit requirements. [FN97] But EPA explained that its decision to exclude employee parking lots and similar paved surfaces from permitting was based on the lack of "data indicating that discharges from these areas at an industria l facility cause significant receiving water impairments."[FN98] Today, EPA has access to a considerable volume of data, compiled by the USGS and others, indicating that even a single employee or administrative parking lot can cause a significant receiving water impairment for PAHs if it is sealed with a coal tar pavement sealant. Thus, EPA has ample reason to address this regulatory lacuna. EPA also has clear authority under its reservation of residual authority. [FN99] Therefore, commenters request that E PA revise the MSGP to ban the use of coal tar pavement sealants on every paved surface at industrial facilities, including administrative and employee parking lots

and similar areas.

Preventing pollution through a prohibition on the use of coal tar sealants at the source is by far the most

cost- effective pollution reduction measure that EPA can take. Rather than passing on an unfunded mandate to clean up PAHs to local governments and MS4 operators that receive the PAH -contaminated discharge from industrial facilities, EPA should include a prohibition on the use of coal tar sealant in this

MSGP.

[FN77] See Fact Sheet at 13.2015 EPA MSGP Response to Comments June 4, 2015

74 [FN78] See Cheryl Hogue, "Dustup Over Pavement Coatings; Texas city tracks stream pollution to sealant, then bans coal -tar- based co ating" 85 Chem. & Eng'g News 61 (2007), available at http://pubs.acs.org/cen/government/85/8507gov1.html.

[FN79] The exact ratio depends on the formulation of the two products being compared. See Peter C. Van Metre, Barbara J. Mahler, "Contribution of PAHs from coal

- tar pavement sealcoat and other sources to 40 U.S. lakes," 409 Science of the Total Environment 334, 335 (2010). There are also alternative sealant products on the market that are entirely PAH free.

[FN80] See, e.g. Peter C. Van Metre, Barbara J. Mahler, "Contribution of PAHs from coal

- tar pavement sealcoat and other sources to 40 U.S. lakes," 409 Science of the Total Environment 334, 335 (2010).

[FN81] Assessment of Water Quality of Runoff From Sealed Asphalt Surfaces, EPA, September 2011, available at www.epa.gov/ORD/NRMRL/pubs/600r10178/600r10178.pdf

[FN82] USM at 191.

[FN83] Mahler, B.J.; Van Metre, P.C.; Crane, J.L.; Watts, A.W.; Scoggins, M.; Williams, E.S., "Coal -tarbased pavement sealcoat and PAHs: Implications for the environment, human health, and stormwater management," 46(6) Environ. Sci. & Technol. 3039, 3043( 2012).

[FN84] See id.

[FN85] Williams, E.S., Mahler, B.J.; Van Metre, P.C.; "Cancer Risk from Incidental Ingestion Exposures

to PAHs Associated with Coal

- Tar Sealed Pavement," 47 (2) Environ. Sci. & Technol. 1104 (2013).

[FN86] Minnesota Pollution C ontrol Agency, Contamination of Stormwater Pond Sediments by Polycyclic Aromatic Hydrocarbons (PAHs) in Minnesota (2010), available at: http://www.leg.state.mn.us/docs/2010/other/100587.pdf

[FN87] Christopher M. Teaf, "Polycyclic Aromatic Hydrocarbons (P AHs) in Urban Soil: A Florida Risk Assessment Perspective," 1 International Journal of Soil, Sediment and Water, Article 2, at 5, http://scholarworks.umass.edu/intljssw/vol1/iss2/2 (2008).

[FN88] Id., at 11.

[FN89] Id. at 9.

[FN90] Id.

[FN91] See Barbara J. Mahler, Peter C. Van Metre, Thomas J. Bashara, Jennifer T. Wilson, and David A. Johns, "Parking Lot Sealcoat: An Unrecognized Source of Urban Polycyclic Aromatic Hydrocarbons," 39 Envtl. Sci. Tech. 5560, 5563 (2005).

[FN92] See 40 C.F.R. § 122. 44(a).

[FN93] See 40 C.F.R. §122.44(d)(1)(iii).

[FN94] See Pamela J. Bryer, Jan N. Elliott and Emily J. Willingham, "The Effects of Coal Tar Based Pavement Sealer on Amphibian Development and Metamorphosis," 15 Ecotoxicology 241, 245 (2006)2015 EPA MSGP Response to Comments June 4, 2015

75 (developmen tal impairments in frogs).

[FN95] See M. Scoggins, N.L. McClintock, L. Gosselink, and P. Bryer, "Occurrence of polycyclic aromatic hydrocarbons below coal -tar- sealed parking lots and effects on stream benthic macroinvertebrate communities," 26 J. N. Am. Benthological Soc'y 694, 703 (2007); Pamela J. Bryer, Mateo Scoggins, Nancy L. McClintock, "Coal

- tar based pavement sealant toxicity to freshwater macroinvertebrates," 158 Envtl. Pollution 1932, 1935

- 36 (2010).

[FN96] See Peter C. Van Metre, Barbara J. Mahler and Jennifer T. Wilson, "PAHs Underfoot:

Contaminated Dust from Coal

- Tar Sealcoated Pavement is Widespread in the United States," 43 Envtl. Sci. Tech. 20, 22

- 23 (2009).

[FN97] See 40 C.F.R. § 122.26(b)(14).

[FN98] EPA, "National Pollutant Discharge Elimination System - Regul ations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges," 64 Fed. Reg. 68,722, 68,783 (Dec. 8, 1999).

[FN99] See 40 C.F.R. 122.26(a)(9).

Response EPA acknowledges the potential adverse impacts to water quality from coal tar sealants. An EPA fact
sheet from November 2012 entitled “ Coal- Tar Sealcoat, Polycyclic Aromatic Hydrocarbons, and

Stormwater Pollution” details the potential issues with these sealants.

At this time, EPA declines to include an effluent limit in the MSGP prohibiting the use of coal tar sealants by operators under the permit. EPA does not have any data on the prevalence of coal tar sealcoat use at facilities covered under the MSGP, nor any data about potential water quality standards exceedances

at tributable to its use. EPA is aware that in certain parts of the country, it is common for coal tar sealants to be used in parking lots (see the USGS’ website http://tx.usgs.gov/sealcoat.html). However, stormwater discharges from parking lots are not included in the definition of “industrial activity” that are regulated under EPA’s industrial stormwater program. As a result, to include such a limit in this permit on a technology basis would go beyond the best available technology economically achievable. With respect to water quality, in the event that coal tar sealcoat use in industrial areas of a facility covered under the MSGP is found to cause or contribute to an exceedance of a water quality standards, the operator must take additional control measures to control its discharges such that they meet WQS. If it does not, EPA may require the operator to undertake such additional control measures in order to meet the permit’s water quality

- based effluent limit, or require coverage under an individual permit.

EPA also declines to modify Part 1.1.3 of the MSGP to prohibit the discharge of non

- stormwater wash waters from coal tar sealed parking lots because EPA does not have the authority under its current industrial stormwater program to regulate such discharg es from parking lots at industrial facilities (because, as mentioned above, they are not included under the definition of “industrial stormwater” and thus not covered under this permit).

Comment ID 0085.001.036 Issue Category: 1.0

Author Name: Zachary Griefen et al. General MSGP Comments

Organization: Conservation Law Foundation et al.

5. Break the very large class/category of "discharges of stormwater associated with industrial activities"2015 EPA MSGP Response to Comments June 4, 2015

76 into smaller groups within the MSGP and begin setting BAT effluent limits for these smaller groups

Response The MSGP has 29 sectors, which were broken out from 10 categories of industrial stormwater in EPA’s NPDES regulations. Most sectors have multiple subsectors, further sub

- grouping like discharges, essentially doing what the commenters suggest. The even further breakdown of subsectors beyond what is already in the permit would decrease the efficiency of covering such a broad category of dischargers

u nder one permit.

Comment ID 0085.001.059 Issue Category: 1.0

Author Name: Zachary Griefen et al. General MSGP Comments

Organization: Conservation Law Foundation et al.

30. Use EPA's residual designation authority to extend a ban on the use of coal tar sealants to all paved surfaces at industrial sites;

31. Evaluate the impact of PAHs discharged from coal tar sealed pavements at industrial facilities in the

Connecticut River and in listed sturgeon habitats throughout the eastern United States;

Response See response to Comment ID 0085.001.027. EPA notes that the commenter’s request to use EPA’s residual designation authority and the commenter’s request for a study of c oal- tar sealant impacts in the eastern U.S. is outside the scope of this re

- issuance of the MSGP.

Comment ID 0085.001.062 Issue Category: 1.0

Author Name: Zachary Griefen et al. General MSGP Comments

Organization: Conservation Law Foundation et al.

34. Include a reference to the UIC program and the possibility that infiltration devices may be regulated as Class V wells in the general permit, and in the online eNOI submission process;

Response EPA agrees and has included references to both topics in the Fact Sheet.

Comment ID 0085.001.065 Issue Category: 1.0

Author Name: Zachary Griefen et al. General MSGP Comments

Organization: Conservation Law Foundation et al.

For the above

- stated reasons, Conservation Law Foundation, Waterkeeper Alliance, Natural Resources Defense Council, Our Children's Earth Foundation, and Ecological Rights Foundation oppose approval of the proposed 2013 MSGP as drafted. All of the above organizations urge EPA to address the many shortcomings of the proposed permit and to issue a revised draft as soon as practicable. We particularly urge EPA to address the permit's major legal defects by adding provisions that will ensure legally

required pub lic involvement and public access to information; compliance with water quality standards; safeguards against discharges into impaired waters; and bolstered monitoring and reporting requirements.

Response2015 EPA MSGP Response to Comments June 4, 2015

77 EPA has incorporated some of the commenters’ concerns and explained why it has not incorporated others or that they are outside the scope of this action.

Comment ID 0087.001.001 Issue Category: 1.0

Author Name: Kathleen Martin General MSGP Comments

Organization: Alcoa Inc.

Alcoa Inc. is pleased to submit the following comments on the proposed rule for Multi

- Sector General Permit (MSGP) for a number of reasons. As some of the draft and proposed NPDES permits have been issued, many of the same applications from the MSGP have b een proposed into individual permits, almost verbatim. Therefore it is easy to infer that many states will adopt similar language from the MSGP in site specific permits. So these comments are presented as though the states will adopt MSGP and place them

in their entirety into individual NPDES permits.

In general, Alcoa believes that the draft MSGP includes overly prescriptive language that is better suited to guidance. Much of this language suggests a "one size fits all" approach where the measures that a re selected to control stormwater discharges should be site specific and based on the Stormwater Pollution Prevention Plan (SWPPP). In addition, Alcoa disagrees with the proposed requirement to make SWPPP' s available to the public through posting on a URL site. And, Alcoa supports elimination of the benchmarks and disagrees with the use of numeric effluent limits for stormwater.

Response

The MSGP provides considerable flexibility to permittees in selecting the control measures used to meet the permit’s technology- based and water quality

- based effluent limits, and EPA recognizes that the control measures needed to adequately minimize pollutants will vary considerably for each facility. EPA sometimes proffers control technologies or best management practices that it considers BAT/BCT as examples that could meet the narrative permit limits, using its best professional judgement. Operators are

free to select their own site

- specific controls, as long as such controls meet the permit’s effluent limits, so the p ermit is not “one

- size -fits- all”, as commenter states.

The reason and benefits of SWPPP posting online are explained in response to Comment ID

0072.001.001.

Regarding the comment on the elimination of benchmark monitoring, see the monitoring response to comment essay. Numeric effluent limits for use in general stormwater permits is not contemplated at this time outside of already promulgated effluent limitation guidelines applicable to only a small subset of

sectors.

Comment ID 0088.001.001 Issue Category: 1.0

Author Name: Justin Hayes General MSGP Comments

Organization: Idaho Conservation League

The issuance of the draft MSGP was not accompanied by a draft 401 certification from the Idaho Department of Environmental Quality. As such we are not able to effectively review and evaluate the sufficiency of the draft MSGP to protect water quality in the State of Idaho. For instance, it is unclear to us if discharges will be allowed to utilize mixing zones. Additionally, it is unclear how antidegradation reviews will be conducted on these discharges. Without the draft 401 certain accompanying this draft o f the MSGP we are unable to provide meaningful comment.2015 EPA MSGP Response to Comments June 4, 2015

78 As a result, we ask that the EPA extend the comment period on the MSGP until such time that Idaho is able to provide a draft 401 cert for public comment.

If the EPA is not in a position to extend this comment period, we ask the EPA make it clear that no mixing zones will be allowed for dischargers utilizing the MSGP and that each discharge applying for coverage under the MSGP must conduct an antideg review specific to each unique discharge prior to being authorized.

Response Regarding the 401 certification comment, EPA notes that 401 certifications are only requested after the permit is proposed. As such, 401 certifications were not available to the Agency at the time the MSGP was proposed. Once drafted, the State of Idaho will make its 401 certification available for public comment, and the commenter can submit its comments to the State at that time. When the State submits its 401 certification to EPA, that certification will become part of the f inal MSGP as it applies in that

State.

Regarding the comment on mixing zones, see the monitoring response to comment essay.

Comment ID 0089.001.012 Issue Category: 1.0

Author Name: Kerry Kelly and Chuck White General MSGP Comments

Organization: Waste Management (WM)

NEPA Review

Previous versions of the MSGP required those facilities constructed after the promulgation of their industry's New Source Performance Standards (NSPS) to determine and document in their SWPPP either "No Significant Impact" under the National Environmental Policy Act (NEPA), or to complete an Environmental Impact Statement in accordance with an environmental review conducted by EPA. The new MSGP proposes to eliminate those requirements. Instead, EPA intends to address NEPA compliance when it finally issues the permit. Specifically, for the proposed 2013 MSGP, EPA plans to prepare an Environmental Assessment to analyze the potential environmental impacts of the permit. Therefore, under the proposed 2013 MSGP, industrial discharges subject to NSPS do not have t o make such a determination independently. WM supports this proposed clarification that significantly reduces regulatory burden.

Response EPA notes the commenter’s support for the NEPA analysis.

Comment ID 0092.001.001 Issue Category: 1.0

Author Name: Jeffrey Longsworth General MSGP Comments

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

While the MSGP may be limited in its geographic scope, it is very important because it serves as the model for most state permits and provides the most expedient explanation for EPA's "industrial stormwater permitting strategy." Even for states that claim otherwise, the MSGP is the single most important industrial stormwater permitting document nationally, and most states rely upon EPA's MSGP and accompanying Fact Sheet explanations for determining the directions of their own authorized stormwater general permit programs.2015 EPA MSGP Response to Comments June 4, 2015

79 Hence, EPA should recognize the importance for ensuring the MSGP is clearlycrafted and fully within the scope of CWA Section 402(p)(2)(B) (requiring NPDES permits for stormwater pollutant discharges "associated with industrial activity") not only to ensure appropriate NPDES permit coverage in areas in which it is the permitting authority, but also because the authorized states have consistently relied upon EPA's MSGP as the model or guide to appropriate industrial stormwater permitting app roaches.

In comments to EPA's draft MSGP 2013 Part 1, FSWA raises issues and concerns with EPA's attempt to restrict the "Permit Shield" provisions of the Clean Water Act (Section 402(k)). In fact, EPA may be improperly restricting the MSGP permit covera ge for legitimate discharges of stormwater associated with industrial activity. FSWA also comments on EPA's "New Discharger" proposed requirements, particularly with regard to compliance with water quality standards, an issue addressed more comprehensively later in these comments.

Response See response to comments 0094.001.004 and 0066.001.004.

Comment ID 0093.001.005 Issue Category: 1.0

Author Name: Amanda Aspatore General MSGP Comments

Organization: National Mining Association (NMA)

•The proposed deadlines for ensuring uninterrupted coverage under the new permit may be unworkable in

some instances.

KEY COMMENTS

As a general matter, NMA is interested in learning why many of the proposed changes in the MSGP are necessary. It is uncl ear from the proposal itself, as well as the supplementary information contained in the docket, why EPA has made certain changes. NMA looks forward to meeting with EPA to both gain a better understanding of what specific concerns EPA is attempting to address with its proposed changes, and to discuss further the changes that affect the mining industry.

Response See response to mining comments essay.

Comment ID 0095.001.001 Issue Category: 1.0

Author Name: Gary Passmore General MSGP Comments

Organization: The Confederated Tribes of the Colville Reservation

We have reviewed and hereby certify that the above

- named permit does not conflict with or violate any provisions of the water quality standards of the Confederated Tribes of the Colville Reservation published

in 40CFR131 and Section 4

- 8 of the Colville Tri bal Code.

Response EPA acknowledges the certification.2015 EPA MSGP Response to Comments June 4, 2015

80 

### Issue Category: Section 1.1

- Permit Eligibility

Comment ID 0029.001.001 Issue Category: 1.1

Author Name: Kim Cox Permit Eligibility

Organization: City of Portland Environmental Services

BES would like EPA to consider the following modifications for the MGP:

1. CSO exemption. The City of Portland is one of many local jurisdictions with certain drainage areas managed by combined sewer systems. The current and proposed language of the MGP does not clearly address applicability for industrial dischargers to combined sewer systems. We believe that such dischargers should be exempted from industrial NPDES stormwater discharge permits for the following

reasons:

a. Some industrial dischargers to combined sewer systems may already be regulated by pretreatment programs associated with the receiving POTW;

b. Oregon and some other states have already addressed this issue because of confusion about applicability. Oregon currently exempts industria l and construction dischargers to combined sewer systems from NPDES stormwater discharge permit requirements. We suggest EPA make a clear statement in section 1.1.4 regarding applicability for industrial dischargers to combined sewer systems. We suggest exemption from permit applicability for these dischargers.

2. "Pavement washing" as an allowable non

- stormwater discharge. The current EPA proposal adds pavement and building washing to the list of allowable and permit covered non

- stormwater discharges.

The permit and fact sheet both stipulate, that such discharges must not "come into contact with oil and grease deposits". Because of the nature of oil and grease build up in automotive parking lot and storage areas, pavement washing from these sites seems unlikely to meet this stipulation. At a minimum, we request EPA clarify that "parking lot" areas are not part of the pavement washing allowance.

Response

Industrial stormwater regulations, and thus permit requirements, do not apply to combined sewer system discharges (see 122.26(a)(7)). EPA has addressed this issue in a Q&A document (see http://www.epa.gov/npdes/pubs/owm0114.pdf ).

Allowed non

- stormwater discharges in all versions of the MSGP have included pavement and building washwater. EPA has clarified in this permit that to be authorized, such discharges must be sufficiently pollutant free so there are no exceedances of water quality standards. Part 1.1.3.1 states that no detergents or hazardous cleaning products are to be used and that the wash waters must not come into contact with oil and grease deposits, sources of pollutants associated with industrial activities, or any other toxic or hazardous materials, unless residues are first cleaned up using dry clean

- up methods, and appropriate control measures to minimize discharges of mobilized solids and other pollutants have been implemented.

Non- industrial parking areas (e.g., employee parking lots) that do not have commingled runoff from the industrial areas are not subject to the MSGP, and pavement washing from these areas would likewise not need permitting. Such discharges would only be regulated under an MS4 permit, if applicab le.

Comment ID 0029.001.011 Issue Category: 1.1

Author Name: Kim Cox Permit Eligibility2015 EPA MSGP Response to Comments June 4, 2015

81 Organization: City of Portland Environmental Services

On page 6 of the Permit Fact Sheet (PFS), EPA encourages facility operators to direct wastewater flows into their green infrastructure features to "cleanse" the washwater related flows for discharge or to use

infiltration to minimize washwater flows. While this conversation is limited to the non -stormwater discussion, the wording is overly broad and should be reworded to acknowledge the limited context of the discussion to pavement and building washing. Also all such facilities should be appropriately sized for such flows and required to have operation and maintenance plans.

Response The Fact Sheet clearly states that the treatment options are for pavement and building wash waters, and discusses the vitality of an operation and maintenance plan.

Comment ID 0033.001.004 Issue Category: 1.1

Author Name: Eileen Sottile Permit Eligibility

Organization: LKQ Corporation

Requirement for pavement wash water discharges to be treated by control measures. LKQ GAD opposes this new measure, unless the limitations and discharge test will allow for industrial sites to demonstrate what comes from the facility and what comes from the surroundings. For example LKQ recycles automobiles. The surrounding streets and parking area of an automotive recycling facility are going to have a set number of metals and elements from normal automotive use. Companies like LKQ should only

be character ized for non

- compliance on the levels they ADD to these base levels. If the road next to an automotive recycler demonstrates a continued level of 0.1 ppm for copper, and the wash from the automotive recycler demonstrates a level of 0.11 ppm for copper, the n the recycler is only discharging water with 0.01 ppm copper

- not 0.11 ppm. Just because a recycler is dealing with a common use item such as an automobile, this does not mean that it should be regulated for all automotive use.

Response

See monitoring response to comment essay.

Comment ID 0037.001.001 Issue Category: 1.1

Author Name: Michael McIntyre Permit Eligibility

Organization: Idaho Department of Environmental Quality

Page 6 1.1.4.8 Eligibility for New Dischargers to Water

- Quality Impaired Waters. It is not clear which "Regional Office" EPA is referring to; the language should be changed to state, "You are eligible under Part 1.1.4.8.c if you receive an affirmative determination from the EPA Regional Office that your discharge will meet applicable water quality standards, in which case you must maintain such determination onsite with your SWPPP, or if the EPA Regional Office fails to respond within 30 days of submission of data to the EPA Regional Office [emphasis added].

DEQ is requesting that the last part of the previous paragraph (highlighted above) be stricken from the permit. DEQ does not believe an applicant who is proposing to discharge to an impaired water body

should be deemed to be meeting water quality standards simply because EPA fails to respond within 30 days.2015 EPA MSGP Response to Comments June 4, 2015

82 Page 7 1.1.4.9 Eligibility of New Dischargers to Waters with High Quality. Idaho does not have a static list of impaired and/or high

- quality waters to i nclude in Appendix L; this should be made clear in the permit. Additionally, it should be noted that a water body can be both impaired (Tier 1) and high

- quality (Tier 2), because antidegradation policies deal with different uses: aquatic life and contact r ecreation. This issue has caused confusion for some in submitting their NOI for coverage under EPA's Construction Stormwater General Permit. Thus, Region 10 should work with DEQ to get the appropriate information into the permit pertaining to the support status of Idaho waters for submission of NOIs.

Eligibility is available only if a new discharge will not lower water quality of the applicable water. "Lower water quality", however, is not defined, and may vary depending upon how this term is defined in

a particular state's Water Quality Standards. Because there are state

- specific definitions of lower water quality, states should be involved in determining whether a new discharge to a high quality water body is eligible for coverage.

The condition that a new discharger to a high quality water body is only eligible for coverage if the discharge will not lower water quality must also be applicable to an existing discharger to a high quality water body who expands or increases its discharge.

Response

EPA has edited Part 1.1.4.8 to clarify that the eligibility determination is from the EPA Regional Office.

Regarding the 30

- day timeframe for contacting new impaired waters dischargers, EPA plans to respond to such operators in a timely fashion. However, the realities of permitting and the need to be responsive to other agencies compel EPA to include certain tools for facilities seeking coverage so there is no indeterminate “limbo” in which operators are unable to move forward with their industrial activities

. Therefore, EPA has included a self

- imposed 30

- day response time limit for responding to new facilities. If EPA needs more information or time to make a determination, it can take such time as long this is communicated to the operator within the 30

- day pe riod.

Regarding the applicability of the eligibility requirements for discharges to waters with high water quality in Idaho, EPA has included in Appendix L (List of Tier 3, Tier 2, and Tier 2.5 Waters) the following: For Tier 2 and Tier 3 waters, please consult the Idaho Integrated Report, available at: http://www.deq.idaho.gov/water-quality/surface-water/monitoring-assessment/integrated-report.aspx and the closest regional office of the Idaho Department of Environmental Quality: http://www.deq.idaho.gov/regional-offices-issues.aspx

.

For determinations of what are appropriate permit requirements to protect a state’s water quality standards, EPA relies on the state’s 401 certifications in addition to the across -the- board WQBEL in the general permit itself.

Comment ID 0040.001.003 Issue Category: 1.1

Author Name: Kevin Walgenbach Permit Eligibility

Organization: National Ready Mixed Concrete Association (NRMCA)

3. Allowable Non

- Stormwater Discharges

- At this time NRMCA withholds comments on this section.

Response No response necessary.2015 EPA MSGP Response to Comments June 4, 2015

83 Comment ID 0042.001.001 Issue Category: 1.1

Author Name: Joshua Rodriguez Permit Eligibility

Organization: District Department of the Environment

Part 1.1.3 Allowable Non

- Stormwater Discharges.

The term "uncontaminated" is not clearly defined and allows for a broad interpretation of its meaning. Groundwater may contain concentrations of pollutants below groundwater quality standards, but still considered "contaminated." Additionally, concentratio ns of pollutants may meet groundwater quality standards (source of discharge), but not meet surface water quality standards (destination of discharge.) In this case, how will the quality of groundwater be addressed, "uncontaminated" or "contaminated" DDOE recommends the term "uncontaminated" be clearly defined and what criteria should be used to evaluate

this determination.

Response The definition of “uncontaminated discharge” has been added in Appendix A: “a discharge that does not cause or contribute to an exceedance of applicable water quality standards.”

Comment ID 0059.001.003 Issue Category: 1.1

Author Name: Donald Schregardus Permit Eligibility

Organization: Department of Defense, Department of the Navy

3. Eligibility for New Dischargers to Water

- Quality Impaired Waters

Proposed Requirement or Section Addressed: 1.1.4.8. a.

Comment: To be eligible for coverage under this permit as a new discharger, one option is to "prevent all exposure to stormwater of the pollutants(s) for which the waterbody is impaired, and retain documentation of procedures taken to prevent exposure onsite with your SWPPP."

Discussion: The above requirement is practicable for some facilities where, for example, raw materials

coul d be moved indoors or covered. It is not practicable, however, for a likely common situation when the pollutant is not related to the industrial process for which the facility is seeking MSGP permit coverage.

Recommendation: Recommend changing paragraph "a" to: "Prevent exposure to stormwater of discharge related to the new process at your facility that may contribute pollutants(s) for which the water body is impaired. Retain documentation of procedures taken to prevent exposure onsite with your SWPPP."

Response EPA disagrees with the recommendation. A facility’s discharges are the facility’s responsibility regardless of the origin of the pollutants it discharges. See the monitoring response to comment essay

. There are other options for becoming eligibl e under Part 1.1.4.8 if a facility is not able to meet the criteria

for 1.1.4.8.a. See Part 1.1.4.8.

Comment ID 0063.001.003 Issue Category: 1.1

Author Name: Paul Nazaryk Permit Eligibility

Organization: BHP Billiton New Mexico Coal2015 EPA MSGP Response to Comments June 4, 2015

84 The proposed MSGP clarifies at § 1.1.4.3 that mine exploration and construction activities conducted in conjunction with mining are not required to obtain a separate storm water construction general permit (CGP). It is our understanding that the purpose was to eliminate the need for multiple storm water permits covering the same mine property.

Response The commenter’s understanding is consistent with EPA’s intent. See also the mining response to
comment essay.

Comment ID 0064.001.009 Issue Category: 1. 1

Author Name: Katie Kistler Permit Eligibility

Organization: AK Steel Corporation

Sections 1.1.4.5. and 1.1.4.6

- Endangered and Threatened Species and Critical Habitat Protection and Historic Properties Preservation

AK Steel believes that these new requirements create an unnecessary burden to the discharger. To the extent that these reviews are required by law or regulation, the reviews should be conducted by the individual state departments of natural resources or other government agencies.

Response EPA, as the agency performing the action (permit issuance) for which endangered species and historic properties consultations are required, must conduct the consultations with the other appropriate agencies.

This cannot be delegated to other parties as the commenter suggests. EPA also notes that the eligibility requirements under Parts 1.1.4.5 and 1.1.4.6 that permittees must follow are not consultations. These are procedures that EPA has determined to be appropriate to ensure the protection of threatened and endangered species and historic properties as a result of activities covered under the permit. These procedures were developed through EPA’s consultations with the Services and with the Advisory Council

on Historic P reservation.

Comment ID 0066.001.004 Issue Category: 1.1

Author Name: Timothy Carlstedt Permit Eligibility

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 1.1.4.7 Eligibility for New Dischargers Based on Water Quality Standards

The 2013 MSGP precludes eligibility for new dischargers whose discharges EPA determines will not meet applicable water quality standards (WQS). UWAG suggests that this proposed eligibility criterion is unworkable. It is not at all clear how a discharger can certify eligibility in his or her NOI (as required in Part 1.2.1.1) if it is EPA who will determine that the discharger is not eligible (i.e., not meeting applicable WQS). Also, since EPA expects that compliance with the conditions of the permit will control discharges as necessary to meet applicable WQS (see Part 2.2.1), meeting WQS (or WQBELs as discussed below) should not be an eligibility criterion.

More fundamentally, the suggestion here that a discharge must meet WQS is inaccurate. A discharger may be required to meet effluent limitations based on protecting WQS (i.e., water quality

- based effluent limitations or "WQBELs"), but compliance with WQS is determined in the waterbody itself, not at point2015 EPA MSGP Response to Comments June 4, 2015

85 source outfalls. As acknowledged by EPA: "Water quality standards apply throughout the waterbody (or segment of a waterbody) as defined by the state, territory, or tribe" whereas "effluent limitations apply at the compliance point established in the permit (generally "end of pipe")." See EPA's Web Page "WQBELs Part III

- Determine the Need for WQBELs," Presentation at p. 2, at http://cfpub.epa.gov/npdes/outreach/training/wqbel3.cfm (emphasis in original). Moreover, a discharger is required to meet WQBELs only when his or her discharge will cause or reasonably has the potential to cause or contribute to an excursion above applicable WQS.

Thus, it is inappropriate for EPA to condition coverage under the 2013 MSGP on a discharger's meeting applicable WQS. EPA should revise the eligibility criterion to provide that a new discharger is ineligible for coverage only if he or she knows or has reason to believe his or her discharge will cause or contribute to an excursion (or exceedance) o f applicable WQS.

As discussed below, this same flaw runs throughout several provisions of the 2013 MSGP and should be revised before the final permit is adopted.

Response Part 1.1.4.7 is new to the MSGP. There was no comparable provision in the 2008 permit. This eligibility provision clarifies that coverage under the MSGP is not available to new dischargers or new sources where EPA has information that the proposed discharge may not meet water quality standards. This provision puts the burden on EPA to identify water quality

- based problems with the proposed discharge prior to authorization, and thus EPA disagrees that 1.1.4.7 is unworkable for the permittee. EPA has deleted the proposed language that refers to an expectation that compliance with the MSGP will result in compliance with water quality standards from Part 1.1.4.7 because it is unnecessary in the eligibility section and caused considerable confusion. While EPA maintains that compliance with the permit will result in discharges that meet water quality standards, EPA recognizes that there may be information that necessitates additional measures to ensure that discharges meet water quality standards. Thus, the water quality- based effluent limit in Part 2.2.1 of the MSGP states: “EPA may also require that you undertake additional control measures (to meet the narrative water quality

- based effluent limit above) on a site

specific basis... if information... indicates that your discharges are not controlled as necessary to meet applicable water quality s tandards.”

Part 1.1.4.7 of the 2015 MSGP is consistent with the first sentence in 40 CFR Part 122.4(i), which states that EPA may not issue a permit to a new source or new discharger that will cause or contribute to a violation of water quality standards. It applies whether or not the receiving water is impaired. (If a new discharge is to impaired waters, additional requirements apply. See Part 1.1.4.8 of the permit.) Under the 2015 MSGP, Part 1.1.4.7 only excludes new dischargers or new sources that have been notified by the permitting authority (i.e., EPA), prior to authorization, that their proposed discharge is not expected to meet WQS. Even in this case, eligibility for MSGP coverage may be still be established if the new discharger or new source, prior to authori zation, has included appropriate measures in its SWPPP that are designed for the discharge to meet WQS. If the applicant has not been notified by EPA, or otherwise has no reason to believe that its discharge will cause or contribute to an exceedance of WQS, it can assume eligibility under Part 1.1.4.7. If the information on the NOI or from other sources available to EPA suggests that more stringent controls are necessary, EPA will either direct the applicant to submit an application for an individual permit, or authorize coverage under the MSGP if the applicant institutes additional measures that provide for attainment of WQS.

In response to the many comments that waterbodies must meet water quality standards, and not the discharge, EPA has added language to Part 1.1.4.7 clarifying that meeting water quality standards means the discharge “will not cause or contribute to a violation of water quality standards.” EPA declines to detail what factors, such as mixing zones, may be considered in determining whether water quality2015 EPA MSGP Response to Comments June 4, 2015

86 standards have been attained, except to note generally that discharges to impaired waters should not exceed the water quality criterion for any impairing pollutant at the point of discharge because presumably there would be no mixing zone for that pollutant (since the water is already impaired). Impairment generally means there is no assimilative capacity in the receiving water. EPA regulations prohibit dilution as a valid control measure to meet water quality standards unless the circumsta nces in 40 CFR Part 125.3(f) have been met on a case -by- case basis. See also the monitoring response to comment

essay.

The clarifying language added to Part 1.1.4.7 discussed above (i.e., that EPA considers a discharge to meet applicable water quality standards when the discharge will not cause or contribute to an exceedance of a water quality standard) is consistent with the commenter’s position that WQBELS only apply when the discharge causes, or has the reasonable potential to cause, or contribute to an excursion above an applicable state water quality standard (“reasonable potential”). Indeed, the WQBEL in Part 2.2.1 of the MSGP states that “Your discharge must be controlled as necessary to meet applicable water quality standards (i.e., your discharge must not cause or contribute to an exceedance of applicable water quality standards in any affected state).”

As with the 2008 permit, EPA has made a general determination that the discharges potentially covered by this permit, as a class, have the reasonable potential to cause or contribute to an excursion above state water quality standards. For this reason, Part 2.2 establishes a WQBEL that requires controls on discharges as stringent as necessary to meet WQS (clarified in the final permit to mean that a discharge must not cause or contribute to a violation of water quality standards). EPA’s approach to water quality

based requirements in this permit balances the need to ensure the permit includes limitations that are “as stringent as necessary to meet wa ter quality standards” as required by CWA Section 301(b)(1)(C) with the convenience for permittees (and administrative necessity for EPA) that a general permit provides for establishing permit coverage for a large number of discharges. If a discharger desires a site -specific determination of reasonable potential and/or site specification calculation of numerical water quality

based effluent limitations, it can submit an application for an individual permit.

EPA also notes that a very similar provision to Part 1.1.4.7 was included in the 2012 CGP, which is a comparable permit in that it authorizes new source discharges in a general permitting framework.

Comment Part 1.1.4.8 Eligibility for New Dischargers to Water

- Quality Impaired Waters

The 2013 MSGP would preclude eligibility for new dischargers to discharge to an impaired waterbody unless he or she met one of three conditions. UWAG suggests all three conditions have flaws.

The first condition is that the new discharger prevent all exposure to stormwater of the pollutant(s) for which the water body is impaired. UWAG suggests that this condition is unduly restrictive. Exposure to a pollutant, especially a minimal exposure or a small amount of pollutant, does not necessarily equate to a discharge to a wat er of the U.S. that should be prohibited, even if the water body is impaired.

The second condition is similarly restrictive. Eligibility should not be preconditioned upon the relevant pollutants not being present at the discharger's facility. As noted above, a small amount of the pollutant present at the site may not present water quality issues in the receiving water, even if impaired.

The third condition

- that the new discharger's discharge will meet applicable WQS

- presents the same

issue discussed in the section above. A discharge may be required to meet relevant WQBELs, but not WQS. UWAG recommends that EPA revise this condition to provide that the new discharger must demonstrate that his or her discharge is not expected to cause or contribute to an exceedance of applicable2015 EPA MSGP Response to Comments June 4, 2015

87 WQS.

To meet the third condition, the 2013 MSGP goes on to provide that, for waterbodies without an EPA

approved or established TMDL, the discharger has to demonstrate that the discharge will meet applicable

"in

- stream water q uality criteria at the point of discharge to the waterbody." Again, this is the wrong point of compliance. As implied by the modifier "in

- stream," and as noted above, water quality criteria are relevant to waterbodies, not discharges to waterbodies. [FN6] Provided a discharger does not know or have reason to believe that his or her discharge will cause or contribute to an exceedance of a WQS, it

should be allowed under the 2013 MSGP.

Finally, the 2013 MSGP provides that, for waterbodies with an EPA -approv ed or established TMDL, which provides a wasteload allocation (WLA) for stormwater (or which has determined that stormwater is not a source of the impairment), the discharger has to demonstrate that there are sufficient remaining WLAs in the TMDL to allow for the discharge and that existing dischargers are subject to compliance schedules designed to bring the waterbody into attainment. UWAG takes exception to several of these points. First, if the TMDL has determined that stormwater is not a source of the impairment, the TMDL should not be relevant to the new discharger's discharge. Second, it is inequitable to preclude a new discharger from discharging into an impaired waterbody simply because existing dischargers are using all the existing WLAs. Especially where a new discharger has invested in advanced stormwater controls and will meet or exceed all relevant discharge standards, it is a disincentive to economic growth to preclude coverage to that discharger under the 2013 MSGP. Instead, existing WLAs should be equitably redistributed where a new discharger can establish it will meet relevant WQBELs. Finally, it should not be the new discharger's burden to establish that existing dischargers are subject to a compliance schedule, especially if there are avail able WLAs.

Consistent with the above points (and with these comments generally), UWAG recommends that EPA revise this section by deleting the first two conditions and revising the third condition as follows: (i) for impaired waterbodies with no TMDL, dis chargers should be allowed coverage unless they know or have reason to believe their discharge will cause or contribute to an exceedance of an applicable WQS; (ii) for impaired waterbodies with a TMDL, dischargers should be allowed coverage if their discha rge is consistent with the assumptions in the TMDL and/or implementation plan (e.g., the discharge meets the required concentration or mass

- based limits achieved by existing sources).

Response The requirement that new dischargers to impaired waters meet eligibility requirements is not new in the 2015 MSGP. Part 1.1.4.8 in the 2015 MSGP is substantially similar to Part 1.1.4.7 of the 2008 MSGP.

Part 1.1.4.8 only applies if the discharge is to a waterbody that is already impaired for the pollutant(s) of

co ncern. As a general matter, if the receiving waterbody has levels of pollutants that exceed the criteria for acceptable levels of pollutants in

- stream, there is no further assimilative capacity to accommodate a mixing zone for any discharger. In such cases, there is no difference in the number used to determine compliance for the discharge and for the stream. While it may appear that an instream WQS applies to the discharge, it is actually an end -of- pipe measurement derived from a WQS. For these reasons, th e perceived restrictiveness of Part 1.1.4.8 is appropriate. However, Part 1.1.4.8 provides several options for meeting the eligibility requirement and requires close coordination with the EPA Regional Office, and therefore, EPA expects that the vast majority of new dischargers and new sources will be determined eligible under Part 1.1.4.8.

With regard to the comment that EPA revise the condition in Part 1.1.4.8.c to provide that the new discharger must demonstrate that his or her discharge is not expected to cause or contribute to an exceedance of applicable WQS, EPA has added clarifying language that a discharge meets applicable2015 EPA MSGP Response to Comments June 4, 2015

88 water quality standards if the pollutants of concern will not be discharged at levels that will cause or contribute to an exceedance of a water quality standard. Thus, this comment is addressed.

With regard to the comment that water quality criteria are relevant to waterbodies, not discharges to waterbodies, EPA agrees. EPA has modified Part 1.1.4.8.c to state that the information to be submitted must demonstrate “that the discharge of the pollutant for which the water is impaired will meet water quality standards at the point of discharge to the waterbody,” (which as discussed above, is the appropriate point of compliance for discharges to impaired waters). EPA agrees with the commenter’s statement that “[p]rovided a discharger does not know or have reason to believe that his or her discharge will cause or contribute to an exceedance of a WQS, it should be allowed under the 2013 MS GP,” provided that the EPA Regional Office agrees in their eligibility review under Part 1.1.4.8.c.

EPA has revised Part 1.1.4.8 to drop the sentence concerning stormwater as a source of the impairment in

a TMDL because it created confusion. TMDLs are wr itten for pollutants and may or may not identify specific sources. New discharges that include the pollutant of concern can be allowed if there are remaining allocations in the TMDL (e.g., reserved allocations for new growth) that can be used by new

stormw ater discharges. The requirement implements the specific requirements of 40 CFR Part 122.4(i)(1). 122.4(i) applies to all new dischargers (and new sources), regardless of type. It would be possible that the new stormwater discharge does not have the impairing pollutant in its discharge, or there has been a determination that the necessary loading reductions will be achieved by sources other than stormwater discharges. In either case, the new discharger/new source would not be prevented from coverage under

t he MSGP.

EPA is not in a position here to redistribute existing WLAs to accommodate new discharges. States, in the first instance, establish TMDLs and determine how loading allocations are distributed. States may reserve allocations for new discharges as long as they can produce the necessary reductions through other point or

non- point sources. Unless a state has done so, EPA cannot issue a permit that will ensure compliance with water quality standards if it authorizes a discharge that is inconsistent wit h the assumptions and requirements of a TMDL. See 40 CFR Part 122.44(d)(1)(vii)(B).

Comment Part 1.1.4.9 Eligibility for New Dischargers to Waters with High Water Quality

This provision conditions eligibility on a new discharger being able to demonstrate that his or her discharge will not lower the quality of Tier 2 or Tier 2.5 waterbodies. As with eligibility for new dischargers based on WQS (see Part 1.1.4.7), UWAG suggests that it is inappropriate to base eligibility on this criterion. Since EPA expec ts that compliance with the stormwater control requirements of the permit will result in discharges that will not lower the water quality of the applicable water (see Part 2.2.3), new dischargers should not be precluded from obtaining coverage under the 2013 MSGP.

[FN6] As discussed below, this is why the federal regulations speak of discharges that may cause "excursions" of WQS and not "violations" of WQS. Water quality criteria may occasionally be exceeded even if the waterbody generally is attaining WQS. See Part 2.2 below.

Response This provision represents EPA’s determination, based on its experience and best professional judgment, of the best way to implement antidegradation requirements in the context of this general permit. Authorizing a new discharger or new source may lower water quality. The need for such a provision is that state/tribal water quality standards must include an antidegradation policy. In addition, each state/tribe must identify implementation methods for their policy that, at a minimum, provide a level of protection that is consistent with the three

- tiered approach of the Federal antidegradation regulation at 402015 EPA MSGP Response to Comments June 4, 2015

89 CFR 131.12. Tier 3 maintains and protects water quality in ONRWs. Waters classified as ONRWs by

states and tribes are generally the highest quality waters of the U.S. However, the ONRW classification also offers special protection for waters of exceptional ecological significance, i.e., those that are important, unique, or sensitive ecologically, but do not necessarily h ave high water quality. Except for certain temporary changes, water quality cannot be lowered in such waters. 40 CFR 131.12(a)(3). Because of their high quality or ecological significance, EPA expects few industrial stormwater discharges into ONRWs will be covered under an NPDES permit. For this reason, it is appropriate for EPA to condition the eligibility of the general permit to discharges that will not lower quality for high quality waters by making ineligible facilities discharging to Tier 3 waters. Additionally, to protect other high quality waters (i.e., Tier 2 and Tier 2.5 waters), it is reasonable to strengthen and clarify the anti

degradation provisions in the permit as a condition of permit eligibility to ensure that discharges eligible for the permit will be able to control their discharges as necessary to meet WQS. As a new source or discharger, EPA would have no a priori knowledge of the proposed facility nor its proposed discharges; therefore, it is incumbent on such new dischargers and new sources to know what the facility’s potential impacts on high

- quality waters could be prior to seeking MSGP authorization. As discussed earlier, EPA maintains that compliance with the permit will result in discharges that meet water quality standards. This assumption is predicated on ensuring that discharges that receive coverage under the permit do not lower the quality of high quality waters (as implemented through Part 1.1.4.9).

EPA also notes that nothing in the Clean Water Act or EPA regulations requires EPA to make the MSGP (or any general permit) available to any particular discharger. If a discharger finds the terms of the MSGP to be too burdensome or otherwise inappropriate for its facility, that operator is free to submit an individual permit applica tion.

Comment ID 0067.001.002 Issue Category: 1.1

Author Name: Timothy Pohle Permit Eligibility

Organization: Airlines for America (A4A)

Section 1.1.3

- Allowable Non

- Stormwater Discharges

- Pavement Wash Waters

Section 1.1.3 of the Draft Permit adds the following language to define pavement wash waters that may

be authorized under the MSGP.

"Pavement wash waters where no detergents or hazardous cleaning products are used (e.g., bleach, hydrofluoric acid, muriat ic acid, sodium hydroxide, nonylphenols), and the wash waters do not come into contact with oil and grease deposits or any other toxic or hazardous materials (unless cleaned up using dry

clean

- up methods). You are prohibited from directing any authorized pavement wash waters directly into any surface water or storm drain inlet unless you have implemented appropriate control measures that

meet the non

- numeric effluent limits in Part 2.1.2. Where appropriate control measures are not in place,

wash water runof f must first undergo treatment prior to discharge such as filtration, detention, or settlement;"

Initially, we believe it is important to be clear that, while washwaters themselves may not be discharged under the final MSGP except in compliance with this section, the discharge of subsequent storm runoff that may entrain residual quantities of the cleaning products used is properly authorized under the permit. This does no more than to recognize the distinction between "wash waters," which are flows created by the washing process during dry weather, and "stormwater," which is defined as the runoff from rainfall and snow melt that entrains pollutants. A4A believes that a simple clarification of this point is both possible and consistent with the Agency's purpose in drafting the language above.2015 EPA MSGP Response to Comments June 4, 2015

90 In addition, A4A recommends that EPA define a set of "dry cleanup methods" that it considers to be acceptable. These methods need not include all potentially acceptable dry cleanup options, but by providing at least the certainty that use of one or more enumerated methods will satisfy this section of the Draft Permit the Agency will afford the regulated community greater certainty and will enable regulated parties to better plan their cleanup efforts. Providing a safe harbor of acceptable dry cleanup methods is especially important in the Air Transportation sector, where pavement cleaning (e.g., of runways and taxiways) must be planned around the safe operation of commercial aircraft. A4A would welcome the opportunity t o work with the Agency to develop such a list of acceptable dry cleanup methods.

Finally, mandating treatment "such as filtration, detention, or settlement" for nonqualifying discharges is problematic both because it effectively establishes a Best Profes sional Judgment effluent limitation without support in the record and because it fails even to identify the treatment technique that is appropriate for every kind of "hazardous cleaning product." Here again, the failure to clearly state what those products are impairs the Agency's ability to develop a sufficient record on which to establish BPJ limitations (consistent with the dictates of 40 C.F.R. 125.3(d)) for their treatment.

Response

Non- allowed wash water is a wastewater and the permit specifically states that discharges of wastewater (other than the exclusive list of authorized non

- stormwater discharges at Part 1.1.3) are not authorized by the MSGP, and must be covered by a different NPDES permit. Regarding the comment that stormwater discharges containing residual cleaning products are authorized under the permit, EPA clarifies that such discharges can be discharged in compliance with the permit provided such discharges do not cause or contribute to an exceedance of a water quality standard. As such, EPA has included appropriate effluent limits applicable to vehicle and equipment cleaning areas at air transportation facilities in the permit (e.g., minimize the contamination of stormwater runoff from cleaning areas). In the BMP fact sheet series for air transportation facilities, EPA recommends controls such as the following to minimize the discharge of pollutants from cleaning activities in stormwater at air transportation facilities: do all cleaning at a centralized station so the solvents stay in one area; perform cleaning operations indoors or under cover when possible; collect stormwater runoff from cleaning areas and provide treatment or recycling; discharge wash or rinse water to the sanitary sewer, wastewater treatment, or a land application site (do not discharge to storm drain or surface water); etc. Through these types of controls, residual cleaning products in stormwater discharges will be minimized to the extent necessary to ensure WQS are met. However, because the MSGP is a stormwater permit, the permit does not contain appropriate effluent limits to ensure that wash waters containing such solvents will not cause or contribute to water quality standards exceedances. For facilities that will discharge pavement wash waters containing such pollutants, a separate NPDES permit is necessary. EPA reminds the commenter that any discharges not expressly authorized in this permit cannot become authorized or shielded from liability under CWA section 402(k) by disclosure to EPA and/or state after issuance of this permit via any means, including the Notice of Intent (NOI) to be covered by the permit, the Stormwater Pollution Prevention Plan (SWPPP), or during an inspection.

Regarding dry cleanup methods, EPA has added examples to the permit. The examples include applying absorbent materials and sweeping, using hydrophobic mops/rags, etc.; however, any dry cleanup method is acceptable as long as the effluent limit is met and discharges do not cause or contribute to an exceedance of applicable water quality standards. The intent is to not be overly prescriptive and the Agency does not wish to limit permittees from employing state -of-the- art technologies.

Regarding the comment about the requirement to filter, detain, or settle pavement wash waters authorized under the permit that have come into contact with industrial pollutants, EPA has clarified the requirement that such discharges must be treated by “appropriate control measures to minimize discharges of2015 EPA MSGP Response to Comments June 4, 2015

91 mobilized solids and other pollutants.” The permit provides filtration, detention, and settlement as examples of appropriate controls. The permit only provides discharge control technologies that are already in use at facilities and does not specify that those specific controls must be implemented to meet the requirement, so there is no need to do a rigorous analysis to justify designating them as BPJ.

Comment ID 0069.001.001 Issue Category: 1.1

Author Name: Philip McNeely Permit Eligibil ity

Organization: City of Phoenix, Office of Environmental Programs

Part 1.1.1.4. Can further clarification be provided regarding the distinction between Table 1

- 1 stormwater discharges eligible under this permit and discharges to a POTW? Consider adding a statement in this part such as "If any of the discharges listed in Table 1

- 1 are to a POTW, they are not eligible for coverage under this permit and are subject to the point

- source category effluent limitations in 40 CFR Part 403 and any local pre

- treatment program requirements."

Part 1.1.3. In the fourth item in the li st, consider using alternate term "chiller" instead of "cooler", or specify that the term as used here only applies to refrigerated cooler systems that generate condensate. The term cooler is frequently used for small to medium size rooftop and window evap orative coolers, including residential

- type coolers. Although these do not generate any condensate per se, they also would not necessarily be classified as a "cooling tower"; therefore, for these types of coolers, it is not clear

whether the fourth item in the list or the last item in the list is most applicable.

Can a regulatory definition be provided or added to the Appendix for the terms "detergent or hazardous cleaning product" as used in the seventh and eight items in this list? Although there is a d efinition provided in the Appendix for "Hazardous Materials or Hazardous Substances or Hazardous or Toxic Waste", it does not include the terms "detergent or hazardous cleaning product". Also, it may be helpful to provide references to other regulatory definitions for these materials, such as "contains a hazardous chemical as defined by OSHA, any substance on the EPA Consolidated List of Lists, or any material classified by the DOT as a hazardous material or marine pollutant at 49 CFR 171.8, etc.) Given the recent proliferation of products that claim to be "biodegradable", "environmentally safe", "natural / plant -based" or "green", but which sometimes still contain potential pollutants, providing additional references could help permittees more objectively e valuate if a cleaning product or detergent is considered hazardous by referring to technical or safety data sheets.

Similarly, the term "toxic materials", used in the seventh item in this list, is not defined in the Appendix.

Part 1.1.4.8. For discharg es into an MS4 storm drain, are MSGP permittees obligated to make their own determination of what segment of a surface water body their runoff ultimately discharges? What steps would the permittee be expected to take if they request this information from the MS4 operator, but the operator cannot determine or provide the exact location of the MS4 outfall for the MSGP facility and the permittee has no other method to determine definitively if the discharge is "into an impaired water" (assuming there are both impaired and unimpaired surface waters in the vicinity)?

Response

Table 1

- 1 informs operators of certain industrial activities or sources that they have effluent limitation guideline or new source performance standards requirements. The scope of dischar ges authorized under the permit are clear. The first page of the permit specifies that “operators of stormwater discharges associated with industrial activity... are authorized to discharge to waters of the United States in accordance with the eligibility an d Notice of Intent (NOI) requirements, effluent limitations...” (emphasis2015 EPA MSGP Response to Comments June 4, 2015

92 added). Additionally, the permit clearly states that wastewater is not authorized for discharge by the permit (subject to exceptions at Part 1.1.3), whether the discharge is to an MS4 or directly to a water of the U.S. Thus, additional clarity with regard to Table 1

- 1 is unnecessary

EPA has included the word “chiller” in addition to “cooler”. The Agency notes that only non -stormwater from industrial activities or areas where industrial activities occur, or that commingles with runoff from such areas, needs to be addressed by permittees.

Regarding the request for definitions of “detergent or hazardous cleaning product” and "toxic materials", the examples of such disallowed substances i n Part 1.1.3.1, along with the definitions of “uncontaminated discharge” and “hazardous materials/substances” in Appendix A, are sufficient to allow permittees to decide what is acceptable to use for washing purposes. EPA agrees that packaging claims regar ding environmental safety are not a sufficient determinant of product suitability.

EPA has defined “toxic materials” consistent with “hazardous materials/substances” in Appendix A.

Part 1.1.4.8 has requirements for new dischargers, of which there are ty pically only about 50 per year under the MSGP. The permit requires new facilities to know the relevant information regarding their receiving waters prior to discharging as part of their due diligence. The MS4 operator the facility proposes to discharge to can provide the outfall information needed and on

- line mapping services can also be of use. Questions and issues may also be brought to the attention of the EPA Regional Office as well.

Comment ID 0071.001.005 Issue Category: 1.1

Author Name: Robert Barnes Permit Eligibility

Organization: Midas Gold Inc. (MGI)

4. Eligibility for New Discharges to Water

- Quality Impaired Waters

This proposal may not be technically achievable in an area of naturally high mineralization with resulting elevated metals concentrations. This is particularly the case when considering an "action area" involving

run- on from a highly mineralized zone or location. It is stated in the proposed permit that EPA will approve a new discharge only if it can be demonstrated that this discharge will meet water quality criteria prior to discharge. In the situation described above, it is likely both run

- on and run -off to and from an active area will not at times comply with water quality criteria, yet there will not be a measurable impact to the receiving water during these high flow events. In other portions of the permit (anti

- degradation and all other discharges) it is assumed that discharges will meet water quality standards with implementation of BMPs. EPA should make this same assumption with discharges to impaired waters.

Response

As discussed in Comment ID 0066.001.004, this eligibility provision is retained from the previous MSGP with minor modifications, and EPA has found the provision to be workable for permittees. Additionally, this provision is reasonable because EPA must implement 40 CFR 122.4(i) when it issues any permit. The

MSGP describes situations t hat are designed to implement 122.4(i) and provide some alternatives for new discharges to demonstrate that their discharges will not cause or contribute to an existing violation of water quality standards. New dischargers may submit any data or technical information to make this demonstration. The new discharger always has the option of submitting an application for an individual permit to better ensure that unique site

- specific factors are fully considered. The commenter must remember, EPA cannot include provisions in general permits nor generate appropriate guidance for all the potential scenarios that may arise with impaired waters discharging. EPA will employ its discretion and judgement in such cases or it may require a new discharger to apply for an i ndividual permit if such2015 EPA MSGP Response to Comments June 4, 2015

93 discharger cannot meet the eligibility requirements of the general permit.

Comment ID 0072.001.002 Issue Category: 1.1

Author Name: Leah Pilconis Permit Eligibility

Organization: The Associated General Contractors of America (AGC of America)

There are various situations in which a general contractor may be subject to the requirements of both EPA's MSGP and EPA's CGP. Recognizing that EPA's NPDES stormwater permits set the standard for general permits issued by authorized states, AGC members no te that the terms and conditions of EPA's industrial and construction permit programs dictate how many general contractors must manage their stormwater runoff across the entire nation; not just in the states and territories where EPA administers the

NPDES permit program. For this reason, AGC members are interested in, and affected by, the relationship between EPA's MSGP and EPA's CGP.

Specifically, many general contracting firms rely on coverage under EPA's MSGP, or a comparable state

issued general permi t, to authorize the discharge of stormwater from their "industrial activities." For example, many construction companies operate "active" or "inactive" materials source sites

- including quarries, borrow pits and sand/gravel pits, as well as their associated materials processing operations - that are not covered by a CGP. These companies must secure coverage under an industrial stormwater permit. [FN2] Similarly, construction companies that operate active mining, concrete

- and asphalt -batching locations must be covered by an industrial stormwater permit if they are not covered by a CGP. [FN3]

For these same construction companies, coverage under a separate NPDES general permit

- either EPA's CGP or a comparable state

- issued one

- also is required to authorize th e discharge of stormwater from their

"construction activities" that disturb one acre or more of land.

Also, EPA must consider situations where construction that disturbs greater than one acre (and triggers the need for CGP coverage) is taking place at an industrial property that is already covered by the MSGP,

which results in "double

- regulated" discharges. More specifically, construction firms are hired by the owner/operator of industrial operations (those facilities that fall within one of EPA's 29 "sec tors" of industrial activity [FN4]) whenever there is a need to perform construction operations at the facility location (e.g., upgrades, maintenance, expansion, etc.). Under this scenario, the construction firm is the permittee under the CGP and that firm is also bound by the terms and conditions of the MSGP, per its contractual relationship with the owner of the industrial site (e.g., power plant).

Because of the many situations where a general contracting firm may be subject to the requirements of

both EPA's MSGP and EPA's CGP, AGC members are uniquely burdened by inconsistencies in stormwater pollution prevention measures and standards applicable to active construction sites versus industrial operations (whether they be related to off

- site operations o r unrelated facilities at which construction occurs).

[FN2] See e.g., "Memorandum: Applicability of 2008 MSGP to Gravel Pits Associated with Road and Bridge Construction and Maintenance" at http://www.epa.gov/npdes/pubs/msgp2008_sand&gravel.pdf.

[FN3] See EPA's CGP Part 1.3. Many general contractors operate off

- site industrial facilities to support their construction activities (e.g., concrete or asphalt batch plants, equipment staging yards, material storage areas, excavated material disposal areas, bo rrow areas) and stormwater discharges from these activities are not authorized under the CGP if the activity: is a commercial operation, (2) serves multiple unrelated projects or (3) will continue to operate after the permitted construction project is comp lete.2015 EPA MSGP Response to Comments June 4, 2015

94 [FN4] See 40 CFR 122.26(b)(14)(i)

- (ix), (xi).

Response EPA tailors its general permit requirements and effluent limits to the types of activities regulated and covered under the permit. Because construction and industrial activities are generally very distinct, the CGP and MSGP cannot be very similar. However, EPA does synchronize the language and requirements of the two permits where it is sensible to do so. To the extent construction and industrial activities are occurring at the same time and place, EPA points out that compliance with one permit’s control requirements could satisfy the other permit’s requirements as well, and that unnecessary duplication should not be mandatory.

Comment ID 0073.001.008 Issue Category: 1.1

Author Name: Kelly Norton Permit Eligibility

Organization: Arizona Mining Association (AMA)

Part 1.1.4.7: Consistent with the comments immediately above regarding compliance with water quality standards, this Part should be revised as follows:

Eligibility for New Dischargers: Based on Water Quality Standards. If you are a new discharger (as defined in Appendix A), you are not eligible for coverage under this permit for discharges that EPA, prior to authorization under this permit, determines will cause or contribute to an exceedance of not meet any applicable water quality standard in the receiving waterbody. Where such a determination is made prior to authorization, EPA may notify you that an individual permit application is necessary in accorda nce with Part 1.2.3. However, EPA may authorize your coverage under this permit after you have included appropriate controls and implementation procedures designed to ensure your discharge will not cause or contribute to an exceedance of applicablemeets water quality standards in the receiving waterbody. In the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control requirements of this permit, including the requirements applicable to such discharges in Part 2

, will not cause or contribute to an exceedance ofmeet applicable water quality standards in the receiving waterbody.

Further, AMA requests that EPA clarify that the definition of "new discharger" does not include an existing site that has current NPDES permit coverage but that identifies or creates a new stormwater outfall. At large mining sites, new stormwater outfalls are often created and then added to the stormwater pollution prevention plan due to expansion or related activities and such outfalls should not be considered as "new dischargers" for purposes of the "new discharger" provisions in the draft MSGP.

Part 1.1.4.8: Consistent with the comments above regarding compliance with water quality standards, this part should be revised as follows:

E ligibility for New Dischargers to Water

- Quality Impaired Waters. If you are a new discharger (as defined in Appendix A), you are not eligible for coverage under this permit to discharge to an "impaired water" (as defined in Appendix A) unless you do one of the following:

a. Prevent all exposure to stormwater of the pollutant(s) for which the waterbody is impaired, and retain documentation of procedures taken to prevent exposure onsite with your SWPPP.

b. Prior to submitting your NOI, provide to the appr opriate EPA Regional Office technical information or other documentation to support your claim that the pollutant(s) for which the waterbody is impaired is not2015 EPA MSGP Response to Comments June 4, 2015

95 present at your site, and retain such documentation with your SWPPP.

c. Prior to submitting yo ur NOI, provide to the appropriate EPA Regional Office information, either data or other technical documentation, to support a conclusion that the discharge is not expected to cause or contribute to an exceedance ofmeet applicable water quality standards in the receiving waterbody, and retain such information with your SWPPP. The information to be submitted must be sufficient to

demonstrate:

. . . .

You are eligible under Part 1.1.4.8.c if you receive an affirmative determination from the Regional Offic e that your discharge will not cause or contribute to an exceedance ofmeet applicable water quality standards in the receiving waterbody, in which case you must maintain such determination onsite with your SWPPP, or if the Regional Office fails to respond within 30 days of submission of data to the Regional Office.

In addition to the above changes regarding not causing or contributing to an exceedance of applicable water quality standards in the receiving waterbody, AMA respectfully requests that the lang uage in paragraph c.ii be revised to simply require that if a water has an applicable EPAapproved or established TMDL, stormwater discharges from "new dischargers" must be consistent with applicable TMDL provisions, if any, including applicable wasteload a llocations.

The proposed language in the draft MSGP inappropriately requires the permittee to demonstrate there are sufficient remaining wasteload allocations in the TMDL even when the TMDL has determined that stormwater is not a source of the impairment

.

Further, the requirement to demonstrate that existing discharges to the waterbody are subject to compliance schedules designed to bring the waterbody into attainment with water quality standards imposes an inappropriate and potentially impossible burden on the permittee, which ultimately is part of the TMDL implementation process more appropriately determined by states or EPA.

Response EPA’s final permit language for Part 1.1.4.7 is essentially the same as the commenter’s suggestion.

The “new discharger” definition is established in 40 CFR 122.2 and it already includes the factor of a “site” not having been previously permitted.

EPA’s final permit language for Part 1.1.4.8 is also essentially the same as the commenter’s suggestion.

R egarding TMDLs, new dischargers, unlike existing dischargers, are required to demonstrate that any discharge to an impaired water will not cause or contribute to an exceedance of the applicable water quality standard, consistent with 40 CFR 122.4(i). As su ch, it is immaterial whether stormwater has or has not been identified as a source of the waterbody’s impairment. Regarding the concern about the burden of meeting option 1.1.4.8.c.ii, EPA will work with any permittee in making this determination.

Comment ID 0075.001.003 Issue Category: 1.1

Author Name: Claudio Ternieden Permit Eligibility

Organization: Water Environment Federation (WEF)

3. Allowable Non

- Stormwater Discharges2015 EPA MSGP Response to Comments June 4, 2015

96 a. The proposal adds pavement and building washing to the list of allowable and permit covered non

stormwater discharges. The permit and fact sheet both stipulate, that such discharges must not "come into contact with oil and grease deposits". However, due to typically de minimus, non

- liquid oil and grease

build

- up in vehicle parking lot and storage areas, pavement washing from these sites seems unlikely to meet this avoidance stipulation. At a minimum, we request EPA clarify that "parking lot" areas are no t part of the pavement washing allowance.

Response See response to Comment ID 0029.001.001. If industrial parking lots contain oil and grease, then the permit’s extant prohibition of washwaters coming into contact with the oil and grease applies. Howeve r, the permit specifies that such wash waters can be discharged, provided residues are cleaned up and appropriate control measures are implemented. Thus, most facilities will be able to meet the provision.

Comment ID 0082.001.002 Issue Category: 1.1

Au thor Name: Frederic Andes and Jeffrey Longsworth Permit Eligibility

Organization: Barnes & Thornburg LLP on behalf of the Federal Water Quality Coalition and the Federal Storm Water Association (FSWA)

New Requirements for New Dischargers: Section 1.1.4.7 of the Draft Permit is a new provision that was not included in prior versions of the MSGP. It contains new restrictions on new dischargers. EPA has stated, in the Fact Sheet, that this provision is intended to implement the requirements of 40 CFR 122.4(i). There are two problems with that justification. First, there is already a provision in the Draft Permit that implements 40 CFR 122.4(i): Section 1.1.4.8. That provision adequately addresses the 122.4( i) requirements, so there is no need for another provision. Second, Section 1.1.4.7 actually goes well beyond the scope of 122.4(i). While 40 CFR 122.4(i) concerns discharges to waters that are impaired - not meeting a water quality standard

- Section 1.1. 4.7 of the Draft Permit is broader, covering any new discharger to any water, and prohibiting eligibility for permit coverage if EPA determines that the discharge "will not meet any applicable water quality standard." As noted below, we believe that this

" will not meet" standard has no legal basis; but in addition, this provision covers discharges to waters that are themselves meeting water quality standards, and 40 CFR 122.4(i) provides no basis for coverage that broad. Section 1.1.4.7 should be deleted from the permit.

New Requirement to "Meet" Water Quality Standards: Both Section 1.1.4.7, which covers eligibility of new dischargers, and Section 2.2.1, which covers water quality

- based restrictions on all covered discharges, apply a new test, not used in prior versions of the MSGP, for determining when restrictions are justified based on water quality concerns. That new test is based on whether the discharge "meets" water quality standards. That is a much different test than the test used previously, which was based on whether the discharge "caused or contributed" to violations of water quality standards. The proper test, derived from EPA's regulatory requirements in 40 CFR 122.44(d), is the "cause or contribute" test. There is no requirement in the Clean Water Act that a discharge must, by itself, "meet" water quality standards. Standards are to be met in the waterbody, and do not apply to individual discharges. It is only if the discharge "causes or contributes" to a violation of those standards that a water quality

- based limit can be imposed. Therefore, the requirement in the Draft Permit that discharges "meet" water quality standards should be replaced with the proper "cause or contribute" test, as was included in prior versions of this same permit.

Ne w Requirements for High Quality Waters: Section 1.1.4.9 of the Draft Permit, which concerns eligibility for new dischargers to high quality waters, contains a new provision, not included in prior versions of the MSGP that contains restrictions on discharges to Tier 2 and Tier 2.5 waters. This new2015 EPA MSGP Response to Comments June 4, 2015

97 condition states that those dischargers are eligible for coverage only if their discharge "will not lower the water quality of the applicable water." There are several problems with this provision. First, we see no need for it. Discharges to Tier 2 and Tier 2.5 waters are already subject to water quality conditions under Section 2.2.3, and EPA has provided no reason why those requirements are not adequate. Second, this provision inappropriately shifts the burden of proof to the discharger, who must apparently show that its discharge "will not lower the water quality." Other provisions in the eligibility sections of the permit state that the discharger will not be eligible if certain tests are met; there is no reason why the burden needs to be shifted for this particular provision as to Tier 2 and Tier 2.5 discharges. Finally, this "high quality" water provision applies an incorrect legal test for eligibility. For discharges to Tier 2 waters, the test is not

whether th ere will be a lowering of water quality; under 40 CFR 131.12, new discharges that lower water quality are allowed, if it is shown that the discharge is necessary to accommodate important social or economic development. For Tier 2.5 waters, the test for allowing a new discharge differs depending on how the particular State has drafted its Tier 2.5 requirements. Therefore, imposing a uniform "will not lower water quality" test is inappropriate for Tier 2.5 waters. For all of these reasons, the provision in

Se ction 1.1.4.9 as to Tier 2 and Tier 2.5 waters should be deleted, or if not deleted, then modified to reflect the appropriate legal requirements.

Response Regarding Part 1.1.4.7, EPA disagrees with the commenter that the provision goes beyond the scope of 40 CFR Part 122.4(i). As discussed in response to Comment ID 0066.001.004, 40 CFR section 122.4(i) specifies that EPA may not issue a permit to a new discharger (or new source) that will cause or contribute to a violation of water quality standards. It applies whether or not the receiving water is impaired.

EPA uses “meet water quality standards” in the MSGP as that is recognizable, plain language that has been used in NPDES documents previously, but it has also clarified in this permit that “meet wat er quality standards” means that discharges will not “cause or contribute to an exceedance of a water quality standard.” See also CWA section 301(b)(1)(C); 40 CFR sections 122.4(d), 122.4(i), and 122.44(d).

For a discussion of WQS and mixing zones see the monitoring response to comment essay

.

The commenter is correct that Tier 2 and Tier 2.5 waters are subject to water quality

- based effluent limits under MSGP Part 2.2.3. However, it is reasonable to strengthen and clarify the anti -degradation provisions in the permit as a condition of permit eligibility to ensure that discharges eligible for the permit will be able to control their discharges as necessary to meet WQS. As a new source or discharger, EPA

would have no a priori knowledge of the proposed faci lity nor its proposed discharges; therefore, it is incumbent on such new dischargers and new sources to know what the facility’s potential impacts on high

- quality waters could be prior to seeking MSGP authorization. The commenter’s claim that the permit’s "high quality" water provision applies an incorrect legal test for eligibility is wrong. EPA establishes eligibility criteria for this permit and it has other permitting options for those discharges the Agency deems are not appropriate for the MSGP (e.g., an individual permit). The salient point is that such facilities can still obtain permit coverage even if not eligible for the MSGP. The Agency also understands that water quality can be lowered for the reasons the commenter enumerates; however, EPA again deems the MSGP inappropriate for such facilities.

The commenter is partially correct in that EPA regulations provide that a state may allow a lowering of water quality in Tier 2 or 2.5 waters, but only where a state “finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the state’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the state shall assure water quality adequate to protect existing uses fully. Further, the state shall2015 EPA MSGP Response to Comments June 4, 2015

98 assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control.” 40 CFR 131.12(a)(2). The regulations do not allow EPA (as opposed to the state) to make this determination at the time of permit issua nce. Where a state has made and documented such a demonstration, a new discharge should submit an application for an individual permit that would allow it to lower water quality in accordance with the state’s finding. Alternatively, a state could indicate on its 401 certification what specific waters are covered by such a determination and the new discharger could indicate in its NOI that its discharge is to one of the waters identified by the state, which would be allowable due to the state’s 401 certification becoming part of the permit.

Comment ID 0083.001.002 Issue Category: 1.1

Author Name: David Wagger Permit Eligibility

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Eligibility for New Dischargers Related to Water Quality Should Be Based on the Effect of the New Discharge at the Point Where the Discharge Enters the Receiving Water with Applicable Water Quality

Standards.

Proposed §1.1.4.7 ("Eligibility for New Dischargers: Based on Water Quality Standards") and §1.1.4.8 ("Eligibility for New Dischargers to Water

- Quality Impaired Waters") both involve demonstrating, directly or indirectly, that a new discharge will meet applicable water quality standards (WQS) of the receiving water. Such a determination should take place at the point where the new discharge enters the receiving water, which is where WQS apply, and the Draft 2013 MSGP should so indicate. Only for new discharges that directly enter the receiving water without mixing with other (i.e., off

- site) stormwater discharges would the determination occur at the point of stormwater discharge from the permittee's facility (i.e., end of pipe). It is worth noting that U.S. EPA included a similar concept in proposed § 1.1.4.10 ("For Discharges to a Federal CERCLA Site") in which only direct conveyance of stormwater discharges into certain identified Federal CERCLA Sites trigger the requirements of proposed §1.1.4.10.

The same concept

- compliance with WQS should be det ermined at the point where a stormwater discharge enters the receiving water with applicable WQS

- is also relevant and applicable to proposed §2.2 ("Water Quality- Based Effluent Limitations").

Response See the monitoring response to comment essay

.

Comm ent ID 0085.001.014 Issue Category: 1.1

Author Name: Zachary Griefen et al. Permit Eligibility

Organization: Conservation Law Foundation et al.

IV. Permit Coverage Exclusions.

A. EPA Should Adopt the Proposed Toxics Exclusion and Require Permittees to Submit Initial Screening Sampling With an NOI.

EPA specifically requests comments addressing "certain toxic pollutants in industrial stormwater discharges."[FN68] EPA is concerned that many MSGP

- permitted discharges contain toxic pollutants that are not adequately controlled by the permit's conditions:2015 EPA MSGP Response to Comments June 4, 2015

99 EPA is concerned that current 2008 and proposed 2013 Multi

- Sector General Permit requirements may not adequately prevent toxic p ollutants in stormwater discharges from causing sediment contamination and recontamination of Superfund cleanup sites and/or presenting an imminent and substantial endangerment to human health or welfare or the environment . . .the possibility of certain, particularly problematic toxic pollutants contaminating or recontaminating present or future Superfund sites, or presenting an imminent and substantial endangerment to human health or welfare or the environment, is still of great concern to EPA. [FN69]

E PA goes on to explain that it is considering identifying "certain toxic pollutants of concern that are especially problematic" and would make any discharge of these pollutants above the detection limit ineligible under the MSGP. EPA explains that "the indu strial operator would have to either eliminate such discharge or apply for an individual permit."[FN70] EPA suggests the following toxic substances for this list of excluded toxics: DDT/DDD/DDE, Dioxins/furans, PCBs, Aldrin/dieldrin, Hexachlorobenzene,

Mir ex, Octachlorostyrene, Toxaphene and Chlordane. [FN71]

Commenters strongly support this proposal for the reasons suggested by EPA. As a corollary, however, in the final permit EPA should also clarify that it is a violation of the permit for a permittee to discharge any detectable amount of an excluded pollutant.

In addition, commenters suggest that EPA require testing for these and other toxic pollutants as part of the NOI process because without such testing this proposed exclusion is meaningless. Curr ently, there is no testing requirement as part of the NOI coverage process and permittees do not test for the presence of any of these pollutants under the permit's monitoring requirements. EPA must establish conditions in the MSGP that ensure that all discharges from covered facilities are adequately controlled. EPA has correctly concluded that these pollutants cannot be adequately controlled under the MSGP. If EPA does not require facilities seeking coverage under this MSGP to test for the presence of these pollutants, EPA cannot enforce this exclusion or ensure that these pollutants are controlled as necessary to achieve water quality standards (and avoid recontamination of sediments or imminent and substantial endangerment to health and the environment).

[FN68] Fact Sheet at 12 -13.

[FN69] Fact Sheet at 13.

[FN70] Fact Sheet at 13 -14.

[FN71] See Fact Sheet at 13 -14.

Response See response to comment 0022.001.002.

Comment ID 0085.001.050 Issue Category: 1.1

Author Name: Zachary Griefen et al. Permit Eligibility

Organization: Conservation Law Foundation et al.

20. Identify "certain toxic pollutants of concern that are especially problematic" and would make any discharge of these pollutants above the detection limit ineligible under the MSGP as discussedin the Fact Sheet at pp. 12

- 14; clarify that it is a violation of the permit for a permittee to discharge any detectable amount of an excluded pollutant; and require testing for these and other toxic pollutants as part of the NOI2015 EPA MSGP Response to Comments June 4, 2015

100 process because without such testing this proposed exclusion is meaningless.

Response See response to Comment ID 0085.001.014.

Comment ID 0085.001.058 Issue Category: 1.1

Author Name: Zachary Griefen et al. Permit Eligibility

Organization: Conservation Law Foundation et al.

29. Modify the MSGP to contain, as a BMP and a non

- numeric effluent limit, a categorical prohibition on the use of coal tar based pavement sealants at all covered facilities and modify Section 1.1.3 of the MSGP to note that pavement wash waters from coal tar sealed parking lots are not eligible for coverage under this permit, no matter what cleaning agents are used;

Response See response to Comment ID 0085.001.027

.

Comment ID 0086.001.006 Issue Category: 1.1

Author Name: Daniel Graham Permit Eligibi lity

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Section: 1.1.3 Allowable Non

- storm water Discharges: Uncontaminated ground water or spring water is

an allowable non

- storm water discharge but the only location "uncontaminated" is defined is in Section 8 Subpart J. ACA recommends adding this definition to Appendix A to be applied uniformly throughout the

MSGP.

Response See response to Comment ID 0042.001.001. For consistency, the proposed definition in 8.J.3.10

“ Uncontaminated

- Free from the presence of pollutants attributable to industrial activity” has been excised. EPA has not kept the Sector J definition for general usage because it is incompatible with the

definition of “non

- stormwater discharges”.

Comment ID 0086.001. 009 Issue Category: 1.1

Author Name: Daniel Graham Permit Eligibility

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Section 1.1.4.7 Eligibility for New Discharges: Based on Water Quality Standards: ACA supports EPA's inclusion of language clarifying that, "[i]n the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control re quirements of this permit . . . will meet applicable water quality standards." Without explanation, however, EPA changed the phrase "causes or contributes to an exceedance of applicable water quality standards" to "does not meet applicable water quality

st andards." EPA should retain the language from the 2008 MSGP, as that more accurately tracks the language in EPA's NDPES regulations. The proposed language does not appropriately account for assimilative capacity or mixing zones.2015 EPA MSGP Response to Comments June 4, 2015

101 Section 1.1.4.9 Eligibility for New Discharges to Waters with High Quality: The MSGP only allows for new discharges to Tier 2 or Tier 2.5 waters if the discharge "will not lower the water quality of the applicable water." This phrase is too subjective and hence, is susceptible to inconsistent interpretations. Should EPA retain the proposed language in this part, it should add the clarification from proposed part 2.2.1, which states that, "in the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control requirements of this permit will result in discharges that will not lower the water quality of the applicable water" in Tier 2 and 2.5 waters.

Response

See the monitoring response to comment, and response to Comment ID 066.001.004 and 0 094.001.007.

Comment ID 0088.001.004 Issue Category: 1.1

Author Name: Justin Hayes Permit Eligibility

Organization: Idaho Conservation League

In sum, if the EPA issues this draft MSGP as final, the EPA needs to greatly limit the areas in Idaho that are covered by the MSGP. This permit must not authorize discharges to waters containing or affecting ESA listed fish. Nor should this permit authoriz e discharges of pollutants of concern to 303(d) listed waters unless the discharger has an assigned wasteload allocation pursuant to a EPA approved TMDL. Dischargers should not be allowed to utilize mixing zones and antideg reviews need to be conducted for each individual discharger.

Response

401 certifications from ID are where location

- specific provisions are most appropriate and will be

included in the near future after ID submits its 401 certification.

The 2015 MSGP contains more stringent eligibility requirements than the 2008 permit to ensure that discharges do not cause likely adverse effects to threatened and endangered species or critical habitat. The eligibility process involves coordination with the relevant Service field office. See Appendix E.

Nothing prevents EPA from providing coverage for new discharges to 303(d) listed waters even in the absence of an assigned wasteload allocation in an EPA

- approved TMDL, as long as it can provide assurance that the discharge will ensure compliance wit h water quality standards. As a matter of policy and in the absence of a TMDL, it is reasonable to allow a new discharge that discharges pollutants at or below the same level as the water quality criteria to be considered a discharge that will not cause or contribute to a violation of water quality standards (since it would either maintain or improve the receiving water quality). When the WQS has concentration

- based criteria, a discharge of pollutants at or below the criteria level will have a neutral or positive effect on the receiving water body, and over time may even help the waterbody to achieve attainment of water quality standards.

Comment ID 0089.001.005 Issue Category: 1.1

Author Name: Kerry Kelly and Chuck White Permit Eligibility

Organization: Waste Management (WM)

Narrowed Scope of "Allowable Non

- storm water Discharges"

EPA's fact sheet discusses other non

- storm water discharges that may require a different permit (i.e., prohibited non

- storm water discharges), and the Agency appears to be narrowing the scope of allowable

non- storm water discharges in the proposed MSGP 201 3. On fact sheet pages 6 and 7 (and in the2015 EPA MSGP Response to Comments June 4, 2015

102 proposed permit itself) the Agency discusses limitations on facilities' ability to rely upon the "NPDES Permit Shield" for various types of discharges not specifically enumerated in the MSGP 2013. That

discussion appears to be in response to recent court cases in which the courts relied upon the permit shield doctrine to overturn citizen suits relating to alleged unauthorized discharges.

Response See response to Comment ID 0094.001.004

.

Comment ID 0089.001.007 Issue Category: 1.1

Author Name: Kerry Kelly and Chuck White Permit Eligibility

Organization: Waste Management (WM)

•Storm water Discharges Associated with Construction Activities (except Mining, Oil and Gas). The proposed MSGP does not apply to storm water discharges associated with construction activities (unless they are associated with mining and oil and gas activities, where applicable requirements of Sectors G [metal mining], H [Coal Mines], I [Oil and Gas Extraction], and J [Mineral Mining] must be met). The Agency acknowledges that many of the operational activities associated with the oil, gas and mining

sectors are similar to construction activities, and by including construction activities for these three sectors under the MSGP, the Agency is offering a more streamlined approach for operators preferring to be covered by one permit, instead of two. This exemption will facilitate compliance for these types of operations. WM strongly supports this proposed provision for Mining, Oil and Gas.

Response EPA acknowledges the commenter’s support for this permitting approach.

Comment ID 0092.001.012 Issue Category: 1. 1

Author Name: Jeffrey Longsworth Permit Eligibility

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Sections 1.1.4.7

- 9 (New Discharger): Within Section 1.1.4.7, EPA addresses water quality standards (WQS) compliance for "new dischargers," stating:

However, EPA may authorize your coverage under this permit after you have included appropriate

controls an d implementation procedures designed to ensure your discharge meets water quality standards. In the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control requirements of this permit, including the requireme nts applicable to such discharges in Part 2, will meet applicable water quality standards.

This is EPA's first mention of WQS compliance in the draft MSGP. The issue of how to determine compliance with WQS is a very important issue, which FSWA addresses in more detail in its comments to Part 2 below, but WQS compliance can only be determined by "in

- stream" assessments during low

flow conditions.

As discussed more fully in Part 2 comments below, WQS compliance can only be assessed in the receiving waterb ody and not at the point of discharge from the facility, which may be miles from the receiving stream. Hence, EPA's statement that, "For discharges to waters without an EPA

- approved or established TMDL, that the discharge of the pollutant for which the water is impaired will meet in -stream water quality criteria at the point of discharge to the waterbody," needs additional explanation that the2015 EPA MSGP Response to Comments June 4, 2015

103 WQS determination must be made at the point the stormwater flow enters the receiving stream (assuming no mixing zone), not at the facility's discharge location (when those two locations are not the same point).

In the "new discharger" mandates, EPA reaches too far in its attempt to ensure compliance with WQS and unnecessarily restricts eligibility of such dischargers to the MSGP. While FSWA supports efforts to protect impaired waterbodies

- and related regulations that help ensure such protection - EPA's prerequisites for permit coverage are unnecessarily restrictive. For example, EPA proposes that new dischargers mus t "prevent all exposure" (as opposed to discharge) of pollutants contributing to the impairment or, alternatively, having to document to an EPA Region that such "pollutants are not present at the site." These proposed mandates unnecessarily restrict MSGP coverage. EPA can only regulate the discharge of pollutants, not on

- site exposure. To the extent that EPA attempts to limit exposure, EPA exceeds its NPDES authority.

Response For the purposes of meeting the demonstration in Part 1.1.4.7.c.i, EPA agrees with the commenter that the determination is made at the point the stormwater flow enters the receiving stream, which may not necessarily be the facility’s discharge location. The permit is clear regarding this point, and no additional explanation is neede d.

EPA is convinced that the establishment of eligibility requirements as necessary to protect water quality are within EPA’s authority, and if an operator of a facility finds any of the specific requirements inappropriate, they have the option to pursue an individual NPDES permit. Moreover, the requirement to prevent all exposure is not a requirement, it is an option for obtaining elibility for new discharges/sources to impaired waters, and if the facility does not want to pursue eligibility under that option, it can pursue another option. See also response to Comment ID 0082.001.002 and 0066.001.004.

Comment ID 0093.001.013 Issue Category: 1.1

Author Name: Amanda Aspatore Permit Eligibility

Organization: National Mining Association (NMA)

Part 1

- Coverage Under the Permit

Part 1.1.3: EPA uses the term "[u]ncontaminated ground water or spring water," yet it does not define the term "uncontaminated" in Appendix A. EPA does, however, include a definition for the term "uncontaminated" in Part 8.J.3.10, and it should add an identical definition either to this part or to Appendix A.

Response See response to Comment ID 0042.001.001 and 0086.001.006

.

Comment ID 0093.001.016 Issue Category: 1.1

Author Name: Amanda Aspatore Permit Eligibility

Organization: National Mining Association (NMA)

Part 1.1.4.7: NMA supports EPA's inclusion of language clarifying that, "[i]n the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control requirements of this permit . . . will meet applicable water quality standards." Without explanation, however, EPA changed the phrase "causes or contributes to an exceedance of applicable water quality standards" to "does not meet applicable water quality standards." EPA should retain the language from the 2008 MSGP, as that more2015 EPA MSGP Response to Comments June 4, 2015

104 accurately tracks the language in EPA's NDPES regulations. The proposed language also does not appropriately account for assimilative capacity or mixing zones, which are appropriately determined by

the states.

Part 1.1.4.9: The MSGP only allows for new discharges to Tier 2 or Tier 2.5 waters if the discharge "will not lower the water quality of the applicable water." This phrase is qualitative and too subjective, and hence is susceptible to inconsistent interpretations and legal challenges. Should E PA retain the proposed language in this part, it should add the clarification from proposed part 2.2.3, which states that, "in the absence of information demonstrating otherwise, EPA expects that compliance with the stormwater control requirements of this permit will result in discharges that will not lower the water quality of the applicable water" in Tier 2 and 2.5 waters.

Response

See the monitoring response to comment and response to Comment ID 066.001.004 and 0094.001.007.

Comment ID 0094.001.004 Issue Category: 1.1

Author Name: Eric Fry Permit Eligibility

Organization: Peabody Energy

Specific Proposed 2013 MSGP Sections

Regarding specific proposed permit sections of concern, Peabody points to the following:

1) 1.1.4 Limitations on Coverage and 5 Storm water Pollution Prevention Plan (SWPPP) (note: similar

references in 1.1.3 Allowable Non

- Stormwater Discharges and 2.1.2.9 Non

- Stormwater Discharges). The proposed language in these two sections expressly statin g that any discharges not expressly authorized under the permit are not covered by the MSGP or the permit shield provisions of Clean Water Act (CW A) s. 402(k) is an erroneous narrowing of the scope of the CWA's permit shield provision. This language

must be removed from the proposed MSGP. Court precedent from multiple jurisdictions does not support what EPA is proposing, therefore EPA should remove the language from sections 1.1.3, 1.1.4, 2.1.2.9 and 5 that narrows the permit shield provisions of the CWA.

Response EPA disagrees. Part 1.1.4 describes the limitations on what is covered under this permit. Any discharges not expressly authorized under the MSGP cannot become authorized or shielded from liability under CWA Section 402(k) by disclosure to EPA and/or state after issuance of the MSGP via any means, including the Notice of Intent (NOI) to be covered by the permit, the Stormwater Pollution Prevention Plan (SWPPP), or during an inspection. This is because any such discharges would not have been withi n the reasonable contemplation of EPA when it issued the MSGP. This is consistent with EPA’s long

standing interpretation of the scope of the MSGP and of how the CWA permit shield works with respect to general permits generally.

This is consistent with the recent decision by the United States Court of Appeals for the Ninth Circuit in Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC. In that decision, the 9 th Circuit reversed a

2013 US District Court ruling in this case, holding that “The plain terms of the General Permit prohibit

defendants’ non

- stormwater discharge of coal.” The panel relied heavily on the text in Part 2.1.2.10 of the 2008 MSGP, which states: “You must eliminate non

- stormwater discha rges not authorized by an NPDES permit. See Part 1.[1].3 for a list of non

- stormwater discharges authorized by this permit.” The fact that Part 1.1.3 was not strictly speaking exhaustive (because of an additional discharge listed in the sector

specific req uirements in Part 8) did not undercut the MSGP’s clear terms that unlisted discharges must be2015 EPA MSGP Response to Comments June 4, 2015

105 eliminated.

The panel did not reach the permit shield issue, but said it would have come out the same way if it had as “the express terms of the General Permit prohibit defendants’ non

- stormwater coal discharges, thus defendants would not be shielded from liability. As our outcome would be the same regardless of whether Piney Run’s analysis applies to general permits, we need not decide whether it does.”

The per mit shield for legitimate discharges of stormwater from industrial activity and the allowable non

stormwater discharges at Part 1.1.3 is not affected by the language regarding the scope of the permit shield in the MSGP, and this has not changed from previo us permits. The purpose of this language, which EPA has modified somewhat in response to comments received, is to clarify a misconception of some operators covered under the permit that the permit covers or “shields” other types of discharges that are

not expressly authorized (i.e., wastewaters other than those associated with stormwater or with the

exclusive list of authorized non

- stormwater discharges at Part 1.1.3).

Comment ID 0094.001.007 Issue Category: 1.1

Author Name: Eric Fry Permit Eligibility

Organization: Peabody Energy

4) 1.1.4.9 Eligibility for New Dischargers to Waters with High Water Quality. The MSGP only allows for new discharges to Tier 2 or Tier 2.5 waters if the discharge "will not lower the water quality of the applicable water." This phrase is too subjective an d hence, is susceptible to inconsistent interpretations. Should EPA retain the proposed language in this part, it should add the clarification from proposed part 2.2.3, which states that, "in the absence of information demonstrating otherwise, EPA expects that compliance with the storm water control requirements of this permit will result in discharges that will not lower the water quality of the applicable water" in Tier 2 and 2.5 waters.

Response EPA has deleted the proposed language that refers to an expectation that compliance with the MSGP will result in compliance with water quality standards from Part 1.1.4.7 because it is unnecessary in the eligibility section and caused considerable confusion. Thus, EPA does not agree it would be appropriate

to i nclude in Part 1.1.4.9 either. While EPA maintains that compliance with the permit will result in discharges that meet water quality standards, EPA recognizes that there may be information that necessitates additional measures to ensure that water quality standards are met. Thus, the water quality

based effluent limit in Part 2.2.1 of the MSGP states: “EPA may also require that you undertake additional control measures (to meet the narrative water quality

- based effluent limit above) on a site

specific basis ... if information... indicates that your discharges are not controlled as necessary to meet applicable water quality standards.” See CWA section 301(b)(1)(C) and EPA’s NPDES regulations at 40
CFR sections 122.4(d), 122.4(i), and 122.44(d).2015 EPA MSGP Response to Comments June 4, 2015

106 Issue Category: S ection 1.1.1
- Discharges Mixed with Non -Stormwater

Comment ID 0023.001.003 Issue Category: 1.1.1

Author Name: John Roy Discharges Mixed with Non

- Stormwater

Organization: Connecticut Galvanizing

RECEIVING WATER CONDITIONS

The draft MSGP does not consider mixing of stormwater in the receiving waters to which it is discharged (i.e., end -of- pipe concentrations of chemicals in stormwater are compared directly to WQC -based benchmarks for receiving waters). This concept is incons istent with procedures used in NPDES permits and, as a result, the benchmarks would have a high frequency of being too conservative. Even though the benchmarks are not effluent limits, permittees are required to undertake compliance actions that can lead

t o substantial capital investment in passive or active stormwater treatment best management practices (BMPs) that also impose life cycle operation and maintenance costs. The concept of bioavailability is well known to EPA and is somewhat accounted for by the metal translator needed to derive a total recoverable limit from a dissolved criterion. The dissolved metal fractions often vary in proportion to suspended material and are assumed to represent bioavailable fractions. However, neither the 2013 draft MSGP nor prior MSGPs provide for site

- specific translator incorporation into metals benchmarks.

A more appropriate benchmark applied to end -of- pipe should be based on the receiving environment, which by definition must account for the ambient water in which the aquatic organisms are living. In the MSGP, hardness

- based benchmarks for metals are based on the hardness of the receiving water and the

metal concentration at end -of- pipe. However, this situation represents two disconnected exposure -related metrics; the receiving water hardness determines the metal bioavailability after mixing, not at end -of-pipe (the same would also be equally true if BLM

- based benchmarks were included in the MSGP). Similarly, for discharges of stormwater to salt water, it is inappro priate and overly conservative to compare an

endof- pipe metal concentration (or any chemical type) to a saltwater benchmark that is reflective of the bioavailability and sensitivity of organisms in salt water. We further note that the proposed definitions for

saline water in the MSGP should be removed and instead the MSGP should refer to definitions in state water quality standards in order to prevent conflicts.

Therefore, for both freshwater and saltwater receiving waters, some level of mixing and ambi ent conditions should be taken into account in setting WQC

- based benchmarks. While one

- size -fits- all approaches should be avoided in favor of site

- specific conditions, there are already precedents for the inclusion of ambient conditions in setting state -wi de benchmarks in general industrial stormwater permits. Washington and Oregon, for example, have used a Monte Carlo approach with state

- and region

- specific stream data to account for mixing, metal translators, and hardness to derive state

- wide benchmarks for copper and zinc that are incorporated into their general industrial stormwater permits. However, the spatial scale of this approach has serious limitations when applied across broad regions, such as states, or even in dividing eastern and western Washington State in the case of copper. Nonetheless, this type of analysis could readily be performed on more appropriate scales using a common set of BLM parameters, ambient stream data, and metal translators. Alternatively, the FMB approach may be even better suited because it inherently addresses variability in ambient conditions and could be augmented to include metals translators. The Monte Carlo and FMB approaches would provide more appropriate levels of aquatic life protection than the approach presented in the draft MSGP, while considering similar factors and approaches as used in individual NPDES permits.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

107 Comment ID 0068.001.004 Issue Category: 1.1.1

Author Name: Marilyn Guthrie Discharges Mixed with Non

- Stormwater

Organization: Port of Seattle, Washington

3. Recognition of Dilution and Mixing

The draft MSGP fails to consider mixing of stormwater in the receiving waterbody to which it is discharged. Instead, the MSGP proposes to compare end -of- pipe "total" chemical concentrations in stormwater directly to ambient WQC

- based benchmarks for receivi ng waters. This concept is inconsistent with long

- standing EPA procedures used in NPDES permits, does not reflect real

- world exposures to resident aquatic populations, and will trigger treatment practices which are costly and unnecessary in order to reasonably protect aquatic communities. Even though EPA has been careful to note that benchmarks are not "effluent limits," permittees are required to undertake compliance actions that can lead to substantial capital investment in passive or active stormwater tr eatment best management practices (BMPs) that also impose life cycle operation and maintenance costs. A more appropriate approach to

calculate numeric end -of- pipe concentration values is to use benchmarks in combination with dilution

estimates that account for near

- and far

- field mixing within the receiving waterbody (based upon applicable mixing zone guidance for aquatic life and human health protection). This is the basis of EPA's approach for determining water

- quality based permit limits under the NPDES program. Ignoring in

stream dilution (in most cases) is inappropriate and is not based upon good science, particularly when applied to stormwater discharges because they are typically intermittent and of relatively short duration. The MSGP should explicitl y allow for the use of sitespecific mixing zones and dilution factors as allowed by existing state regulations.

In summary, we urge EPA to develop benchmarks for the MSGP that utilize the latest science and implement policies when regulating the discharge of metals and other stormwater constituents into receiving waters. To ensure that the EPA's targeted level of aquatic life protection is more accurately

achieved from site -to- site, the use of the BLM, chemical translators and Water Effect Ratios should b e allowed for deriving benchmarks which address the bioavailable fraction of the total metal measurement. In addition, we urge the EPA to consider stormwater mixing within the receiving waterbody. Using these suggested approaches can better identify stormwater discharges requiring treatment, versus those where the probability of in

- stream effects is low. In addition to our concerns above, we share concerns raised by others in regards to existing MSGP sampling protocols, benchmark enforceability, and technol ogical achievability of certain WQC

- based benchmarks (CSBC 2013a,b).

Response See the monitoring response to comment essay.

Comment ID 0076.001.003 Issue Category: 1.1.1

Author Name: William Adams Discharges Mixed with Non

- Stormwater

Organization: North American Metals Council (NAMC)

MSGP Should Include Mixing of Stormwater in Receiving Waters

As drafted, the MSGP does not consider mixing of stormwater with the receiving waters to which it is discharged (i.e., end -of- pipe concentrations of chemicals in stormwater are compared directly to Water Quality Criteria (WQC)

- based benchmarks for receiving waters). This concept is inconsistent with procedures used in NPDES permits and, as a result, the benchmarks would have a high frequency of2015 EPA MSGP Response to Comments June 4, 2015

108 being too conservative. Although the benchmarks are not effluent limits, permittees are required to undertake comp liance actions that can lead to substantial capital investment in passive or active stormwater treatment best management practices (BMP) that also impose life cycle operation and maintenance costs. The concept of bioavailability is well known to EPA and is somewhat accounted for by the metal translator needed to derive a total recoverable limit from a dissolved criterion. The dissolved metal fractions often vary in proportion to suspended material and are assumed to represent bioavailable

fractions. However , neither the 2013 draft MSGP, nor prior MSGPs provide for site

- specific translator incorporation into metals benchmarks.

A more appropriate benchmark applied to end -of- pipe should be based on the receiving environment, which by definition must account for the ambient water in which the aquatic organisms are living.

Response See the monitoring response to comment essay.

For many years, both the CDA and IZA have been involved in the development and application of state

of-the- science approaches for regulating metals in the aquatic environment. Therefore, these comments focus on two related topics we feel need to be addressed in the MSGP:

(1) inclusion of aquatic life criteria for metals that reflect the state -of-the- science with regard to bioavailability and toxicity, and

(2) consideration of mixing of stormwater in receiving waters.

The two topics are related becaus e the criteria for metals ultimately needed for protecting designated uses are based on bioavailability to aquatic organisms, which depends on water chemistry conditions in receiving waters (not in discharge outfalls or stormwater ditches or drains).

Re sponse See the monitoring response to comment essay.

Comment ID 0084.001.005 Issue Category: 1.1.1

Author Name: Joseph Gorsuch and Eric Van Genderen Discharges Mixed with Non

- Stormwater

Organization: Copper Development Association (CDA) and the International Zinc Association (IZA)

RECEIVING WATER CONDITIONS

The draft MSGP does not consider mixing of stormwater in the receiving waters to which it is discharged (i.e., end -of- pipe concentrations of chemicals in stormwater are compared directly to WQC -based benchmarks for receiving waters). This concept is incons istent with procedures used in NPDES permits and, as a result, the benchmarks would have a high frequency of being too conservative. Even though the benchmarks are not effluent limits, permittees are required to undertake compliance actions that can lead

t o substantial capital investment in passive or active stormwater treatment best management practices Comment ID 0084.001.002 Issue Category: 1.1.1

Author Name: Joseph Gorsuch and Eric Van Genderen Discharges Mixed with Non

- Stormwater

Organization: Copper Development Association (CDA) and the International Zinc Association (IZA)2015 EPA MSGP Response to Comments June 4, 2015

109 (BMPs) that also impose life cycle operation and maintenance costs. The concept of bioavailability is well known to EPA and is somewhat accounted for by the metal translator needed to derive a total recoverable limit from a dissolved criterion. The dissolved metal fractions often vary in proportion to suspended material and are assumed to represent bioavailable fractions. However, neither the 2013 draft MSGP nor prior MSGPs provide for site

- specific translator incorporation into metals benchmarks.

A more appropriate benchmark applied to end -of- pipe should be based on the receiving environment, which by definition must account for the ambient water in which the aquatic organisms are living. In the MSGP, hardness

- based benchmarks for metals are based on the hardness of the receiving water and the

metal concentration at end -of- pipe. However, this situation represents two disconnected exposure -related metrics; f or freshwater, the receiving water hardness determines the metal bioavailability after mixing,

not at end -of- pipe (the same would also be equally true if BLM

- based benchmarks were included in the MSGP). Similarly, for discharges of stormwater to saltwater, it is inappropriate and overly conservative to compare an end -of- pipe metal concentration (or any chemical type) to a saltwater benchmark that is reflective of the bioavailability and sensitivity of organisms in saltwater. We further note that the

propose d definitions for saline water in the MSGP should be removed and instead the MSGP should refer to definitions in state water quality standards in order to prevent conflicts.

Therefore, for both freshwater and saltwater receiving waters, some level of mixing and ambient conditions should be taken into account in setting WQC

- based benchmarks. While one

- size -fitsall approaches should be avoided in favor of site

- specific conditions, there are already precedents for the

inclusion of ambient conditions in setti ng state

- wide benchmarks in general industrial stormwater permits. Washington and Oregon, for example, have used a Monte Carlo approach with state

- and region

- specific stream data to account for mixing, metal translators, and hardness to derive state -wide benchmarks for copper and zinc that are incorporated into their respective general industrial stormwater permits. However, the spatial scale of this approach has serious limitations when applied across broad regions, such as states, or even in dividing eastern and western Washington State in the case of copper. Nonetheless, this type of analysis could readily be performed on more appropriate scales using a common set of BLM parameters, ambient stream data, and metals translators. Alternatively, the FMB appr oach may be even better suited because it inherently addresses variability in ambient conditions and could be augmented to include metals translators. The Monte Carlo and FMB approaches would yield benchmarks that are more consistently aligned with EPA's intended levels of aquatic life protection than the simplistic approach presented in the current and draft MSGP, while considering similar factors and approaches as used in individual NPDES permits.

Response See the monitoring response to comment essay.

•Discharges mixed with non

- storm water discharges. The proposed permit clarifies that other non -storm water discharges are not covered by the MSGP unless specifically listed in Part 1.1.3 of the permit. Part 1.1.3 includes discharges from fire

- fighting activities, fire hydrant flushings and several other relatively common and insignificant non- storm water discharge activities. WM strongly supports the inclusion of these discharges in MSGP Part 1.1.3.

Response EPA acknowledges the commenter’s support for this provision. Comment ID 0089.001.006 Issue Category: 1.1.1

Author Name: Kerry Kelly and Chuck White Discharges Mixed with Non

- Stormwater

Organization: Waste Management (WM)2015 EPA MSGP Response to Comments June 4, 2015

110 Comment ID 0092.001.010 Issue Category: 1.1.1

Author Name: Jeffrey Longsworth Discharges Mixed with Non

- Stormwater

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

There are many "gray areas" that do not lend themselves neatly to black and white line drawing.

For example, Section 1.1.4.1 requires that:

Stormwater discharges that are mixed with non

- stormwater, other than those non

- stormwater discharges listed in Part 1.1.3, are not eligible for coverage under this permit.

This requirement could be interprete d such that any mixing of industrial stormwater with any non

stormwater not otherwise listed in the permit removes or somehow vitiates the coverage for the permitted industrial stormwater discharge in that combined discharge. In other words, not only is the non

stormwater portion not covered by the MSGP (logical solution), but the implication is that the MSGP covered part of that combined discharge somehow also loses its MSGP protection (illogical solution). The Fact Sheet implies that the former is EPA's intent (to force alternative permit coverage of the otherwise unpermitted non

- stormwater), but EPA's true intent is not explained with sufficient precision.

EPA must also recognize that many industrial operations rely upon raw materials or operations in w hich water is a component of the material or operation otherwise covered by this permit. For example, "non

stormwater" is mixed with glycol

- based materials to generate an appropriate deicing fluid mixture that then is applied to aircraft for winter time fl ight safety, with residual fluid being mixed with stormwater that clearly is covered by the MSGP. However, a strict reading of Section 1.1.4.1 raises questions about that (and numerous other industrial materials and operations) process under the MSGP.

R esponse The MSGP covers discharges of stormwater from industrial activity and an exclusive list of non

stormwater in Part 1.1.3. Other types of non

- stormwater discharges (i.e., wastewaters) must be permitted separately. Wastewater not included in Part 1.1. 3 mixed (i.e., commingled) with stormwater discharges is still wastewater and is not authorized under the MSGP, as the permit makes clear. See Part 1.1.4.1. However, stormwater runoff containing pollutants or coming into contact with pollutants is still

co nsidered stormwater, and thus is authorized under the MSGP. To clarify, Part 1.1.4.1 is intended to reduce the potential for permittees to combine unauthorized non

- stormwater discharges with stormwater under the MSGP (e.g., adding unpermitted wastestreams to a stormwater pond would make any resulting discharge ineligible for coverage under this permit). EPA is concerned that without this provision, permittees could mix environmentally harmful wastewaters with collected stormwater and claim that the

combined discharges are authorized under the permit (which Part 1.1.4.1.makes clear they are not). EPA has further clarified Part 1.1.4.1 to specify that the permit authorizes stormwater that is mixed with a discharge authorized by a different NPDES permit and/or a discharge that does not require NDPES

authorization.

In response to the example raised by the commenter, EPA clarifies that stormwater containing residual glycol is stormwater that is authorized for discharge under the MSGP (one pollutant being glycol). Glycol discharged absent any stormwater is wastewater, and is not authorized under the MSGP.2015 EPA MSGP Response to Comments June 4, 2015

111 Issue Category: Section 1.1.2
- Endangered and Threatened Species and Critical Habitat Protection

Comment ID 0040.001.004 Issue Category: 1.1.2

Author Name: Kevin Walgenbach Endangered and Threatened Species and

Critical Habitat Protection Organization: National Ready Mixed Concrete Association (NRMCA)

4. Endangered Species Requirements

- While NRMCA doesn't take issue with taking the necessary steps to protect threatened and endangered species, NRMCA does question the necessity of the new Appendix E procedures since the new procedures merely end up establishing the same information for a location as were established in the 2008 MSGP. Requiring a new procedure for determining the same information, when it has already been established using a known and efficient method, is arbitrary and capricious, and

add s an unnecessary paperwork burden on employers of all sizes. NRMCA suggests allowing locations to continue using the same criteria selected in the 2008 MSGP without having to add another unnecessary step of following the Appendix E procedures. The new procedures offer no environmental benefit as well.

Response The criteria in Part 1.1.4.5 and procedures specified in Appendix E of the 2015 MSGP were developed in consultation with the Services, and formed the basis of the Services’ “no jeopardy” biologi cal opinion on the permit. Consultation was not completed on the previous MSGP, which allowed permittees to self

certify no likely adverse affects to listed species without oversight by EPA or the Services. As such, previous eligibility determinations made by permittees are not sufficient in order for the MSGP’s issuance to be adequately protective of listed species and critical habitat.

EPA has streamlined the new requirements to the extent possible. The most significant changes apply only to approximate ly 500 permittees, and will require the submission of an eligibility worksheet prior to

the NOI submission. The information submitted on the NOI is basic information that would otherwise be included in the SWPPP, so completion of the worksheet should be not unduly burdensome. EPA and the Services will have 30 days to review the worksheet to ensure the facility’s discharges and discharge

related activities are not likely to adversely affect listed species and critical habitat, after which the facility may pr oceed with NOI submission for permit coverage. EPA expects that most facilities will receive permit coverage with no additional controls needed to ensure the “not likely to adversely affect”

standard is met.

It is EPA’s expectation that permittees that are deemed eligible under the new permit will not have to undergo additional eligibility procedures under future issuances of the MSGP, provided no significant changes have occurred (e.g., no new listed species, no new industrial activities).

Comment ID 0059.001.002 Issue Category: 1.1.2

Author Name: Donald Schregardus Endangered and Threatened Species and

Critical Habitat Protection Organization: Department of Defense, Department of the Navy

1. Endangered and Threatened Species and Critical Habitat Protection: Ensuring Uninterrupted Permit Coverage

Proposed Requirement or Section Addressed: 1.1.4.5, Endangered and Threatened Species and Critical Habitat Protection, Criterion C

Comment: The Navy found that obtaining coverage under the 2008 MSGP in Washington State was a2015 EPA MSGP Response to Comments June 4, 2015

112 lengthy process (much longer than 30 days) due to the endangered species eligibility criteria.

Discussion: DoD is concerned about a lapse in permit coverage if EPA, the Nat ional Marine Fisheries Service (NMFS), and/or the U.S. Fish and Wildlife Service (USFWS) do not make the determination that a facility is eligible for coverage under the 2013 MSGP in the 30 days between when the E.4 Criterion

Selection Worksheet is submitt ed, and when the NOI is submitted. Facilities that were authorized for coverage under the 2008 MSGP should be authorized to continue operating under the existing permit, even if the Services have not completed their review of the E.4 Criterion Selection Worksheet or have outstanding questions for the facility.

Recommendation: Change the discharge authorization date in Table 1

- 2 to read "Your authorization under the 2008 MSGP is automatically continued until you have been granted coverage under this permit or an alternate permit, Services review of the E.4 Criterion Selection Worksheet is completed, or coverage is

otherwise terminated."

2. Endangered and Threatened Species and Critical Habitat Protection, Criterion D

Proposed Requirement or Section Addr essed: 1.1.4.5, Criterion D

Comment Criterion D concerns consultation between a Federal Agency and the USFWS and/or the NMFS but does not address the case where EPA, rather than the Services provided the concurrence letter.

Discussion: For a number of facilities in Washington State, the Navy worked with EPA Region 10 and NMFS to obtain coverage under the 2008 MSGP. The Navy has written approval from EPA granting permit coverage for the 2008 MSGP. The discharge approval letter s reference NMFS concurrence but are

from EPA.

Recommendation: Add paragraph iii to Section 1.1.4.5 Criterion D that states "Written concurrence from EPA that the required consultation was conducted with a finding that the facility's discharges and

disch arge

- related activities are not likely to adversely affect federally

- listed species or federallydesignated

critical habitat."

Response Facilities covered under the 2008 MSGP will remain covered until they receive authorization under the new MSGP (following all reviews or other situations that may delay coverage), or until such time the facility is issued an individual or alternative permit. Thus the commenter’s concern is addressed.

EPA clarifies that Criterion D in Part 1.1.4.5 is intended to apply to facilities that conduct a section 7 ESA consultation as part of a separate federal action (not associated with obtaining MSGP coverage). In such cases, the biological opinion or concurrence would come from the applicable Services office (i.e., NMFS and/or FWS). It does not apply to scenarios in which EPA coordinates with the Services in making a determination of a facility’s eligibility with regard to the protection of listed species (wh ich could occur under Criterion C); such eligibility determinations are not associated with a section 7 consultation.

Comment ID 0066.001.003 Issue Category: 1.1.2

Author Name: Timothy Carlstedt Endangered and Threatened Species and

Critical Habitat Protection Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)2015 EPA MSGP Response to Comments June 4, 2015

113 Part 1.1.4.5 Endangered and Threatened Species and Critical Habitat Protection

The 2013 MSGP imposes additional burdens, compared with the 2008 MSGP, on dischargers generally to establish that their authorized discharges are not likely to jeopardize listed species or critical habitat (or that the discharges have been addressed through consultation with the U.S. Fish and Wildlife Service

and/or National Marine Fisheries Service

- the "Services").

UWAG continues to question whether facility

- specific consultation with the Services through the NOI process is necessary or appropriate under the NPDES permitting scheme. As noted previously in comments, at least one U.S. Court of Appeals has held that, at least for purposes of EPA's Construction General Permit, EPA need not engage in consultation with the Services every time an NOI is filed or a SWPPP is prepared. See Texas Independent Producers and Royalty Owners Association v. EPA, 410 F. 3d 964, 979 (7th Cir. 2005). UWAG believes a court would reach the same conclusion for the MSGP. [FN5]

UWAG acknowledges the importance of protecting li sted species and critical habitat. However, unless EPA has evidence that existing dischargers are jeopardizing species and/or habitat, UWAG respectfully submits that dischargers' current certifications of eligibility should suffice for purposes of the 2013 MSGP. Only if EPA and/or the Services notify the discharger during the 30

- day "authorization" period that his or her discharges likely are jeopardizing species and/or habitat, and provide credible evidence of such jeopardy, should the discharger be required to engage in any recertification process.

[FN5] Just as EPA has determined that, for purposes of NEPA, a single determination as to the environmental impacts of the permit is appropriate, so should a single consultation be appropriate for ESA purposes

.

Response The eligibility requirements and associated procedures in Appendix E are not separate, facility -specific

ESA section 7 consultations. The federal action associated with the MSGP is the one

- time issuance of the general permit, and not individual authorizations to discharge under it. Because EPA and the Services do not know exactly where covered discharges will occur prior to the permit’s issuance, EPA in coordination with the Services developed the eligibility procedures in Part 1.1.4.5 to ensure the protection of listed species from discharges and discharge

- related activities authorized under the permit through site -specific evaluations. While some facilities may need to coordinate with EPA and/or the Services in determining their eligibility u nder Part 1.1.4.5, such coordination is not to be considered an ESA consultation (with the exception of facilities obtaining coverage under Part 1.1.4.5 criterion D, which applies when there is a separate federal action triggering an ESA consultation). Add itionally, interactions with the Services are

on an as

- needed basis; only a small number of facilities receive this level of attention.

Regarding the commenter’s request that the previous certifications be used for determining eligibility under Part 1.1.4.5, see response to Comment ID 0040.001.004.

Comment ID 0070.001.004 Issue Category: 1.1.2

Author Name: Beth Goodnough Endangered and Threatened Species and

Critical Habitat Protection Organization: Western Fuels Association Inc.

B. Part 1.1.4.5 ESA Protections:

EPA proposes to make a number of changes to the ESA provision, including requiring facilities to submit a criterion selection worksheet. As worded and mapped out in Criterion A

- E, these will be confusing to2015 EPA MSGP Response to Comments June 4, 2015

114 comply with. The EPA has not clearly defined who these are applicable to. Nor did EPA adequately explain why these changes are proposed. These changes would impose unnecessary burdens and could potentially delay the process of obtaining coverage under the MSGP. The information that was deemed sufficient to satisfy the eligibility criteria under the 2008 MSGP should continue to govern. EPA has not shown why the 2008 criteria are inadequate or why there is any need to change the existing process. If EPA chooses to retain the new provisions, it should revise the criteria to specify that certain documents (e.g., those required under NEPA) provide the necessary showing of ESA compliance. For example, mine operators often operate on federal lands, which trigger NEPA review. The resulting NEPA document may not necessarily include copies of correspondence from the Services, but the discussions in the document will reflect the substance of the Services' findings. Facilities should be able to rely on those documents to satisfy the eligibility criteria in this part in lieu of having to fill out the new worksheet.

Response In response to commenter’s assertion, EPA has clearly stated which eligibility criteria apply to whom and the steps that must be taken in order to make criteria s elections. Each facility must follow the requirements in Appendix E to determine their Part 1.1.4.5 eligibility. See also response to Comment ID 0040.001.004. Actions taken for endangered species analysis/due diligence for other purposes (e.g., NEPA) do no t have to be repeated if the MSGP’s requirements are met.

Comment ID 0071.001.003 Issue Category: 1.1.2

Author Name: Robert Barnes Endangered and Threatened Species and

Critical Habitat Protection Organization: Midas Gold Inc. (MGI)

2. Endangered & Threatened Species and Critical Habitat Consultation

Previously this consultation was self

- certification of no adverse impact based on best professional judgment. The 2008 provisions have been shown to be both effective and protective. The 2013 proposed additions will result in an unnecessary burden on National Marine Fisheries and U.S. Fish & Wildlife staffers for ESA consultations in proposed "action areas" where federally designated species are likely to occur in or near a facility. This is an unnecessary modification to the regulations in the case of a "not likely to effect" scenario. The 2008 provisions are protective of T&E species and should be retained in the new permit.

Response See response to Comment ID 0040.001.004.

Comment ID 0075.001. 004 Issue Category: 1.1.2

Author Name: Claudio Ternieden Endangered and Threatened Species and

Critical Habitat Protection Organization: Water Environment Federation (WEF)

4. Endangered Species Requirements and 5. Historic Properties Preservation Act

a. The intent of the MSGP is to provide an expedited way of securing coverage for stormwater discharges. The application process should be simple and straightforward. The proposed MSGP coverage process has

many pre

- NOI requirements, such as those related to endangered species, critical habitats and historic properties, which are cumbersome and may result in involuntary noncompliance due to lengthy process requirements. WEF supports an approach that would allow applicants to file a simple Notice of Intent and applicable worksheets together in order to be covered by the MSGP and achieve compliance. If, after review, EPA finds additional work is required, a reasonable time should be allowed to provide additional2015 EPA MSGP Response to Comments June 4, 2015

115 consultation, information and studies required. Since EPA can request revisions to the SWPP and NOI at any time after filing, applicants should be allowed to file the worksheet and NOI concurrently, and thus

secure coverage.

Response Eligibility must be established prior to NOI submission, as has always been the case. Otherwise ineligible facilities could be, at least arguably, authorized under the permit. The commenter must remember that ongoing permittees remain covered under the pre vious permit until such time as a new permit authorizes their discharges. See also response to Comment ID 0040.001.004

Comment ID 0086.001.007 Issue Category: 1.1.2

Author Name: Daniel Graham Endangered and Threatened Species and

Critical Habitat Protection Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Section 1.1.4.5 Endangered Species Protection Criterion: EPA proposes to make a number of changes to the ESA provision, including requiring facilities to submit a criterion selection worksheet. In addition, for Criterion C, facilities must submit the works heet to EPA and the Services at least 30 days prior to the filing of an NOI for permit coverage. These changes would impose unnecessary burdens and could potentially delay the process of obtaining coverage under the MSGP. The information that was deemed

su fficient to satisfy the eligibility criteria under the 2008 MSGP should continue to govern. EPA has not shown why the 2008 criteria are inadequate or why there is any need to change the existing process. If EPA chooses to retain the new provisions, it should revise the criteria to specify that certain documents (e.g., those required under NEPA) provide the necessary showing of ESA compliance. For example, mine operators often operate on federal lands, which trigger NEPA review. The resulting NEPA document m ay not necessarily include copies of correspondence from the Services, but the discussions in the document will reflect the substance of the Services' findings. Facilities should be able to rely on those documents to satisfy the eligibility criteria in thi s part in lieu of having to fill out the new worksheet.

Response See response to Comment ID 0040.001.004. EPA notes that the NEPA document may be submitted in lieu of the worksheet provided it addressed all the requirements of the worksheet, but such in formation is still subject to review of EPA and the Services to ensure the standard of “not likely to adversely affect” is met for criterion C, which may or may not have been met as a result of the NEPA review.

Further, since many waters in Idaho contain species protected by the Endangered Species Act, we ask EPA ensure that ESA consultations specific to Idaho waters and fish and for individual dischargers be conducted prior to discharges being authorized in Idah o.

Response EPA’s section 7 consultation on the issuance of the MSGP addressed all areas affected by the action, including the State of Idaho.

Comment ID 0089.001.014 Issue Category: 1.1.2

Author Name: Kerry Kelly and Chuck White Endangered and Threatened Species and Comment ID 0088.001.002 Issue Category: 1.1. 2

Author Name: Justin Hayes Endangered and Threatened Species and

Critical Habitat Protection Organization: Idaho Conservation League2015 EPA MSGP Response to Comments June 4, 2015

116 Organization: Waste Management (WM) Critical Habitat Protection

Endangered Species Requirements

The proposed MSGP would change the procedures that operators are required follow to certify their compliance with the Endangered Species Act (ESA). The applicant would be allowed to do one of the following:

A. show that there are no threatened and endangered (T&E) species or critical habitat in the discharge

area;

B. rely upon a nearby discharger's certification under the new MSGP;

C. show that the discharge is not likely to adversely affect T&E species or critical habitat;

D. rely on a completed consultation with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS); or

E. rely upon an ESA section 10 permit specific to the discharge.

WM is prepared to follow one of the above courses of action should such a requirement be imposed through this MSGP at new facilities or facilities that have not previously documented compliance. However, compliance with some of these options may prove to be burdensome if EPA requires retrospective compliance with the new requirement s. We believe that the prior permit requirements are appropriate as stated by EPA in the Fact Sheet. The new requirements to provide more detailed information, especially under the Criterion C selection, would be a substantial increase in burden to the

fac ility because facilities would like need to hire consultants to perform the analysis. This process would also result in delays in maintaining storm water permits. Accordingly, WM requests that EPA allow reliance on prior ESA determinations, if they were submitted as part of an existing permit NOI:

1.1.4.5 Endangered and Threatened Species and Critical Habitat Protection. ...

You must comply with any applicable terms, conditions, or other requirements developed in the process of meeting the eligibility criteria in this section to remain eligible for coverage under this permit. Facilities can rely on documentation that they have met the ESA requirements under prior permits. Documentation of these requirements must be kept as part of your SWPPP (see Part 5.2.6.1).

WM understands that the ESA requirements only apply when EPA is the permit issuer. These requirements do not apply w hen a state issues their own permit, unless, perhaps, they choose to incorporate this language.

Response See response to Comment ID 0040.001.004. EPA also notes that much of the information from previous endangered species investigations is likely still relevant. The previous permit allowed facilities to self

certify that the discharges and discharge

- related activities would result in no likely adverse affects to listed species. Provided this certification was met, additional analyses would not be required. However, if there was not an adequate basis for the previous determination, additional analyses could be required.

The commenter’s understanding that these requirements only apply under the EPA

- issued MSGP is correct. States may have different requirements applicable to the protection of threatened and endangered2015 EPA MSGP Response to Comments June 4, 2015

117 species from industrial stormwater discharges covered under their permits.

Comment ID 0093.001.014 Issue Category: 1.1.2

Author Name: Amanda Aspatore Endangered and Threatened Species and

Critical Habitat Protection Organization: National Mining Association (NMA)

Part 1.1.4.5: EPA proposes to make a number of changes to the ESA provision, including requiring facilities to submit a criterion selection worksheet. In addition, for Criterion C, facilities must submit the worksheet to EPA and the Services at least 30 days prior to the filing of an NOI for permit coverage. These changes would impose unnecessary burdens and could potentially delay the process of obtaining coverage under the MSGP. The information that was deemed sufficient to satisfy the eligibility criteri a under the 2008 MSGP should continue to govern. EPA has not shown why the 2008 criteria are inadequate or why there is any need to change the existing process. If EPA chooses to retain the new provisions, it should revise the criteria to specify that certain documents (e.g., those required under NEPA) provide the necessary showing of ESA compliance. For example, mine operators often operate on federal lands, which triggers NEPA review. The resulting NEPA document may not necessarily include copies of correspondence from the Services, but the discussions in the document will reflect the substance of the Services' findings. Facilities should be able to rely on those thoughtfully developed documents to satisfy the eligibility criteria in this part in lieu of h aving to fill out the new worksheet.

Additionally, EPA should not adopt its proposed revisions to the definition of "action area." The 2008 MSGP appropriately limited "action areas" to those areas affected by the stormwater discharge, and EPA does not provide a justification for expanding that definition to include "areas where stormwater discharges originate and flow from the industrial facility to the point of the discharge into receiving

waters."

Response See response to Comment ID 0040.001.004 and 0075.001.004 . Regarding the revised definition of “action area”, the revision resulted through EPA’s consultation with the Services, and the definition is consistent with the ESA’s implementing regulations at 50 CFR Part 402.

Comment ID 0094.001.005 Iss ue Category: 1.1.2

Author Name: Eric Fry Endangered and Threatened Species and

Critical Habitat Protection Organization: Peabody Energy

2) 1.1.4.5 Endangered and Threatened Species and Critical Habitat Protection. Peabody recognizes this is a broadly applicable provision that EPA has presumably received input on from other agencies. However, the modified criteria for certifying compliance with the Endangered Species Act (ESA) should be re

examined. Particularly, complying with Criteria C, D and E would be unduly onerous. The criterion selection worksheet, and in particular for Criterion C, having to submit the worksheet to EPA and the

Servi ces at least 30 days prior to a notice of intent (NOI) filing for permit coverage, are unnecessarily burdensome. Peabody requests that the information deemed acceptable under the 2008 MSGP be deemed acceptable now. Short of this, EPA needs to at least revise the criteria to stipulate that documents like those required to be submitted under the National Environmental Policy Act are enough to demonstrate ESA compliance.

Response See responses to Comment ID 0040.001.004 and 0075.001.004.2015 EPA MSGP Response to Comments June 4, 2015

118 Issue Category: Section 1.1.3
- Historic Properties Preservation

Comment ID 0040.001.005 Issue Category: 1.1.3

Author Name: Kevin Walgenbach Historic Properties Preservation

Organization: National Ready Mixed Concrete Association (NRMCA)

5. Historic Properties Preservation

- While NRMCA doesn't take issue with protecting historic properties, NRMCA does question the necessity of the new Appendix F procedures since the new procedures merely end up establishing the same information for a location as were established in the 2008 MSGP. Requiring a new procedure for determining the same information, when it has already been established using a known and efficient method, is arbitrary and capricious, and adds an unnecessary paperwork burden on

emp loyers of all sizes. NRMCA suggests allowing locations to continue using the same criteria selected in the 2008 MSGP without having to add another unnecessary step of following the Appendix F procedures. The new procedures offer no environmental benefit as well.

Response Where the EPA is the issuing authority for a permit with the potential to affect properties that are either listed or eligible for listing in the National Register of Historic Places, EPA is subject to Section 106 of the NHPA and relevant implementing regulations of 36 CFR Part 800. Section 106 requires Federal agencies to take into account the effects of their undertakings on historic properties and to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunit y to comment on such undertakings. EPA proposed changes to the historic properties provisions from the 2008 permit as a result of interactions with the ACHP, State Historic Preservations Offices (SHPOs), and Tribal Historic Preservation Offices (THPOs). Ho wever, the vast majority of facilities to be covered under the 2015 MSGP will have no potential to have effects on historic properties. Most facilities are existing dischargers that have already addressed NHPA issues, and EPA is not aware of any impacts on historic properties from activities covered under the 2008 MSGP. For these reasons, EPA has not finalized the proposed changes to the historic properties eligibility procedures in Part 1.1.4.6.

Comment ID 0070.001.005 Issue Category: 1.1.3

Author Name: Beth Goodnough Historic Properties Preservation

Organization: Western Fuels Association Inc.

C. Part 1.1.4.6 Protection of Historical Properties:

EPA' s rationale for modifying this part is unclear. EPA acknowledges that "it is not aware of any impacts on historic properties under the 2008 MSGP." [FN1] Yet, EPA suggests that "operators could undertake activities in connection with this permit that m ight affect historic properties if they install new control measures that involve subsurface disturbance. This is the only situation that EPA envisions where activities authorized in connection with this permit may affect historic properties." [FN2] Without any form of explanation of why the revisions are necessary or justified, especially in light of the absence of impacts from the 2008 MSGP, EPA should retain the language from the 2008 MSGP instead of finalizing the proposed revisions.

[FN1] Proposed 2013 MSGP Fact Sheet at 9 [FN2] Id.

Response2015 EPA MSGP Response to Comments June 4, 2015

119 See response to Comment ID 0040.001.005.

Comment ID 0071.001.004 Issue Category: 1.1.3

Author Name: Robert Barnes Historic Properties Preservation

Organization: Midas Gold Inc. (MGI)

3. Historic Properties Preservation

It is counter

- intuitive and not productive to delay or not allow permit coverage where newly constructed storm water control measures are needed to protect identified historic properties. The 30

- day timeline for a response from the State Historic Preservation Office (SHPO) and/or Tribal Historic Preservation Office (THPO) is a significant time constraint, not to mention the EPA review when SHPO/THPO comments are not received within 30 days. If a response is not received within 30 days, construction should be allowed to proceed with other appropriate mitigation and monitoring.

Response An operator’s coverage is not delayed when EPA or the SHPOs/THPOs do not respond within 30 days. The permit allows proposed dischargers that contacted the SHPO, THPO, or tribal representative to proceed with submitting the NOI without further consultation if there is no response within 30 days.

Comment ID 0086.001.008 Issue Category: 1.1.3

Author Name: Daniel Graham Historic Propertie s Preservation

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Section 1.1.4.6 Historic Properties Preservation: EPA's rationale for modifying this part is unclear. EPA acknowledges that "it is not aware of any impacts on historic properties under the 2008 MSGP."[FN12] Yet, EPA suggests that "operators could undertake activities in connection with this permit that might affect historic properties if they install new control measures that involve subsurface disturbance. This is the only situation that EPA envisions where activities authorized in connection with this per mit may affect historic properties."[FN13] Without any form of explanation of why the revisions are necessary or justified, especially in light of the absence of impacts from the 2008 MSGP, EPA should retain the language from the 2008 MSGP instead of finalizing the proposed revisions. In addition, EPA should either remove the last paragraph in this part or merge the paragraph into Criterion D. To the extent it merely repeats what is already set forth in Criterion D, EPA should delete this language as redundant. By leaving the paragraph as it is drafted, EPA could cause unnecessary confusion. If either Criteria A or B are satisfied, there is no need to contact a SHPO, THPO or other tribal representatives, let alone reach an agreement concerning appropriate mi tigation or prevention measures. There is no basis for including a

stand- alone paragraph at the end of this part that could be misinterpreted as modifying all four of the historic properties preservation criteria.

[FN12] Proposed 2013 MSGP Fact Sheet at 9.

[FN13] Id.

Response See response to Comment ID 0040.001.005

.

Comment ID 0093.001.015 Issue Category: 1.1.32015 EPA MSGP Response to Comments June 4, 2015

120 Author Name: Amanda Aspatore Historic Properties Preservation

Organization: National Mining Association (NMA)

Part 1.1.4.6: EPA's rationale for modifying this part is unclear. EPA acknowledges that "it is not aware of any impacts on historic properties under the 2008 MSGP." [FN20] Yet, EPA suggests that "operators

could undertake activities in connection with this permit that might affect historic properties if they install new control measures that involve subsurface disturbance. This is the only situation that EPA envisions where activities authorized in connection with this permit may affect historic properties." [FN21] Without any form of explanation as to why the revisions are necessary or justified, especially in light of the absence of impacts from the 2008 MSGP, EPA should retain the language from the 2008 MSGP instead of finalizing the proposed revisions. In addition, EPA should either remove the last paragraph in this part or merge the paragraph into Criterion D. To the extent it merely repeats what is already set forth in Criterion D, EPA should delete this language as redundant. By leaving the paragraph a s it is drafted, EPA could cause unnecessary confusion. For example, if either Criteria A or B are satisfied, there is no need to contact a SHPO, THPO or other tribal representatives, let alone reach an agreement concerning appropriate mitigation or prevention measures. There is no basis for including a stand

- alone paragraph at the end of this part that could be misinterpreted as modifying all four of the historic properties preservation criteria. If adopted, clarity in this regard is required.

[FN20] Pro posed 2013 MSGP Fact Sheet at 9.

[21] Id.

Response See response to Comment ID 0040.001.005

.

Comment ID 0094.001.006 Issue Category: 1.1.3

Author Name: Eric Fry Historic Properties Preservation

Organization: Peabody Energy

3) 1.1.4.6 Historic Properties Preservation. As with the ESA provlSlon above, Peabody notes this is a broadly applicable section where input has likely been provided to EPA from other agencies. All the same, the phrase "subsurface control measures" appears to be a new term, and EPA has not provided a definition for it. Peabody requests clarification and further explanation of this phrase.

Response The meaning of the term is clearly stated in the permit. Examples of subsurface stormwater controls

include dikes, berms, catch basins, ponds, ditches, trenches, culverts, land manipulation (contouring, sloping, and grading), channels, perimeter drains, and swales.2015 EPA MSGP Response to Comments June 4, 2015

121 Issue Category: Section 1.1.4
- Discharges to a Federal CERCLA Site

Comment ID 0022.001.002 Iss ue Category: 1.1.4

Author Name: Paul Wiegand Discharges to a Federal CERCLA Site

Organization: National Council for Air and Stream Improvement, Inc. (NCASI)

EPA is considering adding a requirement under the MSGP for permit holders, or those seeking coverage under the MSGP, to test for certain persistent, bioaccumulative or toxic (PBT) substances in stormwater in order to prevent the contamination or recontamination of aquatic sediments to levels that pose risk to aquatic life. The proposal specifically is "... to identify and list in the permit certain toxic pollutants of concern that are especially problematic and to make ineligible under the MSGP any discharge of these pollutants above the detection limit. The industrial operator would have to either eliminate such discharge or apply for an individual permit. The following toxic substances are under consideration for such a list and all are on EPA's Priority Per sistent Bioaccumulative and Toxic (PBT) pollutant list: DDT/DDD/DDE, Dioxins/furans, PCBs, Aldrin/dieldrin, Hexachlorobenzene, Mirex, Octachlorostyrene, Toxaphene and

Chlordane."

NCASI appreciates the Agency's concern for contamination of sediments by certain PBTs. However, NCASI believes that this particular proposal could make coverage under the general permit essentially impossible because of the ubiquity of many of the listed substances in the environment. It seems a virtual certainty that many stormwaters will be contaminated at quantifiable levels with at least some PCDDs/PCDFs and PCBs (and perhaps the legacy pesticides). For example, a 2010 report titled: "Control of Toxic Chemicals in Puget Sound, Phase 3 Data and Load Estimates," prepared by the Washington Department of Ecology (publication 11 -03- 010), clearly shows that a significant percent of the samples collected for this study had detectable levels of PCBs, including 100% of samples of stormwater from commercial/industrial lands. This study also showed that 63% of the samples of stormwater from comparatively pristine forested watersheds had detectable levels of PCBs, showing that there are significant sources of these substances that are not related to industrial activity (e.g., atmospheric deposition). Numerous other studies exist showing the ubiquity of the substances that might be subject to the provision that EPA is considering.

Response The PBT issue is a significant concern to EPA and that is why public comment and information about possible solutions was sought. For this permit, EPA has chosen to just concentrate on certain CERCLA sites in Region 10 as opposed to all permittees who could discharge toxic pollutants, as no viable proposal or options were received on how to regulate such pollutants. EPA does not have enough information to accurately gauge the extent of the problem nor what it would take, resource

- wise, to address it. Specifically requiring additional testing performed by operators is not feasible. While EPA has decided not to finalize a new provision addressing discharges PBT substances, EPA will consider the comments received for future permitting decisions.

Comment ID 0022.001.004 Issue Category: 1.1.4

Author Name: Paul Wiegand Discharges to a Federal CERCLA Site

Organization: National Council for Air and Stream Improvement, Inc. (NCASI)

EPA should consider the utility of other, existing, tools to address concerns regarding on

- going contamination of sediments. Ideally such tools would (a) identify sources of pollutants, (b) assess the real2015 EPA MSGP Response to Comments June 4, 2015

122 potential for those sources to contribute to sediment contaminant accumulation at the site of concern, and (c) allow consideration of the likelihood that measures do not exist to remediate stormwater where very low concentrations of these substances may be present due to causes beyond the reasonable control of the entity covered under the MSGP (i.e., borne from atmospheric deposition).

Response EPA is using existing CERCLA and CWA tools to address toxics discharges to surface waters, including sediments that could lead to recontamination of aquatic media at a CERCLA site that causes or contributes to an exceedance of a water quality standard. The CERCLA Site provision in Part 1.1.4.10 of the MSGP is intended to result in better coordination and information gathering and exchange between the proposed dischargers and both the EPA permit and cleanup programs to determine if additional controls or monitoring may be appropriate, or if an individual permit might be required. Information generated by the cleanup investigation and cleanup process will inform th e permit decision. Likewise, monitoring data from the permit may help inform the cleanup process.

Comment ID 0029.001.004 Issue Category: 1.1.4

Author Name: Kim Cox Discharges to a Federal CERCLA Site

Organization: City of Portland Environmental Services

BES in general supports the EPA approch on three issues identified for response:

A. Discharges to CERCLA sites. BES in general supports the EPA approach on the three issues identified for response: A. Discharges to CERCLA sites. BES supports EPA's proposal to require early EPA consultation for industrial NPDES MGP sites who discharge to or across CERCLA listed sites. We support the proposal to require individual permits, but only for sites with high risk factors to discharge legacy pollutants of concern.

The City of Portland has spent over 10 years assessing the potential of stormwater to convey contamination to a portion of the Willamette River know as the Portland Harbor Superfund site. Control of legacy pollutant discharges has been identified as a primary issue of concern for recontamination for

the listed section of the Willamette River. Ability to use industrial NPDES stormwater discharge permits to address discharge of legacy pollutants would be very helpful.

Because there can be many permit holders discharging to a CERCLA

- listed site, it may be too cumbersome to require indivi dual permits for all dischargers. An MGP addressing legacy pollutants is a better management tool for these dischargers and has proven to be effective in the state of Oregon.

Response EPA notes the commenter’s support for the provision. EPA anticipates that the CERCLA Site provision will apply to a small number of facilities and that these facilities will be able to continue to avail themselves of the general permit after appropriate control measures (i.e., BMPs) are agreed upon, as necessary, between the respective dischargers and EPA’s Region 10 Office. The use of individual permits may be required at some facilities if the general permit is determined not to be a sufficient vehicle for regulating the discharge to a CERCLA Site because of WQS concerns.

Comment ID 0040.001.012 Issue Category: 1.1.4

Author Name: Kevin Walgenbach Discharges to a Federal CERCLA Site

Organization: National Ready Mixed Concrete Association (NRMCA)2015 EPA MSGP Response to Comments June 4, 2015

123 12. Discharges to a CERCLA Site

- At this time NRMCA withholds comments on this section.

Response No response necessary.

Comment ID 0042.001.002 Issue Category: 1.1.4

Author Name: Joshua Rodriguez Discharges to a Federal CERCLA Site

Organization: District Department of the Environment

Part 1.1.4.10 For Discharges to a Federal CERCLA Site

DDOE agrees with the inclusion of this permit condition and supports its intention. DDOE recommends the expansion of the definition of sites that may affect discharges for which this condition may apply. Many sites not defined as "CERCLA Sites" by Appendix A are still undergoing remediation and the current language of the condition would not all for the control of discharges through these sites to avoid sediment recontamination. Additionally, Appendix P only references CERCLA Sites within Region 10. Is

this the only EPA Region that will be covered by this condition?

Response EPA acknowledges the commenter’s support for this provision.

The definition of CERCLA Site includes sites undergoing investigation and remediation under the federal Comprehensive Env ironmental Response Compensation and Liability Act. It includes sites that are listed on the National Priorities List in accordance with Section 105 of CERCLA, 42 U.S.C. §9605, and also includes any site being addressed by a state, private party or other f ederal agency under CERCLA not listed on the NPL. The definition includes sites using an agreement consistent with the Superfund Alternative Approach Guidance. The definition does not include sites being investigated and remediated under a state cleanup law as EPA cannot require a state agency to conduct the coordination between the State water program and cleanup program this provision anticipates. However, if a state wants this provision to apply to state cleanup sites, it could require it in its 401 cert ification of this permit.

While EPA is concerned that CERCLA Site recontamination from MSGP

- authorized discharges may be an issue in all the EPA Regions where the MSGP applies, EPA is limiting Part 1.1.4.10 to discharges to

certain CERCLA sites in EPA R egion 10 for this permit cycle. EPA has extensive information that stormwater discharges are a source of CERCLA Site recontamination in Region 10. EPA Region 10 has seen both the actual recontamination of Superfund Sites from stormwater outfalls and the po tential for recontamination from source control information gathered at Superfund Sites not yet cleaned up. EPA’s Region 10 Office also has expertise in determining site

- specific measures that are necessary to ensure industrial stormwater discharges covere d under the MSGP are not leading to recontamination of aquatic media at CERCLA Sites such that they cause or contribute to an exceedance of a water quality standard. During this permit cycle, EPA will assess the need for applying this provision to other Re gions in a future version of the MSGP. Other EPA Regions can also use information from the 2015 MSGP to enhance their ability to implement this provision in the future if they find they have CERCLA Sites with such

contamination/recontamination concerns.

To identify which CERCLA Sites in Region 10 Part 1.1.4.10 applies, EPA started with the Tier 1 and 2 sediment sites, then overlaid them with areas of federal CWA authority in Region 10. The sediment site tiering system is based on national EPA Office of Soli d Waste and Emergency Response (OSWER) guidance on managing sediment cleanups, which establishes the tiering system for sediment sites that will have enhanced input and oversight by EPA. These sites contain a large amount of contaminated sediment,2015 EPA MSGP Response to Comments June 4, 2015

124 are expe nsive to remediate, and often impact significant numbers of humans and other ecological receptors. Tier 1 sediment sites are the largest contaminated sediment sites the CERCLA program is addressing. The Tier 2 sediment sites are in the evaluation process and are anticipated to meet the Tier 1 site criteria. The size of these sites makes it more likely that there will be multiple sources of contamination, including NPDES permitted outfalls. EPA Region 10 is actively engaged in the clean -up process at these s ites and anticipates that when cleanup efforts are complete, these sites could have a higher probability of recontamination from NPDES permitted outfalls.

Comment ID 0042.001.003 Issue Category: 1.1.4

Author Name: Joshua Rodriguez Discharges to a Federal CERCLA Site

Organization: District Department of the Environment

Potential Permit Requirements for Certain Toxic Pollutants in Industrial Stormwater Discharges

DDOE agrees with the proposed permitting conditions and supports the development of a toxic pollutant list and the requirement under the MSGP to eliminate all discharge of pollutants on this list. DDOE recommends the addition of the potentially carcinogenic PAHs (benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, indeno(1,2,3 -c,d)pyrene) and chromium (VI). Additionally, DDOE recommends that EPA references 40 CFR 136 when identifying

detection limi ts for the prohibited pollutants.

Response See response to Comment ID 0022.001.002.

Comment ID 0059.001.004 Issue Category: 1.1.4

Author Name: Donald Schregardus Discharges to a Federal CERCLA Site

Organization: Department of Defense, Department of the Navy

4. Discharges to Federal CERCLA Sites

Proposed Requirement or Section Addressed: 1.1.4.1 0, For Storm water Discharges to a Federal

CERCLA Site.

Comment: Facilities discharging to "federal CERCLA sites" are ineligible for coverage.

Discussion: While DoD understands the concern that stormwater discharges not contribute the same pollutants to waterbodies undergoing significant cleanup actions, as currently structured, the provision may significantly decrease federal agency use & benefits of the general permit. The proposed definition of "CERCLA site" (" facility as defined in Section 1 01 (9) of CERCLA ... that is undergoing a remedial investigation and feasibility study, or for which a Record of Decision for remedial action has been is sued in accordance with the National Contingency Plan .... ") is defined so broadly that every federal agency cleanup site could be included. The intent of permit condition 1.1.4.1 0 and Appendix P appear to limit what is a "federal CERCLA Site" to just th e waterbodies listed in Appendix P; however, this list is still being compiled, and the current entries are large waterbodies. The connection between "highly toxic" stormwater pollutants and the constituents of concern at these ongoing CERCLA cleanups has also not

been linked.

Recommendation: Restructure this provision so that the specific "highly toxic" pollutants and2015 EPA MSGP Response to Comments June 4, 2015

125 contaminants that "may present an imminent and substantial endangerment" (quotes from page 59676 of Federal Register notice) are identifie d for each waterbody listed in Appendix P. Consider using the CERCLA National Priorities List for identifying waterbodies with significant contamination and ongoing cleanups. This would result in only stormwater containing the identified toxic pollutant th at is discharged into the identified waterbody, being presumed to be ineligible for the MSGP. This presumption could still be overcome through notice and an EPA determination that you are eligible for the MSGP.

Response See the responses to Comment ID 0042.001.002 and 0029.001.004.

There is no technical or legal basis to limit the definition of CERCLA Site or this provision to only sites listed on the NPL because there is no requirement in the law that the most contaminated sites be listed on

the NPL. The listing process does not determine what contaminants or media present unacceptable risk, but rather the investigation, risk assessment process, and feasibility study required by CERCLA and in compliance with the National Contingency Plan (40 CFR Part 300) is how the contaminant information is developed. Any site meeting the definition of CERCLA Site in the permit should be following the NCP

process.

Comment ID 0066.001.005 Issue Category: 1.1.4

Author Name: Timothy Carlstedt Discharges to a Federal CERCLA Site

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 1.1.4.10 For Discharges to a Federal CERCLA Site

This section imposes a new eligibility requirement: if a discharger discharges to a federal CERCLA Site, he or she is ineligible for coverage under the 2013 MSGP unless the applicable EPA Regional Office determines that the discharge will not lead to recontamination of aquatic media at the Site. UWAG understands EPA's concern with recontamination, but suggests that such a precondition is likely beyond EPA's CWA authority. Provided the discharge meets all relevant standards (e.g., technology and water

qualit y based limitations) by complying with the 2013 MSGP's terms and conditions, EPA has no basis for precluding coverage simply because the discharge may be inconsistent with the remedial goals of the Superfund Site.

UWAG also objects to the statement in the Fact Sheet that "a permittee discharges to a Federal CERCLA Site if the permittee has been notified by EPA, another governmental agency, or a potentially responsible party under CERCLA that it has potential liability for response costs" at the Site. (See Fact Sheet at p. 11.) A permittee under the 2013 MSGP could be a PRP at a Superfund site for reasons completely separate from its stormwater discharges.

Response It is within EPA’s authority to determine whether a discharge is eligible for coverage und er a general permit issued under Section 402 of the Clean Water Act, and implementing regulations found at 40 CFR Part 122, and in particular the implementing regulations related to general permits, 40 CFR 122.28. Regarding discharges to a CERCLA Site, it is within EPA’s authority to seek a demonstration, prior to authorization, that a discharge will not cause, or have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard, either numeric or narrative, or impair a designated use or violate antidegradation requirements. Water quality standards can include narrative standards such as “no toxics in toxics amounts” or “no deleterious substances or deposits that impact designated uses” that may be exceeded at CERCLA Sites and may be violated by a discharge that contributes to the2015 EPA MSGP Response to Comments June 4, 2015

126 exceedance. See CWA section 301(b)(1)(C) and EPA’s permitting regulations at 40 CFR sections 122.4(d), 122.4(i), and 122.44(d). EPA acknowledges that the determination of PRP status under CERCLA is not necessarily linked to stormwater discharges. However, if an applicant has received such a PRP notice and has a stormwater discharge to one of the CERCLA sites listed in Appendix P, the evaluation under 1.1.4.10 must be

undertaken.

Com ment ID 0067.001.004 Issue Category: 1.1.4

Author Name: Timothy Pohle Discharges to a Federal CERCLA Site

Organization: Airlines for America (A4A)

3. Section 1.1.4.10

- For Discharges to a Federal CERCLA Site

The Draft Permit contains the following language concerning discharges to CERCLA Sites.

"In determining eligibility for coverage under this Part, the EPA Regional Office may evaluate whether you have included appropriate controls and implementation procedures designed to ensure your discharge will not lead to recontamination of aquatic media at the CERCLA Site."

We do not believe that CERCLA affords EPA authority to incorporate terms in an NPDES permit that are not otherwise authorized by the Clean Water Act. We understand this language to reflect the Agency's intention to protect CERLCA sites to the greatest degree possible under the authority of the CWA. If this section is intended to do more than that, EPA should provide notice of that further intention so that the public may evaluate and comment on it.

Response The MSGP’s goal is to ensure permitted discharges meet WQS. It has provisions (both eligibility conditions and effluent limits) to protect WQS, including for waters that have undergone CERCL A clean

ups. This makes the CERCLA provisions appropriate for the MSGP because they are tied to meeting WQS. If a facility has discharges that could cause WQS in CERCLA receiving waters to not be met, then EPA may deem the MSGP inappropriate for such facilities. In the commenter’s words, this section is meant to protect CERCLA sites to the greatest degree possible under the authority of the CWA. See also
response to Comment ID 0066.001.005.

Comment ID 0068.001.002 Issue Category: 1.1.4

Author Name: Marilyn Guthrie Discharges to a Federal CERCLA Site

Organization: Port of Seattle, Washington

Specific Technical Comments

1. Discharges to a CERCLA Site

The draft MSGP makes facilities discharging to CERCLA sites (listed in Appendix P) ineligible for coverage under the permit unless the applicable EPA Regional Office is:

a) first notified, and b) determines that the facility is eligible for permit cover age.

In determining eligibility for coverage, the EPA Regional Office may evaluate whether the facility has2015 EPA MSGP Response to Comments June 4, 2015

127 included appropriate controls and implementation procedures designed to ensure that the discharge will not lead to recontamination of aquatic media at the CERCLA Site.

As noted in Appendix P of the draft MSGP, the Seattle area has several large waterbodies listed under CERCLA (e.g., Duwamish Waterway, Puget Sound, Elliott Bay) for metals (i.e., Pb, As, Cu, Hg, Zn, TBT) and organics (i.e., HPAHs, LPAHs, PCBs, phthalates, dioxin/furans). Although we recognize the intent of the permit to ensure that discharges will not lead to the recontamination of the restored aquatic media, there is concern about how this could be interpreted by regulatory agencies and the public. Many of these contaminants are common in stormwater and will be present at some measurable concentration in nearly every stormwater (and rainwater) sample given the diffuse nature of these sources (e.g. atmospheric). Determining potential for recontamination of cleanup sites will be especially challenging hurdle to overcome as sites in Washington move to lower sediment cleanup standards derived from natural or regional background for protection of human health. Given the complexity of the i ssues related to determining recontamination, the variations of responsible regulatory agencies (state vs federal) for this issue depending on site, the Port is concerned that adding this requirement to the MSGP will create

additional hurdles in this and o ther stormwater permit programs that may be impossible to meet, that could be difficult to overcome and may not be appropriate under the CWA authority.

Currently, the state of Washington is also revising their water quality standards to incorporate human health criteria and recognize for many chemicals the revised levels will not be achievable. Because of this Washington State is examining mechanisms such as compliance schedules and variances for water bodies in permits to help address this issue. Other w estern states, such as Oregon and Idaho, have also recently undergone similar changes. Given the uniqueness of each state' s water quality standards and sediment cleanup standards, the language as currently presented in the MSGP on recontamination presents a unique challenge to western states. It may be more appropriate for the MSGP to address potential recontamination by either 1) making consultation language more general instead of requiring a determination of recontamination or 2) providing more specific guidance on how to address this in states with background based cleanup standards in water or sediment.

Connecting the presence of contaminates in stormwater and connecting that presence to recontamination is difficult. The permit proposes no methods by which to do that accurately and effectively. As a result, this determination could be done in an overly co nservative manner and result in a significant and potentially unnecessary impact to businesses and the economy.

In addition, we are concerned that facilities adjacent to water bodies that directly discharge to aquatic cleanup sites will likely be held to different standards than facilities further away from the water body that discharge further up the stormwater pipe system. This would place an unfair permitting burden on those near shore properties, compared to sites further inland. These properties tend to be water based maritime industries, and therefore this requirement will result in an undue focus on this specific industry sector.

The Agency also requested comment on the concept of making any discharge which contains a "particularly problematic pol lutant" above the detection limit ineligible under the MSGP. Making a stormwater discharge ineligible under the MSGP because a specific pollutant of concern is measured above the "detection limit" is a scientifically inappropriate approach. This is because analyte-specific detection limits are not fixed values. They vary among the 40CFR136 approved methods, between laboratories and analysts, and they change over time as new methods that are able to quantify incredibly low concentrations of specific chemical s are promulgated. Instead, any such "trigger" making a discharger ineligible under the MSGP must be risk

- based, rather than a simplistic analytical "detection." In addition, just because a pollutant is detected does not necessarily mean that it will cause impact.

Response2015 EPA MSGP Response to Comments June 4, 2015

128 Just as EPA has determined in the MSGP that discharges into impaired waterbodies must incorporate stormwater requirements from Total Maximum Daily Load (TMDL) plans, or, if no TMDL, consider additional controls or monitoring prior to a TMDL, discharges to the CERCLA sites that EPA has identified reasonably necessitate extra scrutiny where it is known that releases of hazardous substances to surface waters could cause or contribute to an exceedance of a water quality standard. As stated above and in the fact sheet, all EPA is doing is using its CWA authority to the fullest in order to protect these sites to the best of its ability.

EPA anticipates that most permittees subject to Part 1.1.4.10 will be able to obtain MSGP coverage

without difficulty. Proposed dischargers seeking authorization to discharge stormwater to one of the identified CERCLA Sites in Appendix P would be required to first notify the appropriate EPA Regional Office, in this case Region 10. In determining eligibility fo r coverage under this Part, the EPA Regional Office may evaluate whether the discharger has in place sufficient controls and implementation procedures (e.g., enhanced controls, corrective actions, monitoring requirements, and/or numeric benchmarks or effluent limits) to ensure that the proposed discharge will not recontaminate sediments or other aquatic media being remediated under CERCLA. It is anticipated that through the coordination with the EPA Regional Office, existing information will be evaluated about risks at the CERCLA Site and the sources known or suspected, and how that relates to water quality standards and the stormwater discharge.

Site -by- site, the CERCLA studies will likely be in different stages, whereas, at one site the contaminants of concern are known and sources are known, and at another site, the investigation is still be under way and not as much is known. With regard to a federal agency

- lead cleanup, the federal agency/applicant, who is conducting the CERCLA studies, is in the best po sition to provide information to the EPA Regional Office about what contamination has been found at the CERCLA Site and the remedy being undertaken and what it known regarding pollutants in its discharge. It also is anticipated that insufficient

informatio n may be known about what toxics are in the industrial stormwater discharge and additional monitoring may be needed under to determine if the stormwater water may be a source of recontamination. EPA anticipates that the CERCLA Site provision will apply to a small number of facilities and that these facilities will be able to continue to avail themselves of the general permit after appropriate corrective actions are agreed. The use of individual permits may be required at some facilities if the general permit is determined not to be a sufficient vehicle for regulating the discharge to a

CERCLA Site.

The need to address potential CERCLA site recontamination has been recognized by other state and tribal water quality authorities. The State of Washington inclu ded in its recently reissued industrial stormwater general permit eligibility restrictions and additional sampling requirements for discharges to sediment cleanup waterbodies (see http://www.ecy.wa.gov/programs/wq/stormwater/industrial/ISGPFinal2015.pdf ). In addition, the Puyallup Tribe of Indians included in its 401 CWA certification on the EPA MSGP a condition that permittees discharging to Commencement Bay, Near Shore/Tidal Flats contact the tribe and EPA prior to discharge.

The MSGP provision applies to discharges into shared conveyances that discharge to CERCLA Sites so that it does not only apply to facilities discharging directly to surface waters in CERCLA Sit es.

See also response to Comment ID 0022.001.002 regarding EPA’s request for comment on a permitting approach for particularly problematic pollutants.

Comment ID 0071.001.006 Issue Category: 1.1.4

Author Name: Robert Barnes Discharges to a Federal CERCLA Site

Organization: Midas Gold Inc. (MGI)2015 EPA MSGP Response to Comments June 4, 2015

129 5. Discharges to a Federal CERCLA Site

This proposed regulation that would render an action area ineligible for coverage under MSGP is contrary to the goals of the Clean Water Act (CWA), which ultimately require a permit for any discharge to the waters of the U.S. Most existing mine sites in the western U.S. are either Brownfield sites, or are located adjacent to these sites. In order to legally and efficiently manage run

- on and run

- off discharges and related pollutants in these areas, a mining operator must be able to obtain a permit. Virtually any placement of a pollutant into regulated water constitutes an "addition". There is no requirement that pollutants originate from an outside source or be "new" to be subject to NPDES and storm water permitting regulations.

The term pollutant as defined by the CWA includes essentially all types of waste. Thus, even high quality ground water in an action area that might be discharged from a mine will almost certainly contain trace metals and dissolved or suspended solids. These may be treated under the NPDES permit program consistent with the goals of the CWA, but only if the operator can obtain a permit. This is particularly the case since the proposed permit provides for EPA to also require additional controls to allow permit

coverage.

Response

The c ommenter must understand that pollutant controls are required only to the extent to protect WQS. Therefore, not all pollutants at any level must necessarily be addressed by permittees in order to meet the eligibility requirement. In addition, EPA expects t hat this provision will apply to a limited number of sites who will already be working with clean up authorities. EPA does not anticipate that any facility will lose permit coverage but additional controls and monitoring may be necessary to ensure that the facility’s stormwater discharges do not cause or contribute to a WQS exceedance.

Comment ID 0072.001.004 Issue Category: 1.1.4

Author Name: Leah Pilconis Discharges to a Federal CERCLA Site

Organization: The Associated General Contractors of America (AGC of America)

Discharges to CERCLA (Superfund) Sites

Under EPA's 2013 draft MSGP, general permit coverage would not be available to operators of industrial sites that discharge stormwater "to a federal CERCLA Site ... unless you notify your applicable EPA Regional Office in advance and the EPA Regional Office determines that you are eligible for permit coverage." Prospectively, the 2013 draft MSGP also would require EPA to reassess sites/facilities that already enjoy general permit coverage if "it is determined that your facility discharges to a CERCLA site ... after you have obtained coverage under this permit." [FN8]

AGC members have raised several concerns with the CERCLA

- related limitations on permit coverage. These include (1) the lack of clarity on what constitutes a CERCLA site, (2) the potential for EPA to withdrawal general permit coverage from a fully operational site and (3) the resulting loss of protection for "federally permitted releases" from CERCLA's strict joint

- andseveral liability scheme. Each of these concerns is explained in detail below.

F irst, AGC questions what constitutes a "CERCLA Site." It is unclear how members of the regulated community should determine now

- and during the life of the MSGP

- whether or not they are discharging stormwater to a "CERCLA Site" for the purpose of complying w ith the MSGP. Several times in the 20132015 EPA MSGP Response to Comments June 4, 2015

130 draft MSGP and draft MSGP Fact Sheet, EPA refers to "a federal CERCLA Site as defined in Appendix A and referenced in Appendix P..." (emphasis added).

[FN8] See 2013 Draft MSGP Section 1.1.

Response EPA has clarified what is and who discharges to a CERCLA site. See response to Comment ID

0042.001.002.

Comment ID 0072.001.007 Issue Category: 1.1.4

Author Name: Leah Pilconis Discharges to a Federal CERCLA Site

Organization: The Associated General Contractors of America (AGC of America)

For purposes of the 2013 draft MSGP, it is very unclear what EPA actually means when it refers to a "CERCLA Site." Despite the definition provided it Appendix A, upon further analysis of the 2013 draft MSGP (particularly Appendix P), it appears that what EPA actually means by "CERCLA Site" is a site that meets the following three criteria: (1) that are on the NPL at any time during the life of the permit, (2) that are located within an area where EPA remains the NPDES permitting authority and (3) that inclu de a waterbody cleanup. But even if this were EPA's intention, it would be unduly burdensome for the regulated community to identify such sites.

Second, AGC is concerned that EPA will use the proposed CERCLA

- eligibility provision after a company has relied on a duly issued permit. AGC objects to an open

- ended eligibility requirement: namely, one that would reserve for EPA the right to shut down any site that is already operating under EPA's MSGP, if the agency later determines that the site/facility is discharging stormwater to a newly listed CERCLA site (i.e., a site that was put on the NPL after EPA published its final MSGP).

Placing the certainty of uninterrupted permit coverage on conditions for which the permittee has no control will place permittee s in the untenable position of not being able to rely on their NPDES permit as a means for measuring their Clean Water Act compliance. The draft permit states that EPA would need to "ensure that your discharges will not lead to recontamination of aquatic media at the CERCLA Site"; however, no information is provided on how this determination will be reached or how long it will take. Further, it is easy to foresee opponents of specific projects bringing citizens suits to compel the EPA to find that discharge s will lead to recontamination of aquatic media, mostly likely seeking preliminary injunctions against continued construction while their information is considered. Any lapse in permit coverage would certainly impact the necessary effort to repair, replace and upgrade public infrastructure.

Third, if a site were to lose its permit coverage, it would also lose any and all protection under CERCLA Section 107, which exempts from CERCLA liability any "response costs or damage resulting from a federally permit ted release." CERCLA Section 101(10)(A) defines a "federally permitted release" as including discharges "in compliance with" a permit issued under the NPDES program in CWA Section

402.

A June 2010 federal district court decision brought to the forefront the threat of CERCLA or "Superfund" liability for public and private parties that design and operate stormwater drainage systems to discharge highway runoff to the environment. The U.S. District Court for the Western District of Washington

handed down a de cision in United States v. Washington State Department of Transportation (WSDOT) [FN11] that is forcing the state agency to reimburse the United States for almost $9.36 million in clean -up and related costs because the state's highways emptied untreated, p olluted stormwater into Tacoma's Thea2015 EPA MSGP Response to Comments June 4, 2015

131 Foss Waterway/Commencement Bay

- which is now a listed Superfund site. AGC has been monitoring the impact of this court case on contractors engaged in design

- build projects. WSDOT argued that it qualified

for CERCLA's "f ederally

- permitted release exemption"

- arguing that it had operated the stormwater drainage system under a state

- issued NPDES permit since 1995, in addition to a municipal stormwater permit, and that any discharges from the stormwater system complied with the CWA. In a follow -up decision on the same case from spring 2011, the court decided that WSDOT was only liable for the discharges made before the NPDES permit was issued; however, the impossibility of dividing which discharges were made pre

- permit and pos t- permit ultimately resulted in liability for all of it.

This case opened up the possibility that anyone who designs, builds or operates stormwater drainage systems is at a risk for liability, even if they did not personally release any hazardous substance. AGC has educated construction professionals that design and build stormwater systems in the vicinity of aquatic Superfund sites to ensure that their activities are in compliance with federal permitting schemes and to take steps designed to prevent and/ or limit hazardous substances from entering their stormwater systems. However, working within NPDES discharge permits may limit liability only for actions taken under the permit. By not being able to reasonably divide pre

- and post

- permit discharges, if an y discharge occurs without NPDES discharge permit coverage it would render the "federally

- permitted release" exemption to CERCLA nearly useless.

[FN11] See http://news.agc.org/wp -content/uploads/2012/05/US-v- Wash -DOT-case.pdf.

Response See response to Comment ID 0042.001.002 and 0068.001.002. As the permit makes clear, facilities that have correctly established eligibility for permit coverage will not lose coverage if, at some later date, EPA

determines there are CERCLA issues.

The CER CLA eligibility provision is intended to establish appropriate controls or proecdures under the authority of the CWA for any discharge that may cause, or have the reasonable potential to cause, or contribute to an excursion above any applicable water quali ty standard, that includes numeric and narrative standards, designated uses and antidegradation requirements at a CERLCA site listed in Appendix P. Any facility that is found ineligible for coverage under the 2015 MSGP will have coverage under the 2008 MSGP administratively extended until such time as either

1. Appopriate controls to address the discharge is agreed; or

2. It is determined that an individual permit is needed to control the discharge and is issued. EPA expects that there will be a limited number of facilities to which the CERCLA provisions will apply and that, given that these facilities likely are all working with clean up agencies already, corrective action plans will be developed rapidly. EPA does not anticipate the need for individual permits for many facilities, but that is an option under the NPDES program.

Comment ID 0074.001.001 Issue Category: 1.1.4

Author Name: Burl Ackerman Discharges to a Federal CERCLA Site

Organization: J.R. Simplot Company

Part 1.14.10 Discharges to a Federal CERCLA Site

Simplot requests Part 1.14.10 be deleted from the permit. EPA has not provided any technical support or connection between insignificant levels of pollutants in industrial stormwater discharges and

contami nation of aquatic media.

Response2015 EPA MSGP Response to Comments June 4, 2015

132 EPA disagrees and has included additional information supporting this provision in the fact sheet, and has included additional technical support in the permit’s public docket.

Comment ID 0075.001.006 Issue Category: 1.1.4

Author Name: Claudio Ternieden Discharges to a Federal CERCLA Site

Organization: Water Environment Federation (WEF)

7. Corrective Action

a. WEF supports the proposal to require early EPA consultation for industrial NPDES MSGP sites that discharge to or across CERCLA listed sites. We support the proposal to require individual permits for any site discharging the listed legacy pollutants of c oncern in its stormwater. Due to the complexities in coordinating efforts on discharges to a CERCLA listed site, individual permits that allow more negotiation about coverage seem the most appropriate permitting tool than the MSGP;

b. WEF notes that the basis for selection of the CERCLA sites listed in Appendix P should be indicated as well as the selection criteria and process used if any additional CERCLA sites will be added in the future.

Response EPA acknowledges the commenter’s support for this provision. Regarding EPA’s request for comment regarding the listed legacy pollutants of concern, see response to Comment ID 0022.001.002. The commenter’s suggestions to incorporate the selection criteria for the CERCLA sites listed in Appendix P

have been a dded in the Fact Sheet.

Comment ID 0081.001.001 Issue Category: 1.1.4

Author Name: Jack Waggener and Peter Ciarleglio Discharges to a Federal CERCLA Site

Organization: URS Corporation

On pages 13 and 14 of the proposed 2013 MSGP Fact Sheet, the following two paragraphs propose an additional MSGP Option for discussion and comment:

"EPA is concerned that current 2008 and proposed 2013 Multi

- Sector General Permit requirements may

not ade quately prevent toxic pollutants in stormwater discharges from causing sediment contamination and recontamination of Superfund cleanup sites and/or presenting an imminent and substantial endangerment to human health or welfare or the environment. EPA has added a new provision to the proposed 2013 MSGP at 1.1.4.10 to attempt to address this issue with respect to present and future Superfund sites. However, the possibility of certain, particularly problematic toxic pollutants contaminating or re -contaminating present or future Superfund sites, or presenting an imminent and substantial endangerment to human health or welfare or the environment, is still of great concern to EPA. One approach under consideration is to identify and list in the permit certain toxic pollutants of concern that are especially problematic and to make ineligible under the MSGP any discharge of these pollutants above the detection limit. The industrial operator would have to either eliminate such discharge or apply for an individual permit. The following toxic substances are under consideration for such a list and all are on EPA's Priority Persistent Bioaccumulative and Toxic (PBT) pollutant list: DDT/DDD/DDE, Dioxins/furans, PCBs, Aldrin/dieldrin, Hexachlorobenzene, Mirx, Octachlorostyren e, Toxaphene and

Chlordane."

"EPA requests comment on this approach under consideration to address the situation where highly toxic2015 EPA MSGP Response to Comments June 4, 2015

133 pollutants in stormwater discharges are linked to sediment contamination that may re

- contaminate or over time create future Superfund sites or that present or may present an imminent and substantial endangerment to human health or welfare or the environment. EPA also requests comments on the proposed candidate chemicals. Additionally, EPA seeks comments on alternative approaches to address

this issue."

We regard the above proposal as unnecessary, unworkable, and impractical. It will result in the addition of a major new burden and expense to the MSGP process. The following are a few specific issues that address these points.

1. The proposal states there can be no discharge of any PBT substance above the "detection limit". Detection limits by definition are not even quantifiable results, and many of the PBTs (i.e. dioxins/furans, PCBs, and experimentally most of the other PB Ts) can be analyzed using high resolution methods capable of detecting (though not necessarily quantifying) concentrations at or below the parts per quadrillion level. There in fact may be no such thing as an "undetected" sample for the full congener lists of these compounds on samples from any site. Even laboratory blanks for dioxins, furans, and PCBs (using high resolution GCMS methods) routinely have a few congeners detected at extremely low concentration levels. In recent years, persistent trace detections of some dioxin, furan, and PCB congeners in samples from pristine locations has lead many to rethink whether certain natural processes (forest fires, lightning strikes) might contribute to very low levels of contamination for these compounds.

2. The PBT proposal also seems to apply to every single industrial facility, regardless as to whether there is any history of the industrial site ever having manufactured, used, or been contaminated by any of these compounds. This greatly increases the likelihood of false positive analyses described above.

3. The penalty for discharge of "any detectable quantity of PBTs" under consideration is very extreme. With detections at extremely low concentrations being very common, most facilities may likely lose their

M SGP Permit and be forced to apply for an individual permit, with enforcement limits for PBTs.

4. EPA has never set an actual regulatory limit at the defined method detection limit (MDL), because that number by definition is not quantifiable. (There have been limits set at the quantitation level for an approved method, but not the MDL.) In a roundabout manner, this proposal does just that, since in effect, any detectable result will require a special individual permit.

5. The costs of these analyses are very high; the cost per sample could easily exceed $2000. Full congener dioxin/furans by high resolution GCMS cost about $800 each; Method 1668 PCBs, a separate test, cost even more for the full congener list. The various pesticides and other chlorinated compounds on the PBT list require at least one additional trace level test, and possibly more than one.

6. The various other chlorinated compounds on the PBT list: the pesticides, octochlorostyrene, and hexachlorobenzene, have other issues. The lowest det ection level analyses using a currently approved method for these compounds are by GC only, not GCMS. The identity of the compounds, especially around the MDL, often cannot be fully confirmed due to chromatographic abnormalities, and the results are often qualified as "presumptive". High resolution GCMS methods have not yet been approved by EPA for these compounds. The usefulness of requiring analyses for these pesticides that have been banned in the US for almost fifty years is also highly questionable.

7. Finally, the concern EPA has about "re

- contamination" of Superfund sites does not fit the proposed remedy. Most Superfund sites are remediated to certain target concentrations that are still within the measurable analytical range, i.e. usually orders of magnitude higher than trace parts -per-quadrillion detection levels. The concern that stormwater runoff at extremely low concentrations will somehow "re

-2015 EPA MSGP Response to Comments June 4, 2015

134 contaminate" a Superfund site seems misplaced.

Response See response to Comment ID 0022.001.002. Add itionally, EPA has extensive information that stormwater discharges are a source of CERCLA Site recontamination in EPA Region 10. See the fact sheet and

docket for additional information.

Comment ID 0085.001.015 Issue Category: 1.1.4

Author Name: Zachary Griefen et al. Discharges to a Federal CERCLA Site

Organization: Conservation Law Foundation et al.

B. EPA should clarify the CERCLA site exclusion

Commenters support the CERCLA site exclusion at Part 1.1.4.10 of the Permit, but believe it should be strengthened by expanding the exclusion to cover all CERCLA facilities in the United States, clarifying that the exclusion applies to discharges to CERCLA sites conveyed via combined sewer overflows, and clarifying that discharges of reportable quantities of hazardous substances or oil from MSGP -covered facilities are not "federally permitted releases" under Section 103 of CERCLA and are not exempt from

rep orting and other CERCLA requirements.

The MSGP contains a conditional exclusion from eligibility to seek coverage under the permit for discharges to certain specified CERCLA (Superfund) sites. [FN72] The exclusion is narrowly drafted however to only apply to twelve CERCLA sites, all located in EPA Region 10. The principle that EPA expresses behind this exclusion is sound:

Source sampling and sediment data from some NPDES outfalls indicate exceedances of sediment cleanup goals established for CERCLA Site s. NPDES permits, particularly general permits, may not control discharges sufficiently to avoid sediment recontamination because most effluent limits are written to protect the water column and not with particular regard to sediment impacts or contaminati on. Likewise, NPDES permits, particularly general permits, may not require monitoring sufficient to determine the effects of discharges on sediment quality and the aquatic organisms that live in or feed on the bottom of waterbodies. As a result, after exte nsive and costly clean

- up of federal CERCLA Sites, these sites can be recontaminated by NPDES discharges. [FN73]

This logic applies equally outside of Region 10. Throughout the United States, industrial facilities discharge high levels of pollutants that are likely to contaminate or recontaminate sediments in waters across the country, and to present an imminent and substantial endangerment to human health or welfare or the environment. Many of these pollutants, such as PAHs, are extremely common at CERCL A sites and are often the focus of much remediation work. Other pollutants frequently discharged from industrial facilities, such as PCBs, other organic toxicants and metals including lead and cadmium, tend to bioaccumulate in receiving aquatic ecosystems. Therefore, EPA should expand the exclusion in Section 1.1.4.10 to cover not just presently

- listed CERCLA sites in Region 10, but all CERCLA sites throughout the United States, including any added to the National Priorities List during the term of this per mit.

Further, EPA should clarify that the exclusion applies to discharges conveyed to CERCLA sites via combined sewer overflows. The exclusion states that, "for the purposes of this permit, a permittee discharges to a federal CERCLA Site if the discharge flows directly into the site through its own conveyance, or a through a conveyance owned by others, such as a municipal separate storm sewer system."[FN74] Although a combined sewer overflow is a conveyance owned by others, there is potential2015 EPA MSGP Response to Comments June 4, 2015

135 for confusion owing to the more traditional divide in Clean Water Act permitting between discharges to MS4s, which require SPDES permit coverage, and discharges to publicly owned treatment works, which do not require coverage. But many federal CERCLA sites are waters of the United States that receive overflows from antiquated combined sewers. A discharge into a combined sewer that overflows into a federal CERCLA site is not, in reality, a discharge to a POTW. And the risk that a discharge of

stormwater associated with industrial activity will recontaminate a CERCLA site is not altered by the conveyance through which the discharge travels en route to the CERCLA site. Therefore, EPA should clarify that the language of the conditional exclusion in Part 1.1.4.10 of the MSGP applies to facilities located in watersheds serviced by combined sewers that overflow to a CERCLA site.

EPA also should reiterate in Section 1.1.4.10 that all releases of oil and hazardous substances by general permit covered facilities in reportable quantities must be reported. Although the spill prevention BMPs section of the general permit (2.1.2.4) requi res that covered facilities notify the National Response Center of any "leak, spill, or other release" of a reportable quantity of a hazardous substance or oil, and this is further reiterated in Section 5.2.3.3 of the permit, the Superfund exemption in the permit clouds that requirement by suggesting implicitly that some discharges of hazardous substances

- those that might recontaminate a Superfund site that is not in Appendix P

- are allowed under this permit and therefore need not be reported.

Finally, and relatedly, EPA should clarify that discharges under this MSGP, and particularly any discharges to a CERCLA site that obtain coverage under this general permit (i.e. discharges to sites not listed in Appendix P), are not federally permitted releases within the meaning of Section 103 of CERCLA exempt from CERCLA and EPCRA reporting requirements. EPA notes in its accompanying fact sheet that "The Western District of the US District Court in Washington found the Washington Department of Transportation's di scharges under its MS4 Phase 1 permit were federally permitted releases." Fact Sheet p. 13 of 76. EPA should avoid creating a similar situation under the MSGP where the federal courts are left to interpret the permit's terms and determine whether discharges of hazardous substances from MSGP covered facilities are or are not federally permitted releases within the meaning of Section 103 of CERCLA. As EPA makes plain in the fact sheet, the MSGP is not designed to address or control discharges of hazardous substances. The MSGP should not inadvertently become an obstacle to efforts to protect the public from releases of such substances.

Section 101(10) of CERCLA (42 USC 9601(10) defines a "federally permitted release" exempt from reporting requirements as:

" The term "federally permitted release" means (A) discharges in compliance with a permit under section 1342 of Title 33, (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a permit issued or modified under section 1342 of Title 33 and subject to a condition of such permit, (C) continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 1342 of Title 33, which are caused by events occurring within the scope of relevant operating or treatment systems, . . ."

The definition of a "federally permitted release" in CERCLA § 101(10) clearly suggests that Congress contemplated that the discharges eligible from this exemption would be discharges of pollutants that were brought to the attention of and evaluated by a CWA regulatory authority. For example, Congress referred to "discharges resulting from circumstances identified and reviewed and made part of the public record with respe ct to a permit . . . and subject to a condition of such Permit," as well as "continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application. . . ." (emphasis added). [FN75] For EPA to immunize thousands of discharges as "federally permitted releases" from CERCLA liability in an instant, by issuing a broad general permit that relies heavily on self

reporting and selfassessment, that does not require monitoring for most hazardous substances, and that2015 EPA MSGP Response to Comments June 4, 2015

136 involv es no initial analysis of the discharge at covered sites by EPA or any delegated NPDES permitting agency, defeats the intent and the purpose of the legal framework for pollution control developed by Congress in the Clean Water Act and CERCLA. It would mean that hundreds of hazardous waste generators, transporters, and disposers could immunize themselves from CERCLA liability by submitting a Notice of Intent. EPA would tear a gaping hole at in the fabric of environmental regulation right at the

seam where CE RCLA and the Clean Water Act overlap.

Congress crafted the federally permitted release exemption to CERCLA carefully, to cover discharges of pollutants that had been thoroughly evaluated by a regulator and subjected to reasonable water pollution

controls embodied in the technology and water

- quality based effluent limits of a NPDES permit, which in

most cases are numeric. EPA is well aware that the MSGP for industrial stormwater does not involve that level of analysis and careful control. And as EPA notes in the accompanying fact sheet, it has observed rising levels of contamination in sediments driven by "toxic pollutants in stormwater discharges from

NPDES- permitted municipalities and industrial sites . . . These toxic pollutants can bioaccumulate . . . [ a]dditionally these pollutants may, after reaching certain concentrations, adversely impact the survival, growth or reproduction of aquatic species directly exposed to the contaminated sediment." Fact Sheet p. 13 of 76. The MSGP is a blunt instrument; EPA knows that the MSGP cannot assure protection against the kind of environmental contamination that CERCLA was designed to address. Thus, EPA explains in

the fact sheet that:

EPA is concerned that current 2008 and proposed 2013 Multi

- Sector General Permit requirements may not adequately prevent toxic pollutants in stormwater discharges from causing sediment contamination and recontamination of Superfund cleanup sites and/or presenting an imminent and substantial endangerment to human health or welfare or the environment.

Therefore, EPA should add a clarification to the permit that discharges of reportable quantities of hazardous substances and oil are not in compliance with or covered under the MSGP. Further, because the MSGP does not adequately control re leases of hazardous substances at levels that can assure protection of public health and the environment from either imminent or long

- term endangerment, EPA should clarify that a discharge covered by the general permit is not a "federally permitted release " within the meaning of CERCLA §§101 and 103.

[FN72] See MSGP at 7 (Part 1.1.4.10).

[FN73] Fact Sheet at 12.

[FN74] MSGP at 8 (Part 1.1.4.10).

[FN75] 42 USC 9601(10).

Response EPA acknowledges the commenter’s support for the provision in Part 1.1 .4.10. For this permit issuance, EPA has decided to limit the provision to discharges to certain CERCLA sites in EPA Region 10. EPA has extensive information that stormwater discharges are a source of CERCLA Site recontamination in Region 10. EPA Region 10 has seen both the actual recontamination of Superfund Sites from stormwater outfalls and the potential for recontamination from source control information gathered at Superfund Sites not yet cleaned up. Other EPA Regions may identify CERCLA sites for inclusion in future MSGPs as the supporting information and reasonableness for doing so are obtained. See also response to Comment ID

0042.001.002. See also the fact sheet.

Regarding the commenter’s request to expand the provision to cover discharges to CSOs, that is outside2015 EPA MSGP Response to Comments June 4, 2015

137 the scope of this action, which is the re

- issuance of the MSGP (which does not cover discharges to CSOs).

The commenter is correct that there is no sediment quality monitoring required by the MSGP. Nonetheless, the MSGP does not allow discharges that exceed water quality standards, which often include broad narrative standards, such as no toxics in toxic amounts and no deleterious materials that

affect designated uses. The intent behind the CERCLA provision is that discharges to CERCLA Sites should get a hard look to determine whether the MSGP will appropriately control the discharge in light of all that is known about the receiving water, or whether additional controls or monitoring are needed to ensure the discharge does not contribute to CERCLA site recontamination by causing or contributing to an exceedance of a water quality standards. Industrial stormwater discharges that exceed water quality

standa rds violate the permit, and thus are not shielded from CWA enforcement, and do not meet the eligibility criteria for a “federally permitted release” defense to CERCLA liability.

Reportable quantity releases are, by definition, WQS violations, which are explicitly not authorized by the MSGP (i.e., they are not “federally permitted releases”).

Comment ID 0085.001.051 Issue Category: 1.1.4

Author Name: Zachary Griefen et al. Discharges to a Federal CERCLA Site

Organization: Conservation Law Foundation et al.

21. Strengthen the CERCLA site exclusion at Part 1.1.4.10 of the Permit by expanding the exclusion to cover all CERCLA facilities in the United States, clarifying that the exclusion applies to discharges to CERCLA sites conveyed via combined sewer overflow s, and clarifying that discharges of reportable quantities of hazardous substances or oil from MSGP

- covered facilities are not "federally permitted releases" under Section 103 of CERCLA and are not exempt from reporting and other CERCLA requirements.

Re sponse See response to Comment ID 0085.001.015.

Comment ID 0089.001.009 Issue Category: 1.1.4

Author Name: Kerry Kelly and Chuck White Discharges to a Federal CERCLA Site

Organization: Waste Management (WM)

Discharges to CERCLA (Superfund) Sites

EPA's proposed MSGP specifies that industrial storm water discharges to a Superfund (hazardous waste) site are not covered by the MSGP unless specifically authorized by the EPA regional office in which the site is located. It forbids facilities covered by the MSGP from discharging storm water to Superfund sites without specific approval by an EPA region. According to the proposed MSGP:

"In determining eligibility for coverage, the EPA Regional Office may evaluate whether the facility has included appropri ate controls and implementation procedures designed to ensure that the discharge will not lead to recontamination of aquatic media at the [Superfund] Site."

EPA is apparently concerned that the existing MSGP and the proposed 2013 permit "may not adequate ly prevent certain, particularly problematic toxic pollutants in storm water discharges from causing sediment2015 EPA MSGP Response to Comments June 4, 2015

138 contamination and recontamination of Superfund cleanup sites and/or presenting an imminent and substantial endangerment to human health or welfare or the environment." While it appears that the limitation on discharges to Superfund sites is directed towards storm water that caused sediment contamination, the proposed permit is not clear on the breadth and scope of this limitation. Because some Super fund sites encompass many square miles there may be many clean storm water dischargers within associated watersheds that could potentially be ineligible for coverage under this proposed MSGP. WM is concerned that the provision as written would disqualify far too many storm water discharges, even those that may not contribute to or exacerbate existing Superfund contamination from operating under the MSGP. This would force facilities into full permitting and significant additional costs with no

concomitant en vironmental benefit.

Rather than including a blanket requirement that such discharges are prohibited without Regional Office approval, WM recommends that the EPA leave the decision to the permitting agency (i.e. state or federal NPDES review), with consu ltation of the EPA. This would allow storm water discharges to continue to be authorized under the MSGP permit unless proscribed by the NPDES permitting authority, and would enable benign storm water dischargers within the watershed of Superfund sediment sites to continue to

use the MSGP.

WM is also concerned that this proposed mandate appears to raise some questions about EPA's legal authority (under the storm water program) and a current storm water discharger's responsibility for others' possible conta mination.

Response See the fact sheet and responses to Comments ID 0066.001.005, 0042.001.002



### , and 0068.001.002.

Comment ID 0092.001.013 Issue Category: 1.1.4

Author Name: Jeffrey Longsworth Discharges to a Federal CERCLA Site

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 1.1.4.10, (CERCLA Sites): Both EPA's proposed restrictions on discharges to federal CERCLA sites and its request for comment on limitations regarding certain toxic pollutants are confusing, poorly explained, and lack justification. FSWA cannot dete rmine if EPA is proposing a program only for EPA Region 10 or nationally. In both cases, more information and justification is required. FSWA also cannot determine if the requested comment on toxic pollutants is related only to the proposed section 1.1.4.1 0 or for all sites. Hence, in the absence of reproposing these provisions, EPA should abandon this proposed

section and its related Fact Sheet discussion in its final MSGP.

Response See responses to Comment ID 0068.001.002, 0042.001.002, 0022.001.002, 0066.001.005, and

0074.001.001.

Comment ID 0093.001.008 Issue Category: 1.1.4

Author Name: Amanda Aspatore Discharges to a Federal CERCLA Site

Organization: National Mining Association (NMA)

III. The Proposed Provision Governing Discharges to Federal CERCLA Sites Lacks Legal, Scientific, and Policy Justifications and is Impracticable2015 EPA MSGP Response to Comments June 4, 2015

139 Under proposed Part 1.1.4.10, a facility that discharges to a federal CERCLA site that is listed in Appendix P is ineligible for coverage under the MSGP absent an affirmative eligibility determination by an EPA Regional Office. As part of its review, the EPA Regional Office "may evaluate whether [a facility] ha[s] included appropriate controls and implementation procedures designed to ensure [its] discharge will not lead to recontamination of aquatic media at the CERCLA site." This provision reflects an unprecedented expansion of EPA's regulatory authority. As proposed, it would seem to give EPA authority to prohibit stormwater discharges to virtually any receiving water that may have been included in a CERCLA site at some point. [FN11] There is no basis for such authority in the Clean Water Act, nor does this provision reflect sound science or policy judgments. In short, because this proposal inexplicably departs from the approaches adopted by EPA beginning in 1995 in implementing the stormwater discharge program while CERCLA was fully in effect, EPA should abandon it now.

A. EPA Lacks Authority Under the Clean Water Act to Impose This Requirement

The key finding that EPA must make under this proposed part is that a facility has taken sufficient steps to ensure that stormwater discharges will not lead to recontamination of aquatic media. The Clean Water Act's NPDES program, however, does not condition permit coverage on consistency with CERCLA goals or requirements. Rather, under Section 402(a), Congress envisioned that EPA would issue NPDES permits upon condition that discharges would meet requirements under Cle an Water Act Sections 1311 (technology- based effluent limitations); 1312 (water quality

- based effluent limitations); 1316 (new source performance standards); 1317 (toxic and pretreatment effluent standards); 1318 (records, reports, and inspections); and 1343 (ocean discharge criteria). [FN12] Under this proposal, EPA has failed to explain how determining whether a discharge could lead to recontamination of aquatic media bears any relationship to meeting these enumerated requirements in section 402(a).

EPA is improperly attempting to weave federal sediment criteria goals into NDPES permitting without tying those goals to state water quality standards or any other Clean Water Act requirement. In EPA's view, NPDES permits "may not control discharges sufficien tly to avoid sediment recontamination because most effluent limits are written to protect the water column and not with particular regard to sediment impacts or contamination." [FN13] Even if this is true, that does not mean such permits are failing to meet the requirements of the Clean Water Act. Nor does it justify imposition of new limits in NPDES permits that are driven by an entirely different regulatory scheme. Indeed, it is telling that, in its justification for proposed Part 1.1.4.10, EPA references exceedances of sediment cleanup goals and its authority to address imminent and substantial endangerment under CERCLA, RCRA, and the Safe Drinking Water Act, yet the Agency says nothing about whether water quality standards are being

attained or the need to meet Clean Water Act requirements. Until effluent limitations guidelines and/or state water quality standards are revised to adopt contaminated sediment requirements, EPA cannot lawfully "integrate" the Clean Water Act and CERCLA as it proposes to do un der Part 1.1.4.10.

Importantly, in states that have federally approved NPDES programs, incorporating a comparable provision into state general permits would be inconsistent with the Clean Water Act's cooperative federalism scheme. Coverage under state general permits for discharges to identified CERCLA sites would depend on waiting for an EPA Regional Office's eligibility determination regarding recontamination of aquatic media, and that determination need not be granted in a timely manner. Nothing in the Clean Water Act contemplates that EPA would have this decision

- making authority with respect to state NPDES permits. Of course, EPA has authority under the statute to object in writing to any state's issuance of an NPDES permit, but only if EPA deems such a permit to be "outside the guidelines and requirements of this chapter." [FN14] EPA does not, however, have the authority to object to a state NPDES permit based on a finding that the permit could impact efforts under CERCLA.

Response2015 EPA MSGP Response to Comments June 4, 2015

140 See the fact sheet and response to Comment ID 0066.001.005. Although states may not have adopted numeric sediment quality standards, all states must have narrative standards that protect designated uses in the absence of a specific numeric criteria, such as disallowing toxics in toxic amounts, or prohibiting deleterious substances or accumulations that adversely affect uses, etc. Although the scope of CERCLA response authorities may be broader in method and purpose than the CWA, when there have been documented CERCLA releases of hazardous substances to surface water, in many cases, the adverse risks evaluated under CERCLA will be impairments to designated uses under the CWA. Across the country, many states have listed waters as impaired under Section 303(d) of the CWA, where there have been

documented releases from a CERCLA site.

Comment B. EPA Has Not Set Forth a Sound Scientific Justification for Proposed Part 1.1.4.10

EPA has not set forth sufficient scientific or technical information justifying the proposed provision governing discharges to federal CERCLA sites. EPA refers to, without any supporting citation, "[s]ource sampling and sediment data from some NPDES outfal ls [that purportedly] indicate exceedances of sediment cleanup goals established for CERCLA sites." [FN15] Again, as noted above, this statement says nothing about attainment of water quality standards. This is not surprising given EPA's acknowledgements t hat "[f]ew states have adopted contaminated sediment water quality criteria" [FN16] and that "sediment contamination may not always be addressed by applicable numeric water quality standards or other narrative standards[.]" [FN17] Absent defensible data demonstrating the need for additional effluent limitations or other permit provisions to meet Clean Water Act requirements, there is no scientific basis for proposed Part 1.1.4.10.

The lone example that EPA cites in discussing proposed Section 1.1.4.10 is Boeing Field. But there, stormwater discharges from a facility covered under the Washington State MSGP contained various pollutants "at levels exceeding WA numeric water quality standards or sediment standards that are CWA standards and are used for cleanup and CWA purposes." [FN18] That isolated example appears to be an enforcement failure on the part of the state agency; it does not provide a basis for a sweeping national regulatory change such as that proposed in Part 1.1.4.10, nor any further potential requirements or permitting options regarding specific toxic pollutants in industrial stormwater discharges.

Response EPA disagrees. The evidence supporting the CERCLA provision is in the Fact Sheet and the MSGP public docket. See also response to Comment ID 0074.001.001.

Comment C. Proposed Part 1.1.4.10 Reflects Bad Policy Judgment

By precluding coverage under the proposed MSGP for existing discharges to a designated CERCLA site, EPA is assuming that activities conducted under CERCLA have failed to co nsider all relevant inputs. CERCLA, however, already accounts for, among other things, discharges coming from federally permitted sources, which is why there is no need to clean up sites to levels that cannot be maintained permanently. By imposing this new requirement in part 1.1.4.10, EPA could conceivably pretend as though federally permitted discharges do not exist in order to force CERCLA cleanup to more stringent levels than those envisioned under CERCLA's regulatory scheme.

The presumption of no coverage for existing discharges to a CERCLA Site is also arbitrary given that the stormwater discharges could be associated with a type of industrial activity that is entirely distinct from that which gave rise to the impacts that are being remedied under CERCLA. And even if the stormwater discharges are associated with a type of industrial activity that resembles the activity that gave rise to the2015 EPA MSGP Response to Comments June 4, 2015

141 impact, they could nevertheless substantially differ due to technology and/or practice improvements.

Additiona lly, the practical impacts of the proposed part 1.1.4.10 could be staggering. Depending on how EPA Regional Offices exercise their discretion, this provision would effectively suspend application of the MSGP in any of the Appendix P sites' upstream watersh eds during the time EPA personnel conduct

their site

- specific reviews and determinations. It is not clear to NMA, however, that EPA has the staff and resources necessary to implement this provision, particularly in a prompt manner upon receipt of notice

fr om the potential permittee. In the meantime, facilities that previously obtained coverage under the 2008 MSGP would be placed in limbo and could be subject to enforcement liability any time there is a form of precipitation. Denying MSGP coverage absent an affirmative EPA determination pursuant to this provision is unreasonable given that the discharges at issue are the result of precipitation, not affirmative discharges. Facilities cannot simply stop discharging in connection with storm events while they wait for protracted EPA review and approvals.

EPA's proposal is especially unworkable for mining CERCLA sites. Mining CERCLA sites are often large, covering many square miles. In addition, mining CERCLA sites are most often listed based upon the presence of naturally occurring mineralization in the surrounding regional rock and soils. Stormwater discharges in naturally occurring mineralized areas should be addressed by flexible best management practices, as they have been over the past two decades.

For the foregoing reasons, NMA also believes that a ban on the discharge of any bioaccumulative pollutants in stormwater discharges (no matter how insignificant) in the MSGP is not warranted. Such a provision is not linked to state water quality standards and exceeds EPA's authority under the Clean Water Act. NMA thus urges EPA not to adopt this proposed provision.

Response See the fact sheet and responses to Comment ID 0068.001.002, 0042.001.002, and 0022.001.002.

Comment D. Alternatively, if EPA Retains Proposed Part 1.1.4.10, It Should Revise That Provision

Should EPA nevertheless proceed with finalizing the proposed provision, which NMA believes to be unlawful, NMA urges that the Agency consider the following changes. The proposed language assumes that a facility will know whether its discharge flows "direct ly" to a CERCLA site, either through its own conveyance or a conveyance owned by others. But whether such a discharge is, in fact, "direct" may be difficult to determine. It likely would be even more difficult to determine whether a discharge would

"lead t o recontamination of aquatic media." Such a qualitatively vague standard would give EPA Regional Offices far too much discretion and would likely trigger inconsistent permit coverage decisions. Rather than presume no coverage until the EPA Regional Office makes its determination under part 1.1.4.10, a denial of coverage should not occur until after: (i) a facility receives notice from EPA that it is discharging directly to a federal CERCLA site; (ii) EPA determines that the facility has not included

appropr iate controls and implementation procedures designed to ensure that discharges will not lead to recontamination of aquatic media; and (iii) the facility has had a reasonable opportunity to contest EPA's

determination.

Indeed, Part 1.1.4.10 (or another pr ovision within the MSGP) should provide for the continuation of permit coverage for facilities permitted under the 2008 MSGP during the time it takes for the EPA Regional Office to make the requisite determination under this provision using sound science. In other words, existing discharges should be afforded the same treatment as a facility that discovers, after receiving coverage under the MSGP, that it is discharging to a CERCLA site in Appendix P. Both categories of facilities ought to retain coverage throughout the time they work with the applicable EPA2015 EPA MSGP Response to Comments June 4, 2015

142 Regional Office to develop whatever appropriate controls and/or implementation procedures may be

necessary.

Further, EPA must explain how it will implement these provisions where EPA itself is conducti ng CERCLA activities. EPA routinely conducts such activities at orphan sites, under emergency removal action authorities, and where potentially responsible parties have negotiated monetary settlements with

EPA.

Finally, EPA should remove the sentence in the Fact Sheet (at p. 11) explaining that "a permittee discharges to a [f]ederal CERCLA [s]ite if the permittee has been notified . . . that it has potential liability for response costs incurred at the CERCLA [s]ite[.]" Just because a facility receives a "PRP" notice does not mean that it is actually discharging to a federal CERCLA site. EPA should not equate the two for purposes of applying this provision of the proposed MSGP.

[FN11] Thus far, it appears as though only EPA Region 10 has identified twelve CERCLA sites in Appendix P at which this proposed provision will apply. There is no indication as to when other Regions will add other sites to Appendix P.

[FN12] 33 U.S.C. § 1342(a)(1).

[FN13] See Proposed 2013 MSGP Fact Sheet at 12.

[FN14] 33 U.S .C. § 1342(d)(2) (emphasis added).

[FN15] Proposed 2013 MSGP Fact Sheet at 12.

[FN16] Id. at 13.

[FN17] Id. at 12.

[FN18] Id. at 13 (emphasis added).

Response EPA disagrees that the determination of the CERCLA site receiving water that a facility directly discharges to is problematic. Operators can inquire with EPA Region 10 if they are unsure if they discharge to one of the CERCLA sites in Appendix P. See also the fact sheet and response to Comment

ID 0068.001.002 and 0066.001.005.2015 EPA MSGP Response to Comments June 4, 2015

143 Issue Category: Section 1.1.5
- Permit Shield Provision of the CWA Section 402(k)

Comment ID 0027.001.001 Issue Category: 1.1.5

Author Name: Michelle Bonnet Hale Permit Shield Pr ovision of the CWA Section 402(k) Organization: Alaska Department of Environmental Conservation

EPA proposes in Sections 1.1.3, 1.1.4, 2.1.2.9, 5.0, and 5.2.3.4 of the draft 2013 MSGP to eliminate the permit shield provision of the Clean Water Act (CWA) §402(k) as it applies to storm water and non -storm water discharges covered by the 2013 MSGP.

D EC opposes the elimination of the permit shield provision as it relates to Sections 1.1.3, 1.1.4, 2.1.2.9, 5.0 and 5.2.3.4 of the 2013 MSGP. The elimination of the permit shield provision is contrary to: 1) Congress' intent in enacting §402(k) of the CWA; and 2) longstanding EPA policy construing §402(k) for

the reasons discussed below.

The Elimination of the Permit Shield Provision is Contrary to Congress' intent in Enacting §402(k) of the

CWA

Permits issued under Section 402 of the CWA serve the function as both a license to discharge and a protection. The protection is in the form of a shield, which provides that compliance with the statute protects "a discharger from liability under the CWA as long as it discharges in compliance with its permit." [FN1] The U.S. Supreme Court has noted that the §402(k) shield "serves the purpose of giving permits finality" and "insulate[s] permit holders from changes in various regulations during the period of the permit and to relieve them of having to litigate in an enforcement action." [FN2] Without the shield provision, there would be no finality upon the permit's effective date. Permittees would be unable to rely on their permit conditions and requirements and would be exposed to numerous risks, including citize n lawsuits and regulatory uncertainty.

Congress intended that the enforcement of the CWA would be straightforward and meet the needs of the permittees, the agency and the general public. The elimination of the shield provision unnecessarily complicates matters and is not in the best interests of the permittees, the agency or the general public.

EPA has long recognized Congress' intent in enacting §402(k) and has acted accordingly. In 1980, EPA stated: "this 'shield' provision is one of the central f eatures of EPA's attempt to provide permittees with maximum certainty during the fixed terms of their permits. This new provision gives a permittee the security of knowing that, if it complies with its permit, it will not be enforced against for violating some requirement of the Act which was not a requirement of the permit (emphasis added)." [FN3] The elimination of the shield provision not only deprives permittees of "maximum certainty," it also puts them unnecessarily at risk.

The Elimination of the Permit Shield Protection is Contrary to EPA Policy

Under Sections 1.1.3, 1.1.4, 2.1.2.9, 5.0, and 5.2.3.4, of the proposed 2013 MSGP, EPA is attempting to limit discharges to only those discharges expressly authorized under the permit. Unauthorized disc harges will not become authorized or shielded by disclosure to the EPA, and/or the state, via the Notice of Intent to be covered by the permit or by other means such as the Storm Water Pollution Prevention Plan. As discussed below, EPA has long rejected a regulatory framework based on the premise that EPA must issue permits that limit every pollutant potentially present in the discharge. [FN4]

The rationale for EPA's long

- standing approach remains as valid today as it was 40 years ago

- "It is2015 EPA MSGP Response to Comments June 4, 2015

144 impossible to identify and rationally limit every chemical or compound in the discharge of pollutants. Compliance with such a permit would be impossible." [FN5]

In 1978, when EPA proposed regulations adopting §402(k), it contemplated limiting the scope of the

per mit shield to pollutants specifically listed in the permit.[FN6] However, the final regulations discarded that concept and focused on "significant discharges" and not "non

- limited pollutants." [FN7] The Environmental Appeals Board has commented on this app roach as follows: "(a)lthough in theory the Agency could structure permits to prohibit the discharge of all pollutants except those listed in the permit, such an approach would require the Agency to include in the permit a list of every pollutant or

combin ation of pollutants that conceivably might be contained in the applicant's wastestreams, and to determine which of those pollutants the Agency considered appropriate for discharge ... such a permit

writing approach would be unduly burdensome and costly, an d ultimately impractical (italics added)." [FN8]

The Agency has made it clear: "EPA did not intend to require water quality

- based permit limitations on all pollutants contained in a discharge...The proper interpretation of the regulations is that... [w] ater quality- based limits are established where the permitting authority reasonably anticipates the discharge of pollutants by the permittee at levels that have the reasonable potential to cause or contribute to an excursion above any state water quality c riterion...." [FN9]

In conclusion, DEC urges EPA to remove the language about the permit shield provision in Sections 1.1.3, 1.1.4, 2.1.2.9, 5.0 and 5.2.3.4 of the proposed 2013 MSGP, thus retaining the permit shield provision consistent with Congress's intent in formulating §402(k) and EPA's longstanding approach for implementing the provision.

[FN1] In re Ketchikan Pulp Co., 7 E.A.D 605, 617, 1998 WL284964 (E.P.A. 1998)

[FN2] E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n.28 (1977).

[FN3] 45 Fed. Reg. 33311 (May 19, 1980).

[FN4] Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2nd Cir. 1994).

[FN5] Memorandum from EPA Deputy Administrator of Water Qua lity Enforcement Jeffrey G. Miller to Regional Enforcement Director, Region V at 2 (April 28, 1976).

[FN6] 43 Federal Register 37,079 (August 21, 1978).

[FN7] 45 Federal Register 33,521 (May, 19, 1980).

[FN8] In re Ketchikan Pulp Co., 7 E.A.D 605, 1998 WL 284964 at 12

- 13 (EPA 1998);The 2nd Circuit of Appeals characterized this approach as "absolutist and wholly impractical." Eastman Kodak, 12 F.3d at

358.

[FN9] Memorandum from Director, Office of Wastewater Enforcement and Compliance to Water

M anagement Division Directors, Regions I

- X at 2

- 3 (August 14, 1992); see also Eastman Kodak, 12 F.3d

at 358.

Response See the permit, the fact sheet, and response to Comment ID 0094.001.004.2015 EPA MSGP Response to Comments June 4, 2015

145 Comment ID 0063.001.001 Issue Category: 1.1.5

Author Name: Paul Nazaryk Permit Shield Provision of the CWA Section 402(k) Organization: BHP Billiton New Mexico Coal

1. The proposed MSGP includes language that attempts to improperly narrow the statutory permit shield provision found in the Clean Water Act. This language should be deleted from the proposed MSGP.

The proposal includes language at §§ 1.1.3, 1.1.4, 2.1.2 .9 and 5 which attempts to narrow the statutory permit shield provision found within the Clean Water Act at 42 United States Code (U.S.C.) § 1342(k). As thoughtfully stated in the NMA comments, this language improperly narrows the scope of the
statutory ex clusion and is contrary to settled law. The language found at §§ 1.1.3, 1.1.4, 2.1.2.9, and 5 should be deleted from the proposed permit.

Response See the permit, fact sheet, and response to Comment ID 0094.001.004.

Comment ID 0066.001.002 Issue Category: 1.1.5

Author Name: Timothy Carlstedt Permit Shield Provision of the CWA Section 402(k) Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 1.1.4 Limitations on Coverage

This section discusses what is and what is not authorized under the permit and covered by the permit shield provided by section 402(k) of the Clean Water Act (CWA). [FN2] We agree this should be clearly stated in the permit. However, the current language does not provide that clarity.

Provided a discharger meets the permit's eligibility requirements (Part 1.1.1 up to Part 1.2) and submits a complete and accurate NOI, his or her stormwater discharges should be authorized under the 2013 MSGP, regardless of which pollutants may or may not be present in the stormwater. [FN3] The permit authorizes all pollutants within the scope of the permitted discharges. See Revised Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits , U.S. EPA, April 11, 1995. [FN4] Provided a discharger complies with the terms and conditions of the 2013 MSGP, he or she should be deemed in compliance with the CWA and protected by the permit shield of CWA Section 402(k).

UWAG requests that, consistent with its policy, EPA revise this section (and Part 5) to state this basic concept more clearly.

[FN2] 2 Similar language is included in the last paragraph of Part 5.

[FN3] Of course if there are no pollutants in the stormwater discharge, there is no need for the 2013

MSGP.

[FN4] EPA's permit shield policy provides:

Section 402(k) also shields discharges of pollutants authorized under a general permit. EPA's position is that general permits authorize the discharge of all pollutants within the speci fied scope of a particular general permit, subject to all pollutant limits, notification requirements and other conditions within a particular general permit so long as the permittee complies with all EPA application requirements for the2015 EPA MSGP Response to Comments June 4, 2015

146 general permit. EP A regulations provide the circumstances for which discharges may be authorized under a general permit. See 40 C.F.R. §122.28. To obtain authorization to discharge under a general permit (and consequently, the protection of the shield), in most cases, the p rospective permittee must submit either a written notice of intent to be subject to the general permit or a permit application as appropriate.

Response EPA agrees with the commenter’s statement that “[p]rovided a discharger meets the permit's eligibility requirements (Part 1.1.1 up to Part 1.2) and submits a complete and accurate NOI, his or her stormwater discharges should be authorized under the 2013 MSGP, regardless of which pollutants may or may not be present in the stormwater.” EPA also agrees that “[t]he permit authorizes all pollutants within the scope of the permitted discharges.” EPA maintains that the inclusion of the permit shield scope languag e provides clarity, rather than causing confusion. See the permit, fact sheet, and response to Comment ID

0094.001.004.

Comment ID 0067.001.003 Issue Category: 1.1.5

Author Name: Timothy Pohle Permit Shield Provision of the CWA Section 402(k) Organization: Airlines for America (A4A)

2. Sections 1.1.3, 1.1.4 and 2.1.2.9

- Permit Cannot Reject Application of CWA Section 402(k)

In revised Sections 1.1.3, 1.1.4 and 2.1.2.9, the Draft Permit appears to reject application of CWA Section 402(k) to discharges not authorized by this permit. That new language reads as follows.

"Any discharges not expressly authorized under this permit are not within the scope of the pollutants authorized. Such discharges are not covered by this permit or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA and/or state via the

Notice o f Intent (NOI) to be covered by the permit or by any other means (e.g., in the Stormwater Pollution Prevention Plan (SWPPP) or during an inspection)."

A4A believes that the Agency's purpose in incorporating this language was to make clear that this permi t is available to authorize the discharge of industrial stormwater and nonstormwater from enumerated sources, but that it does not authorize (and Section 402(k) cannot be read to make it authorize) discharges

of non

- stormwaters from other sources. We believe, however, that EPA has made two errors in crafting language to effectuate this otherwise unobjectionable goal.

First, a permit cannot define the scope of Section 402(k). It is Section 402(k) that defines the meaning of NPDES permits. To allow a permit writer to dictate whether compliance with his or her NPDES permit constituted compliance with the statute (the effect of Section 402(k)) would be akin to allowing a permit writer to issue a permit without public participation, or without including effluen t limitations necessary to implement the substantive elements of the Act. Permits simply cannot change the statutory terms under which they are written. As crafted, however, the language above purports to do just that and nothing in the statute authorizes such language.

Second, it is not the authorization of "pollutants" that is at issue here, but rather the authorization of the

sources of non

- stormwater discharges. What the Agency is trying to accomplish by its language is not to limit 402(k) protection of certain pollutants, but to ensure that the permit is not read to authorize discharges emanating from non

- enumerated non

- stormwater sources. It need not refer to Section 402(k) to accomplish that objective. A permit writer is in control of the sources of discharge for which he or she writes their permit. A general NPDES permit such as this one may cover, or decline to cover, virtually2015 EPA MSGP Response to Comments June 4, 2015

147 any combination of discharge sources. A good example of this is the enumerated non

- stormwater sources that traditionally have been authorized as a matter of convenience by virtually all federal and state general NPDES stormwater permits. Here, that power to determine what sources are authorized by a permit and

which are not is sufficient to ensure that non

- authorized sources are not unintentionally authorized for discharge under this new MSGP. It is not the pollutants that define this line, but the sources of those pollutants.

EPA should reconsider the language quoted above and rephrase it, both to focus on sources of discha rge rather than pollutants, and to eliminate the bizarre situation in which the permit purports to tell its authorizing statute what the statute's terms can and cannot do.

Response EPA’s purpose was not to define nor change the scope of the permit shield in the permit. The purpose was to provide greater clarity about the scope of what is authorized under the permit. EPA has removed the statement “not within the scope of pollutants authorized” from this permit language, which addresses one of the commenter’s concern. See also the permit, fact sheet, and response to Comment ID 0094.001.004.

Comment ID 0072.001.009 Issue Category: 1.1.5

Author Name: Leah Pilconis Permit Shield Provision of the CWA Section 402(k) Organization: The Associated General Contractors of America (AGC of America)

Permit Shield Provision

For the first time in an MSGP, EPA has attempted to define the applicability of the "permit shield" provision of the CWA Section 402(k) to the general permit. [FN14] Specifically, EPA sets forth that:

Any discharges not expressly authorized under this permit are not within the scope of the pollutants authorized. Such discharges are not covered by this permit or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA and/or state via the

Noti ce of Intent (NOI) to be covered by the permit or by any other means (e.g., in the Stormwater Pollution Prevention Plan (SWPPP) or during an inspection).

On its face, AGC recognizes that EPA does not want to create opportunities for facilities to obtain NPDES permit coverage for discharges that the agency has not contemplated should be covered under the MSGP. AGC accepts that premise. However, in its implementation, it creates for EPA a situation in which it must anticipate every possible discharge covere d by this general permit at vastly different types of sites across significantly different industries/operations. And yet, there are many "gray areas" that do not lend themselves neatly to black and white line drawing. Section 1.1.4.1 raises the kinds of c oncerns that result from this effort. Specifically, EPA concludes that:

Stormwater discharges that are mixed with non

- stormwater, other than those nonstormwater discharges listed in Part 1.1.3, are not eligible for coverage under this permit.

This requirement could be interpreted such that any mixing of industrial stormwater with any non

stormwater not otherwise listed in the permit removes or somehow vitiates the coverage for the permitted industrial stormwater discharge in that combined discharge. In other words, not only is the non

stormwater portion not covered by the MSGP (logical solution), but the implication is that the MSGP

covered part of that combined discharge somehow also loses its MSGP protection (illogical solution). The draft MSGP Fact Sheet implies that the former is EPA's intent (to force alternative permit coverage of the2015 EPA MSGP Response to Comments June 4, 2015

148 otherwise unpermitted non

- stormwater), but EPA's true intent is not explained with sufficient precision.

Both the permit language and the draft MSGP Fact Sheet need more clarity and EPA should proceed cautiously if it attempts to clarify the applicability of the permit shield in the final MSGP to ensure that it is not creating unwarranted and unfair unintended consequences. The permit shield provision of the CWA plays an important role in the NPDES permitting scheme and should not be applied in a more restrictive manner within this general permitting setting than in any other NPDES permit.

[FN14] See the 2013 Draft MSGP Section 1.1.4 and repeated in Section 5.

Response See permit, fact sheet, and response to Comment ID 0094.001.004 and 0092.001.010.

Comment ID 0086.001.002 Issue Category: 1.1.5

Author Name: Daniel Graham Permit Shield Provision of the CWA Section 402(k) Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

II. The New MSGP Improperly Narrows the Scope of the Clean Water Act's Permit Shield Provision

EPA is proposing to add language to the MSGP concerning the Clean Water Act's permit shield provision, 33 U.S.C. § 1342(k). In particular, Part 1.1.4 of the proposed MSGP states that "[a]ny discharges not expressly authorized . . . are not covered by this permit or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA and/or state[.]" Similarly, Part 5 states that "any discharges not expressly authorized under the MSGP are not covered by the MSGP or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA via the SWPPP or by any other means (e.g., during an inspection)." These proposed revisions improperly narrow the scope of Sec tion 402(k) permit shield protection and thus, EPA should remove them from the MSGP.

Recent court decisions affirmed the applicability of Section 402(k) to general permits. [FN3] More importantly, a number of courts that have interpreted the scope of Section 402(k) have rejected the view that any discharges not specifically authorized by an NPDES permit are necessarily prohibited. For example, the U.S. Court of Appeals for the Fourth Circuit has held that "all discharges adequately disclosed to the permitting authority are within the scope of the permit's protection." [FN4] According to that court, it is "clear that a permit holder is in compliance with the CWA even if it discharges pollutants that are not listed in its permit, as long as it only discharges pollutants that have been adequately disclosed to the permitting authority." [FN5] Similarly, the U.S. District Court for the Eastern District of Kentucky recently adopted the holding from an Environmental Appeals Board decision that "polluters may

disch arge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants."[FN6]

The rationale underlying the aforementioned holdings is st raightforward. As the Second Circuit explained, "it is impossible to identify and rationally limit every chemical or compound present in a discharge of pollutants." [FN7] Indeed, "compliance with such a permit would be impossible and anybody seeking to har ass a permittee need only analyze that permitte's discharge until determining the presence of a substance not identified in the permit."[FN8] The Environmental Appeals Board expanded upon the Second Circuit's rationale, as follows:

Although in theory the Agency could structure permits to prohibit the discharge of all pollutants except2015 EPA MSGP Response to Comments June 4, 2015

149 those listed in the permit, such an approach would require the Agency to include in the permit a list of every pollutant or combination of pollutants that conceivably might be contained in the applicant's wastestreams, and to determine which of those pollutants the Agency considered appropriate for discharge. Since any given wastestream may contain hundreds of pollutants, such a permit

- writing approach would be unduly burdens ome and costly, and ultimately, impractical. As the Agency has acknowledged: it is impossible to identify and rationally limit every chemical or compound present in a discharge of pollutants. Consequently, the Agency has determined that the goals of the CWA may be more effectively achieved by focusing on the chief pollutants and wastestreams established in effluent guidelines and disclosed by permittees in their permit applications, rather than by attempting to identify the hundreds or thousands of pollutants potentially present in permittees' wastestreams.[FN9]

These holdings, and their underlying policy rationales, make it clear that the proposed language in the proposed MSGP would unduly narrow the scope of the permit shield under Section 402(k). EPA ha s not articulated a satisfactory explanation for departing from these precedents, apart from baldly asserting that the proposed revisions are "consistent with EPA's long

- standing interpretation of the scope of its permit."[FN10] Such an assertion does not support EPA's proposed revision and thus, the Agency should delete the language concerning the applicability of the permit shield provision in proposed sections 1.1.3, 1.1.4, 2.1.2.9, and 5.

[FN3] See, e.g., Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, No. 09

- cv

- 00255, 2013 WL 1614436, at *6

- 10 (D. Alaska Mar. 28, 2013); Sierra Club v. ICG Hazard, LLC, No. 11

- cv - 148, 2012 WL 4601012, at *5

- 8 (E.D. Ky. Sept. 28, 2012).

[FN4] Piney Run Pres. v. Cty. Comm'rs of Carroll Cty., 268 F.3d 255, 269 (4th Cir. 2001).

[FN5] Id. at 268.

[FN6] See ICG Hazard, 2012 WL 4601012, at *9 (quoting Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at *9 (1998)).

[FN7] Atl. States Legal Found., Inc. v. Eastman Kodak Comp., 12 F.3d 353, 357 (2d Cir. 1994).

[FN8] Id.

[FN9] Ketchikan Pulp Co., 1998 WL 284964, at *9.

[FN10] Proposed 2013 MSGP Fact Sheet, at 6.

Response See permit, fact sheet, and response to Comment ID 0094.001.004.

Comment ID 0092.001.009 Issue Category: 1.1.5

Author Name: Jeffrey Longsworth Permit Shield Provision of the CWA Section 402(k) Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 1

- Coverage Under this Permit

Section 1.1.4: For the first time in a MSGP, EPA has attempted to define the applicability of the "permit shield" provision of the CWA (Section 402(k)) to the general permit (Section 1.1.4 and repeated in2015 EPA MSGP Response to Comments June 4, 2015

150 Section 5). Specifically, EPA sets forth that:

An y discharges not expressly authorized under this permit are not within the scope of the pollutants authorized. Such discharges are not covered by this permit or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA and/or state via the Notice of Intent (NOI) to be covered by the permit or by any other means (e.g., in the Stormwater Pollution Prevention Plan (SWPPP) or during an inspection).

On its face, FSWA recognizes that EPA does not want to create opportunities for facilities to obtain NPDES permit coverage for discharges that the Agency has not contemplated should be covered under the MSGP (i.e., not "associated with industrial activity" or other specifically

- enumerated non -stormwater discharges). FSWA has no issues with that premise. However, in its implementation, EPA cannot specifically enumerate every such discharge and the Agency creates a scenario in which it will fail to identify every possible discharge covered by this general permit at vastly different types of sites across significantly different industries/operations.

Response See the permit, fact sheet, and response to Comment ID 0094.001.004. The final permit is clear in the scope of discharges it authorizes. The 2015 MSG P clearly explains that it authorizes discharges of stormwater from industrial activities (i.e., the allowable stormwater discharges in Part 1.1.2 and the

allowable non

- stormwater discharges in Part 1.1.3, no more and no less).

Comment ID 0092.001.011 Issue Category: 1.1.5

Author Name: Jeffrey Longsworth Permit Shield Provision of the CWA Section 402(k) Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

The permit shield provision of the CWA plays an important role in the NPDES permitting scheme and should not be applied in a more restrictive manner within this general permitting setting than in any other NPDES permit. It has been affirmed in its proper application to NPDES permits and even earlier this year relative to EPA's MSGP (see e.g., Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, No. 09

-

cv

- 00255, 2013 WL 1614436, at *6

- 10 (D. Alaska Mar. 28, 2013)). EPA has failed to provide its

ration ale or detailed justification for altering past precedent for applying the permit shield CWA protection, and as set forth above, will create unwarranted confusion and permitting challenges if it finalizes its proposed approach. Thus, both the Permit Language and the Fact Sheet require revision, either to remove EPA's proposed permit shield language or to provide sufficient clarity and justification.

Response See the permit, fact sheet, and response to Comment ID 0094.001.004.

Comment ID 0093.001.002 Is sue Category: 1.1.5

Author Name: Amanda Aspatore Permit Shield Provision of the CWA Section 402(k) Organization: National Mining Association (NMA)

•By adding provisions stating that the MSGP only covers discharges that are expressly authorized under the permit, EPA has unduly narrowed the scope of the Clean Water Act's permit shield provision under Section 402(k). Such limitations are contrary to wel l established judicial and administrative precedents.

•EPA should not finalize the proposed provision governing discharges to federal CERCLA sites. EPA2015 EPA MSGP Response to Comments June 4, 2015

151 lacks authority under the Clean Water Act to impose this new requirement. Moreover, EPA has not

articu lated a sound scientific or policy rationale to support this requirement.

Response See the permit, fact sheet, and response to Comment ID 0094.001.004, 0074.001.001, and 0042.001.002



### .

Comment ID 0093.001.007 Issue Category: 1.1.5

Author Name: Amanda Aspatore Permit Shield Provision of the CWA Section 402(k) Organization: National Mining Association (NMA)

II. The New MSGP Improperly Narrows the Scope of the Clean Water Act's Permit Shield Provision

EPA is proposing to add language to the MSGP concerning the Clean Water Act's permit shield provision, 33 U.S.C. § 1342(k). In particular, Part 1.1.4 of the proposed MSGP states that "[a]ny discharges not expressly authorized . . . are not covered by this permit or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA and/or state[.]" Similarly, Part 5 states that "any discharges not expressly authorized under the MSGP are not covered by the MSGP or the permit shield provision of the CWA Section 402(k) and they cannot become authorized or shielded by disclosure to EPA via the SWPPP or by any other means (e.g., during an inspection)." These proposed revisions improperly narrow the scope of Sec tion 402(k)'s permit shield protection and thus, EPA should remove them from the MSGP.

Recent court decisions affirmed the applicability of Section 402(k) to general permits. [FN3] More importantly, a number of courts that have interpreted the scope of Section 402(k) have rejected the view that any discharges not specifically authorized by an NPDES permit are necessarily prohibited. For example, the U.S. Court of Appeals for the Fourth Circuit has held that "all discharges adequately disclosed to the permitting authority are within the scope of the permit's protection." [FN4] According to that court, it is "clear that a permit holder is in compliance with the CWA even if it discharges pollutants that are not listed in its permit, as long as it only discharges pollutants that have been adequately disclosed to the permitting authority." [FN5] Similarly, the U.S. District Court for the Eastern District of Kentucky recently adopted the holding from an Environmental Appeals Board decision that "polluters may

dis charge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants." [FN6]

The rationale underlying the aforementioned holdings is straightforward. As the Second Circuit explained, "it is impossible to identify and rationally limit every chemical or compound present in a discharge of pollutants." [FN7] Indeed, "compliance with such a permit would be impossible and anybody seeking to harass a permittee need only analyze that permittee's discharge until determining the presence of a substance not identified in the permit." [FN8] The Environmental Appeals Board expanded upon the Second Circuit's rationale, as follows:

Although in theory the Agency could structure permits to prohibit the discharge of all pollutants except those listed in the permit, such an approach would require the Agency to include in the permit a list of every pollutant or combination of pollutants that conceivably might be contained in the applicant's wastestreams, and to determine which of those pollutants the Agency considered appropriate for discharge. Since any given wastestream may contain hundreds of pollutants, such a permit

- writing approach would be unduly bu rdensome and costly, and ultimately, impractical. As the Agency has acknowledged: it is impossible to identify and rationally limit every chemical or compound present in a discharge of pollutants. Consequently, the Agency has determined that the goals of the CWA may be more effectively achieved by focusing on the chief pollutants and wastestreams established in effluent2015 EPA MSGP Response to Comments June 4, 2015

152 guidelines and disclosed by permittees in their permit applications, rather than by attempting to identify the hundreds or thousands of pol lutants potentially present in permittees' wastestreams. [FN9]

These legal holdings, and their underlying policy rationales, make it clear that the proposed language in the proposed MSGP would unduly narrow the scope of the permit shield under Section 40 2(k). EPA has not articulated an explanation for departing from these precedents, apart from baldly asserting that the proposed revisions are "consistent with EPA's long

- standing interpretation of the scope of its permit." [FN10] Such an assertion does not support EPA's proposed revision and thus, the Agency should delete the language concerning the applicability of the permit shield provision in proposed sections 1.1.3, 1.1.4, 2.1.2.9, and 5.

[FN3] See, e.g., Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, No. 09

- cv00255, 2013 WL 1614436, at *6

- 10 (D. Alaska Mar. 28, 2013); Sierra Club v. ICG Hazard, LLC, No. 11

- cv

- 148, 2012 WL 4601012, at *5

- 8 (E.D. Ky. Sept. 28, 2012).

[FN4] Piney Run Pres. v. Cty. Comm'rs of Carroll Cty., 268 F.3d 255, 269 (4th Cir. 2001).

[FN5] Id. at 268.

[FN6] See ICG Hazard, 2012 WL 4601012, at *9 (quoting Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at *9 (1998)).

[FN7] Atl. States Legal Found., Inc. v. Eastman Kodak Comp., 12 F.3d 353, 357 (2d Cir. 1994).

[FN8] Id.

[FN9] Ketchikan Pulp Co., 1998 WL 284964, at *9.

[FN10] Proposed 2013 MSGP Fact Sheet at 6.

Response See the permit, fact sheet, and response to Comment ID 0094.001.004.2015 EPA MSGP Response to Comments June 4, 2015

153 

### Issue Category: Section 1.2

- Permit Authorization

Comment ID 0070.001.006 Issue Category: 1.2

Author Name: Beth Goodnough Permit Authorization

Organization: Western Fuels Association Inc.

Table 1

- 2, column 1, third row is confusing. Should the word "of" be changed to "or"?

Response The text is correct as proposed. This category of dischargers addresses facilities covered under the MSGP that have a new operator.

Comment ID 0083.001.003 Issue Category: 1.2

Author Name: David Wagger Permit Authorization

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Coverage Under Alternative Permits Should Contain Information about the Application Process When An Interested Person Petitions U.S. EPA to Require an Alternative Permit.

The text of Proposed §1.2.3 ("Coverage Under Alternative Permits") leaves a big process gap between the following two consecutive sentences: "Any interested person may petition EPA to take action under this paragraph. If EPA requires [the permittee] to apply for an alternative permit, the Agency will notify [the permittee] in writing that a permit application is required." The accompanying Fact Sheet (Document EPA-HQ-OW-2012-0803- 0015) also provides no information regarding the application process after U.S

. EPA receives such a petition. Would such a petition automatically lead U.S. EPA to deny coverage under the 2013 MSGP to the permit applicant? Would U.S. EPA notify the permit applicant that a petition against its application was received? In any case, would the permit applicant have any ability to rebut or challenge such a petition? Even if there is a process articulated under other regulations, the Draft 2013 MSGP should provide information about the process of obtaining permit coverage when a petition a gainst a permit application is received by U.S. EPA.

Response EPA will provide all pertinent information to operators whenever any such action is taken. EPA does not contemplate alternate permits being needed by the vast majority of operators, so inclu ding detailed instruction or guidance is not necessary at this time.2015 EPA MSGP Response to Comments June 4, 2015

1 54 Issue Category: Section 1.2.1
- Submitting NOI

Comment ID 0041.001.001 Issue Category: 1.2.1

Author Name: Jason Ulseth & Jessica Sterling Submitting NOI

Organization: Chattahoochee Riverkeeper

Part 1.2.1.1

- We suggest improving the quality of Stormwater Pollution Prevention Plans (SWPPPs) by adding a requirement that the electronic Notice of Intent (eNOI) be accompanied by a completed SWPPP

checklist. This checklist would include the essential components of a SWPPP, providing direction to permittees as they prepare or update a SWPPP. The inclusion of a checklist in the NOI submission process would make certain that the development of the plan implements the essential components of a

SWPPP. A sim ilar provision was added to the GA Permit in 2011 during the stakeholder process.

Part 1.2.1.2

- We support the requirement that facilities must submit an eNOI for permit coverage. This will ideally make the process of submitting an NOI easier for facilities and make the process of determining if a facility is in compliance easier for EPA and other interested parties. Additionally, the posting of approved eNOIs online will improve the ability of the public to gain access to information about potentially harmful stormwater discharges and help them to protect local water resources.

Response The permit’s Part 5 requirements clearly explain what the SWPPP must address, so the Table of Contents for Part 5 is essentially the checklist the commenter recommends. In addition, EPA provides guidance on its stormwater website on developing SWPPPs. For these reasons, additional eNOI process is not

warranted.

EPA acknowledges the commenter’s support for providing public access to eNOIs.

Comment ID 0066.001.006 Iss ue Category: 1.2.1

Author Name: Timothy Carlstedt Submitting NOI

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 1.2.1.2 How to Submit Your NOI

In light of the 2013 MSGP requirement that all documents

- NOIs, NOTs, NOEs, etc.

- be submitted electronically, UWAG respectfully requests that EPA review its procedures for safeguarding electronically stored information to make sure sensitive or confiden tial information submitted by permittees is not inadvertently disclosed or distributed. Unless and until EPA confirms such safeguards, UWAG suggests EPA continue to allow paper submittals. (In any event, even if EPA prefers electronic submittals, it should continue to allow paper submittals or provide for a liberal waiver policy.)

Response EPA’s regulations provide that any information submitted to EPA under a permit may be claimed as confidential by the submitter. However, if no claim is made at the time of submission, EPA may make the information available to the public without further notice. See 40 CFR Part 122.7.2015 EPA MSGP Response to Comments June 4, 2015

155 EPA will continue to allow paper submittals under limited circumstances (i.e., the operator is located in an area with limited broadband Internet access; the operator has issues regarding computer access or capability) and as approved by the EPA Regional Office.

Comment ID 0080.001.002 Issue Category: 1.2.1

Author Name: Louis Warchot and Michael Rush Submitting NOI

Organization: The Association of American Railroads (AAR)

1. Timing and Conditions for Submittal of NOI and SWPPP are Unnecessarily Complicated in the Proposed MSGP.

AAR has reviewed the proposed process and timeframe for submittal of a NOI and website posting of a SWPPP. AAR believes that the additional requirements proposed in the MSGP will make compliance, in many instances, impractical within the timeline provided by EPA. Per Table 1

- 2 in the proposed MSGP, AAR understands that operators must submit a complete and accurate NOI no later than 90 days after permit issuance. In Part 1.2.2, one condition for continuation of permit coverage is based upon timely

submittal of a complete and accurate NOI requesting coverage under the new permit.

The MSGP contains numerous new requirements for best management practices (BMPs), endangered species, historic resources, and an overall requirement to implement new measures and develop a new or revised SWPPP within the 90 days from issuance of the MSGP. To receive a permit under the proposed MSGP, Part 1.2.1.2 provides that the operator must have submitted an NOI, designed and installed control measures as necessary to meet numeric and non

- numeric effluent limits, and have prepared an SWPPP (or updated an existing SWPPP). Facilities must prepare an SWPPP for their site before submitting an NOI for permit coverage (Proposed MSGP, p. 24). The Endangered Species requirement (to be submitted 30 days before the NOI) and "full compliance" with the Historic Properties requirement (prior to the submittal of an NOI) might require extensive research and lengthy reviews, including consultation with state and federal agencies. To compound the u ncertainty of preparing the SWPPP (as a companion to the NOI), if additional BMPs are required by EPA for permit compliance that require additional measures (e.g., subsurface disturbance for structural BMPs in new areas outside the permitted area), the process of revising the SWPPP could be significant, requiring more than 90 days to complete the process.

EPA should provide operators with an additional 90

- day extension (or greater) for instances where endangered species (Appendix E, Procedures Relating t o Endangered Species Protection) or historic resource issues (Appendix F, Procedures Relating to Historic Properties Preservation) require resolution before an NOI can be executed and permit coverage commenced. [FN3] Additionally, EPA should provide operat ors with an additional 90

- day extension (or greater) for NOI submittal from the date of completion of any required structural BMP.

AAR understands that a complete and accurate SWPPP might need to account for data furnished by EPA and/or other parties an d that requirements might be imposed after development of a proposed SWPPP and submittal of the NOI. This would most likely result in more time being needed for submittal of a revised SWPPP and NOI than the proposed 90

- day requirement. For example, in Part 2.2.1 of the proposed MSGP, facilities are required to control their discharge to meet applicable water quality standards. As mentioned in the fact sheet (page 31), sometimes waste load allocations (WLAs) can be difficult to comply with and EPA might impose additional measures to achieve TMDL compliance for the discharge. AAR further understands that one of the proposed purposes of the NOI is to determine whether additional water quality

- based requirements are necessary and enable EPA to inform the facilit y operator of specific monitoring requirements. However, the process and timing for the steps to achieve compliance with these2015 EPA MSGP Response to Comments June 4, 2015

156 requirements might be complex and take weeks and/or months to accomplish. In many cases, it is possible that the facility will submit or post a SWPPP which may not meet the controls objective without understanding EPA's anticipated requirements for the site. AAR recommends that EPA provide operators with an additional 90 day extension (or greater) for instances where required change s are necessary to SWPPPs and there are possible monitoring requirements.

Finally, the NOI requires the permittee to indicate if stormwater discharges to saline waters. EPA has proposed new benchmark metals concentrations based on hardness in the receiving water. This requirement will result in the need for hardness sampling and testing for the receiving waters, which likely will be a challenge for some locations and times of the year. Again, more time may be needed to accomplish this.

The issues note d above create the potential for violation of the 90

- day NOI requirement and a potential impossibility in terms of NOI submission for facilities where ESA or historic resources consultation is required, structural BMPs or substantial revision of BMPs is ne cessary, or extensive technical analysis is necessary to determine appropriate SWPPP elements. EPA should include appropriate procedural provisions allowing for more than 90 days for submittal of an NOI, as well as administrative continuation of existing N PDES coverage, where new MSGP conditions potentially require action and delay proper development of a SWPPP beyond the 90 days provided in the proposed MSGP.

[FN3] EPA has authority pursuant to 40 C.F.R. Part 122 to continue previously existing permit c overage where a timely application has been filed (see 40 C.F.R. § 122.6) or provide for schedules of compliance (40 C.F.R. § 122.47). Provision of additional time to complete the items identified falls within these and

other EPA NPDES authorities.

Response The permit changes from 2008 are not significant for the majority of operators. The permit’s effluent limits are largely the same so there would not be any significant new stormwater controls needed to comply with them. Endangered species investigating mainly requires more formal documentation of already established procedures, so most ongoing permittees would be able to perform the investigation in a timely manner. Greater than 90 days to submit an NOI will not be necessary in most cases. However, to accommodate extenuating circumstances, EPA may extend the 90

- day deadline on a case -by- case basis.

Regarding the requirement to enter waterbody hardness, existing permittees subject to metals monitoring will already have this information at their dis posal, as it was required in order to conduct benchmark monitoring under the 2008 MSGP. New facilities will be able to obtain this information in enough time for the NOI submittal provided they read and understand the permit in advance of filing for NOI

co verage. EPA is collecting this information at the time of the NOI submittal so that its electronic reporting system populates the correct benchmark monitoring limits for facilities subject to benchmark monitoring for metals. This information is not required to be entered for other facilities.

Comment ID 0085.001.031 Issue Category: 1.2.1

Author Name: Zachary Griefen et al. Submitting NOI

Organization: Conservation Law Foundation et al.

B. Comment on eNOI process

In the Fact Sheet, EPA states that permittees will input information about the location of their outfalls into the eNOI system, and the system "will use outfall location information to automatically determine the receiving waters the site discharges to and the impairment status." Although EPA's move to electronic2015 EPA MSGP Response to Comments June 4, 2015

157 permitting strengthens the program overall, in the experience of commenters, facility operators frequently make errors when reporting the latitude and longitude of their outfalls. These range from omitting the coordinates entirely to using a different coordinate system from the one the agency requested. Therefore, commenters suggest that EPA should not rely exclusively on the accuracy of the coordinates provided by permittees. The paper NOI (Appendix G) seeks information on the receiving waterbody for each outfall

the eNOI system should request something similar, so that information is at least available to EPA if the eNOI submission process generates questionable results.

Response EPA notes there are many tools available to operators for determining lat

- long coordinates (on

- line mapping, GPS units, etc.). In addition, the eNOI system’s automatic return of a facility’s receiving water based on inputed outfall location provides an accuracy check th at the operator should pay attention to (an incorrect receiving water should prompt a check on the coordinates submitted). Operators can override and manually enter the information if they do not believe the information returned to be correct. Operators ca n also choose to manually enter the receiving water information if they do not wish to use EPA’s automatic waterbody mapping service. EPA notes that operators must certify as to the accuracy of

the information submitted.

Comment ID 0086.001.005 Issue Category: 1.2.1

Author Name: Daniel Graham Submitting NOI

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

V. EPA Should Extend the Proposed Deadlines for NOI Submittal

The proposed deadlines for ensuring uninterrupted coverage under the new permit may be unworkable for some entities in the mining industries. EPA proposes that existing discharges under the 2008 MSGP will have 90 days from permit issuance to submit a complete NOI to obtain coverage under the new permit. Submission of a complete NOI requires an updated SWPPP and implementation of new control measures in Part 2.1. Many mining sites are not accessible year round, and this timeframe would not allow adequate

tim e to evaluate what changes may be necessary under the new permit, revise the SWPPP, and implement control measures all within 90 days of issuance of the new permit. Moreover, this timeframe could result in exposure to penalties for applicants in the event EPA does not promptly notify them of receipt of complete NOIs. EPA should consider revising the NOI submittal deadlines and official dates of permit coverage to allow for existing operations to submit the NOI prior to updating the SWPPP or, at a minimum, p rior to implementing the revised SWPPP. Another possible approach would be to require NOI submission alone within 30 days of permit issuance, followed by subsequent deadlines (e.g., 60 days) for updating the SWPPP and for implementing control measures (e.g ., 3

- 6 months). This approach would still require prompt updating of SWPPPs, while allowing a more reasonable timeframe for implementing any changes. The additional time for implementation is critical for mining operations at remote sites that are

not easily accessible or perhaps inaccessible altogether during certain seasons.

Response See response to Comment ID 0080.001.002.

Comment ID 0093.001.012 Issue Category: 1.2.1

Author Name: Amanda Aspatore Submitting NOI

Organization: National Mining Association (NMA)2015 EPA MSGP Response to Comments June 4, 2015

158 VI. EPA Should Extend the Proposed Deadlines for NOI Submittal

The proposed deadlines for ensuring uninterrupted coverage under the new permit may be unworkable for some entities in the mining industries. EPA proposes that existing dischargers under the 2008 MSGP will have 90 days from permit issuance to submit a complete NOI to obtain coverage under the new permit. Submission of a complete NOI requires an updated SWPPP and implementation of new control measures in Part 2.1. Many mining sites are not accessible year round, and this timeframe would not allow adequate

ti

me to evaluate what changes may be necessary under the new permit, revise the SWPPP, and implement control measures all within 90 days of issuance of the new permit. Moreover, this timeframe could result in exposure to penalties for applicants in the event EPA does not promptly notify them of receipt of complete NOIs.

EPA should revise the NOI submittal deadlines and official dates of permit coverage to allow for existing operations to submit the NOI prior to updating the SWPPP or, at a minimum, prior to implementing the revised SWPPP. Another possible approach would be to require NOI submission alone within 30 days of permit issuance, followed by subsequent deadlines (e.g., 90 days) for updating the SWPPP and for implementing control measures (e.g., 3

- 6 m onths). This approach would still require prompt updating of SWPPPs, while allowing a more reasonable timeframe for implementing any changes. The additional time for implementation is critical for mining operations at remote sites that are not easily acces sible or perhaps inaccessible altogether during certain seasons.

Response See response to Comment ID 0080.001.002.2015 EPA MSGP Response to Comments June 4, 2015

159 

### Issue Category: Section 1.3

- Terminating Coverage

Comment ID 0086.001.010 Issue Category: 1.3

Author Name: Daniel Graham Terminating Coverage

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Part 1.3.3: NMA maintains that the proposed termination of coverage condition provision is contrary to the CWA. Federal courts of appeals have consistently held that, absent a "discharge of a pollutant," there is no CWA violation and thus, point sources ar e neither obligated to comply with regulations governing point source discharges nor seek or obtain permit coverage.[FN14] The MSGP's termination of coverage provision nevertheless continues to include language allowing for termination when "you have cease d operations at the facility, there are not or no longer will be discharges of stormwater associated with industrial activity from the facility, and you have already implemented necessary sediment and erosion controls[.]" Under controlling precedents, if t here are indeed no longer any discharges of stormwater associated with industrial activity at a given facility, that alone warrants termination of coverage under the MSGP, regardless of whether some operations at the facility are ongoing. EPA should revise this provision to allow for the submission of a notice of termination when there are no longer discharges of stormwater associated with industrial activity from a facility without imposing any additional conditions.

[FN14] See, e.g., Nat'l Pork Produc ers Council v. EPA, 635 F.3d 738, 750

- 51 (5th Cir. 2011); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504

- 05 (2d Cir. 2005); NRDC v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988).

Response The triggering conditions for submitting a Notice of Termination are reasonable and consistent with the NPDES regulations and CWA authority. After ceasing industrial operations and stormwater discharging, submitting a Notice of Termination enables operators to discontinue inspecting, monitoring and reporting

information and enables EPA to cease compliance tracking. For these reasons it is in the operator’s interest to submit an NOT, otherwise the permit would still be in effect for that operator, requiring it to comply with the permit’s limits, and risking liability for the operator for any non -compliance.

Comment ID 0093.001.017 Issue Category: 1.3

Author Name: Amanda Aspatore Terminating Coverage

Organization: National Mining Association (NMA)

Part 1.3.3: NMA maintains that the proposed termination of coverage condition provision is contrary to the CWA. Federal courts of appeals have consistently held that, absent a "discharge of a pollutant," there is no CWA violation and thus, point sources ar e neither obligated to comply with regulations governing point source discharges nor seek or obtain permit coverage. [FN22] The MSGP's termination of coverage provision nevertheless continues to include language allowing for termination when "you have ceas ed operations at the facility, there are not or no longer will be discharges of stormwater associated with industrial activity from the facility, and you have already implemented necessary sediment and erosion controls[.]" Under controlling precedents, if there are indeed no longer any discharges of stormwater associated with industrial activity at a given facility, that alone warrants termination of coverage under the MSGP, regardless of whether some operations at the facility are ongoing. EPA should revise and simplify this provision to allow for the submission of a notice of termination when there are no longer discharges of stormwater associated with industrial activity from a facility without imposing any additional2015 EPA MSGP Response to Comments June 4, 2015

160 conditions.

[FN22] See, e.g., Nat'l Pork Producers Council v. EPA, 635 F.3d 738, 750

- 51 (5th Cir. 2011); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504

- 05 (2d Cir. 2005); NRDC v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988).

Response See response to Comment ID 0086.001.010.2015 EPA MSGP Response to Comments June 4, 2015

161 

### Issue Category: Section 1.4

- Conditional Exclusion for No Exposure

Comment ID 0037.001.002 Issue Category: 1.4

Author Name: Michael McIntyre Conditional Exclusion for No Exposure

Organization: Idaho Department of Environmental Quality

Page 11 1.4 Conditional Exclusion for No Exposure. It is not clear from the language in this section whether a facility that does not yet have coverage under the MSGP can apply for the "No Exposure Certification" or, whether a facility must first obtain coverage under the MSGP to be eligible for this certification. It has come to DEQ's attention that some facilities have determined on their own that they do not need permit coverage because their industrial processes are not exposed to stormwater. The permit should clarify that such a determination is made by EPA through the review of the No Exposure Certification Form.

This section of the permit should reference the No Exposure Certification Form, included as Appendix K.

Facilities with zinc galvanized roofing s hould not be eligible for EPA's no exposure certification, unless they provide adequate treatment to remove pollutants associated with galvanized materials. Off gassing from rooftop vents and baghouses, at certain types of facilities, has been shown to res ult in pollutant deposition (NW Environmental Business Council, 2013). A roof is insufficient protection in these cases and these facilities should be required to obtain permit coverage, unless they provide adequate treatment to remove pollutants from the stormwater coming into contact with their facility.

Response The language in Part 1.4 refers to facilities that would be covered by the MSGP based on being identified in 122.26(b)(14) of the stormwater regulations, and does not mean a facility must be f irst covered by the MSGP before being allowed to submit a No Exposure Certification. The language of the No Exposure Certification form makes it clear that the no exposure provision applies to both facilities with and without prior MSGP coverage: “Submission of this No Exposure Certification constitutes notice that the operator identified in Section B does not require permit authorization under EPA’s Stormwater Multi Sector General Permit for its stormwater discharges associated with industrial activity fro m the facility identified in Section D of this form due to the existence of a condition of no exposure.” The permit and Fact Sheet make clear that exposed metals such as aluminum, copper and zinc can constitute exposed pollutants

sources which would make a facility ineligible for the no exposure waiver. Language from the Fact Sheet for Part 5.2: “Likewise, industrial structures containing materials that could become pollutants discharged in stormwater (e.g., copper cladding on buildings or zinc from galvanized fences) must also be identified as potential pollutant sources.”

EPA has added a reference to the Appendix K No Exposure Certification form.

Comment ID 0085.001.030 Issue Category: 1.4

Author Name: Zachary Griefen et al. Conditional Exclusion for No Exposure

Organization: Conservation Law Foundation et al.

EPA should modify section 1.4 of the Permit to make clear that appropriate monitoring should be completed prior to certification of no exposure where a facility has roof vents or stacks from industrial processes. This monitoring should consist of at least one round of sampling of the following parameters:2015 EPA MSGP Response to Comments June 4, 2015

162 (a) any parameters for which EPA has established effluent or benchmark limits for the relevant category of industry;

(b) any applicable impairment pollutants;

(c) any heavy metal the company has reas on to believe it is emitting into the air; and

(d) TSS.

We further propose the following change to the language of the last row of Section E, the "Exposure Checklist" section of the No Exposure Certification Form:

Particulate matter or visible deposits of residuals from roof stacks and/or vents not otherwise regulated (i.e., under an air quality control permit) and present evident in the storm water outflow. Note: Deposits of particles or residuals from roof stacks/vents not otherwise regulated and which could be mobilized by storm water runoff, are considered exposed.

Response The Certification form is signed by operators under penalty of law. The form contains the prerequisite conditions and checklists operators must consider and check off to be eligible for no exposure before signing. This approach functions to ensure no exposure accuracy, making the pre

- monitoring commenter
suggests unnecessary.

Comment ID 0085.001.060 Issue Category: 1.4

Author Name: Zachary Griefen et al. Conditional Exclusion for No Exposure

Organization: Conservation Law Foundation et al.

32. Modify section 1.4 of the Permit to make clear that appropriate monitoring should be completed prior to certification of no exposure where a facility has roof vents or stacks from industrial processes;

Response See response to Comment ID 0085.001.03 0.2015 EPA MSGP Response to Comments June 4, 2015

163 

### Issue Category: Section 1.5

- Permit Compliance

Comment ID 0066.001.007 Issue Category: 1.5

Author Name: Timothy Carlstedt Permit Compliance

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 1.5 Permit Compliance

The 2013 MSGP provides that where the permit requires a discharger to perform corrective action (the triggering event), failure to perform the corrective action constitutes a permit violation, regardless of whether the underlyi ng triggering event constitutes a permit violation. The permit gives benchmarks as an example: even though a benchmark exceedance is not a permit violation, failure to timely perform the corrective action required by the exceedance is a permit violation.

Because benchmarks are meant to be tools for dischargers to evaluate their stormwater controls, UWAG suggests flexibility is appropriate for basing permit violations on benchmark exceedances. Just as a benchmark exceedance (or, more accurately, the average of four quarterly sampling results exceeding an applicable benchmark) does not constitute a permit violation, failure to timely perform corrective action after the benchmark exceedance should not necessarily constitute a permit violation. Provided a

disc harger is meeting the relevant technology and water quality

- based effluent limitations for stormwater discharges associated with industrial activity, he or she is in compliance with the permit and should not be subject to enforcement. Enforcement must be l imited to violations of CWA requirements. [FN7]

[FN7] If enforcement is to remain a possibility in the final 2013 MSGP for failure to perform corrective action after a benchmark exceedance, UWAG respectfully requests that EPA allow dischargers the
opportunity to demonstrate that a particular benchmark is inapplicable to the discharge at a particular outfall (obviating the need for corrective action).

Response The final MSGP requires a SWPPP review to be conducted in the event of a four quarterly averag e benchmark exceedance to determine if modifications are necessary to meet the effluent limits in the
permit . This does not mean that an action is required in all cases, if the permittee makes a determination that modifications are not necessary to meet the effluent limits (both tech

- based and water quality -based). EPA agrees with the commenter that benchmark monitoring is to be used as a tool for dischargers to evaluate the adequacy of their controls. While an exceedance of a benchmark concentration is not a permit violation in and of itself, an exceedance serves as an indication that there may be an issue on the site that warrants further investigation. The result of the investigation may be that no corrective action is needed (because the permit’s technology and water quality

- based effluent limits are met), or that there is an issue on the site that needs remedying to ensure the effluent limits are met. Another possible outcome is that the permittee makes a determination that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practices, in which case no corrective actions are necessary. See also the Fact Sheet re benchmark monitoring and the monitoring
response to comment essay

.

Comment ID 0083.001.004 Issue Category: 1.5

Author Name: David Wagger Permit Compliance

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)2015 EPA MSGP Response to Comments June 4, 2015

164 Permit Compliance Should Be Clarified Concerning Control Measures and Should Distinguish Between Different Types or Degrees of Non

- Compliance.

Proposed §1.5 ("Permit Compliance") states that "[a]ny noncompliance with any of the requirements of this permit constitutes a violation of this permit, issued under the CWA". While the intent of this is seemingly clear, its practical implementation is not clear and potentially problematic. First, for those parts of proposed §2.1 ("Control Measures"), including §8 ("Sector Specific Requirements"), that read more like, and are closer to, helpful guidance than specific requirements, determining what constitutes compliance is potentially subjective and open to interpretation. Second, there seems to be no distinction

b etween different types or degrees of violation: A violation for a site map that is missing one or two required features or not absolutely up -to- date seems to be equivalent to a violation for failing to take required corrective action or failing to collect required discharge samples. Proposed §1.5 should be revised to clarify these issues. Additionally, compliance should be specifically clarified in proposed §2 ("Control Measures and Effluent Limits") and §8.

Response EPA disagrees that different levels of non

- compliance or consequences of violations need additional definition or explanation than what is contained in the standard permit conditions in Appendix B.1 Duty To Comply. EPA invariably employs discretion, including whether to enforce and what type of penalty to impose, when it becomes aware of non

- compliance with permit provisions.

Comment ID 0092.001.014 Issue Category: 1.5

Author Name: Jeffrey Longsworth Permit Compliance

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 1.5, (Permit Compliance): The language in this section is repeated and further discussed in Part 4. It seems to be out of place in Part 1 addressing permit eligibility criteria and should be deleted. For additional FSWA comments, see Part 4 Correct ive Action comments below.

Response EPA disagrees because Part 1 “Coverage Under this Permit” encompasses more than just eligibility requirements.2015 EPA MSGP Response to Comments June 4, 2015

165 

### Issue Category: Section 2.1

- Control Measures

- General

Comment ID 0021.001.002 Issue Category: 2.1

Author Name: Lee Epstein Control Measures

- General

Organization: Chesapeake Bay Foundation

Part 2.1.1

- This section has been improved over the 2008 permit language ("You must consider..."), using instead the construction, "You must select, design, install, and implement..." measures to meet non

numeric effluent limits and water quality

- based ef fluent limits.

Response EPA appreciates the commenter’s support for the new language.

Comment ID 0064.001.001 Issue Category: 2.1

Author Name: Katie Kistler Control Measures

- General

Organization: AK Steel Corporation

Basis for Technology Based Effluent Limits Contained in Section 2 Control Measures

Section 2 of the draft MSGP contains several prescriptive requirements (i.e., non

- numeric effluent limits) with regard to storm water measures and controls. These include the requirement to cover all "dumpsters" and to remove sediment from all catch basins once the sediment reaches certain levels. The language related to these prescriptive requirements in the draft MSGP is different than the language in the 2008

MSGP. AK St eel's comments specific to these requirements are presented below in another section of these comments. The issue addressed here is the regulatory basis for these effluent limits.

The Fact Sheet for the draft permit states that these 'effluent limits' are based upon Best Professional Judgment (BPJ). In order for USEPA to include BPJ limits in an NPDES permit, the factors at 40 CFR Part 125.3 must be addressed (see separate requirements for BPT, BCT and BAT effluent limits in the regulation). While the Fact Sheet for the 2013 MSGP contains a general discussion of the requirements of 40 CFR Part 125.3, the Fact Sheet does not adequately address all factors at 40 CFR Part 125.3 for the specific effluent limits required by the permit (e.g., covering of dumpsters, catch basin cleaning, of certain areas). AK Steel therefore believes that the permit should not made final until a fulsome review of all technology

- based effluent limits contained in the permit is made in the context of each of the specific applicabl e factors at 40 CFR 125.3 (including cost) and that review is made available for public comment.

Furthermore, the discussion on page 20 of the Fact Sheet appears to indicate that facilities are free to use a variety of control measures to meet the efflue nt limits in the permit. This discussion in the Fact Sheet does not appear to square with the prescriptive requirements contained in Part 2 of the permit.

The Relationship Between the Requirements of Section 2. and Storm Water Monitoring Results

The dr aft permit requires both discharge monitoring (e.g., benchmark sampling and visual observation of the discharge) and the implementation of the specific control measures listed in Section 2 of the permit. The draft permit contains the following statement at various locations throughout the document:

The benchmark concentrations are not effluent limitations; a benchmark exceedance, therefore, is not a permit violation. Benchmark monitoring data are for your use to determine the overall effectiveness of

your control measures and to assist you in knowing when additional corrective action(s) may be necessary2015 EPA MSGP Response to Comments June 4, 2015

166 to comply with the control measures / best management practices (BMPs) in Part 2.

Through experience, it is entirely possible that a facility may dischar ge storm water below benchmark concentrations and produce storm water discharges without objectionable visual characteristics (i.e., achieve good discharge quality) without the complete implementation of all specific requirements

contained in Section 2. Fo r example, a number of open dumpsters or full catch basins may have no discernible impact on the actual quality of storm water discharges. Or, a facility may rely on a settling basin or other structural control to achieve good storm water discharge quality, rather than rely on all of the prescriptive requirements in Section 2 of the draft permit.

Considering that storm water discharge of good quality is the ultimate goal of the storm water program, AK Steel believes that dischargers should be able to use monitoring data collected under the permit, or data collected more frequently than required by the permit, as evidence of the good overall effectiveness of their control measures. In such circumstances, the discharger should not be considered out of compliance with Section 2 of the permit, because actual storm water monitoring data demonstrate

disch arge of good quality. AK Steel suggests that the MSGP contain a statement to this effect, perhaps at

the end of Section 2:

If the monitoring data applicable to the discharger (e.g., benchmark monitoring and visual observations) demonstrate that discharges are below the applicable benchmark concentrations and is generally free objectionable visual characteristics, the discharger shall be considered to have met the requirements of

Section 2. herein.

The overall point here is that discharge of good quality should be demonstrative and evidence of compliance. A facility should not be considered in violation of the "control measures" section of the permit when actual monitoring data demonstrate good discharge quality.

Response

EPA does consider factors such as cost and industry standards when establishing limits based on best professional judgement (BPJ). Many of the BPJ effluent limit controls have been in the MSGP for a long time and are justified in numerous ways. The “catch basin cleaning” effluent limit cited by the commenter is based on more than just EPA’s BPJ. Catch basin cleaning is necessary to ensure the functiuonality of the control and has a basis in the Part 2.1 requirement: “The selection, design, installation, and implementation of these cont rol measures must be in accordance with good engineering practices and manufacturer’s specifications.” “Covering of dumpsters” has been a listed stormwater control/effluent limit since the 1995 MSGP. These and other exposure minimization practices are one of the foundations of the NPDES stormater program resulting from the 1987 CWA amendments. The 1995 MSGP Fact Sheet cites many sources for the sector

- specific information, including stormwater controls to justify thier

inclusion in the initial MSGP. For ins tance, covering of dumpsters is listed in Sector Y - Rubber, Miscellaneous Plastic Products and Miscellaneous Manufacturing Industries: “Additional information concerning these manufacturing processes and the industrial sector itself can be found in the fo llowing documents: “Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Tire and Synthetic Rubber Processing Point Source Category,” EPA 440/1 -74-013a; “Development Document for Effluent Limitations Guidel ines and New Source Performance Standards for the Fabricated and Reclaimed Rubber Segment of the Rubber Processing Point Source Category,” EPA

440/1-74- 030a; and Development Document and Effluent Limitations Guidelines and Standards for the

Plastics Moldin g and Forming Point Source Category,” EPA 440/1

- 84/069.” The stabilization limit has also been in the MSGP for 20 years and its justification also can be found in the record for that permit. All of the limits EPA includes as BPJ have undergone a similar process (although some were adapted from specific sectors but have been made general requirements because of the ubiquity of the pollutand sourves/pollutants and the controls represent some of the cheapes and most effective ways of minimizing2015 EPA MSGP Response to Comments June 4, 2015

167 pollutants in discharges. The 2015 s fact sheet contains further information supporting the BPJ technology- based effluent limits in the permit. EPA’s consideration of cost and industry standards is also evident through the permit’s use of the term “minimize” in the effl uent limits, where minimize is defined as: “to reduce and/or eliminate to the extent achievable using control measures that are technologically available and economically practicable and achievable in light of best industry practices.” For all of these

rea sons, EPA has satisfied the regulatory requirements at 40 CFR 125.3. EPA agrees with the comment that dischargers should be able to use monitoring data collected under the permit, or data collected more frequently than required by the permit, as evidence of the good overall effectiveness of their control measures. Indeed, the purpose of benchmark monitoring, as explained in the Fact Sheet, is to provide an indicator of the performance of the measures undertaken to meet the effluent

limitations contained in the permit. EPA declines to add the statement suggested by the commenter in Part 2 because permittees must meet all applicable technology

- based effluent limits in the permit, which reflect the technological capability of permittees to control pollutants i n their discharges and are independent of water quality

- based requirements (i.e., they are technology

- based limits based on the applicable factors listed at 40 CFR 125.3, including cost). However, EPA stresses that common sense must be employed when identifying potential pollutant sources and selecting controls to minimize pollutants in discharges. For the commenter’s scenario, common sense would dictate that open dumpsters could be a likely source of pollutants, and thus the obligation to comply with the effluent limit that would control that source (i.e., closing the dumpsters will very likely reduce the amount of pollutants being discharged from the site to waters of the United States). If the dumpsters were in no way going to add pollutants to a stormwat er discharge (e.g., if they were in a secondary containment area with zero discharge potential), the permittee would document in the SWPPP that was the case and that neither a control nor compliance with the effluent limit would be done for the non -source dumpsters. Refer to EPA’s Q&A Vol. 2 document from 1993 (answer #69): “EPA’s general permits include procedures for filing a Notice of Termination (NOT) form when there is no longer a potential for storm water associated with industrial activity to occur. ” The Agency also alludes to the act of not discharging from an industrial site not needing coverage in the answer to Q 11: “Therefore, if an industrial facility does not have a storm water discharge from its holding pond during typical storm events but has a storm water discharge in the event of a large storm, that discharge should be covered under a NPDES permit. (i.e., only the latter case in which a large storm event has the potential to cause a discharge is when that area of the industrial site needs p ermit coverage).

Comment ID 0066.001.008 Issue Category: 2.1

Author Name: Timothy Carlstedt Control Measures

- General

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 2.1 Control Measures (Technology

- Based Effluent Limitations)

Permits for discharges associated with industrial activity must meet applicable provisions of the CWA. See Clean Water Act § 402(p)(3)(A), 33 U.S.C. § 1342(p)(3)(A). Those provisions inclu de the requirement that the permit include any applicable technology

- based effluent limitations (achieved through the use of "best practicable control technology currently available" [BPT], "best available technology economically achievable" [BAT], and "be st conventional pollutant control technology" [BCT]). Id. at § 301(b), 33 U.S.C. § 1311 (b).

Where EPA has developed effluent limitations guidelines (ELGs) for an industrial category, they serve as the technology

- based effluent limitation (TBEL). Id. at § 304(b), 33 U.S.C. § 1314(b). If numeric effluent limitations are infeasible, EPA may specify control measures or best management practices (BMPs) to achieve the BPT/BAT/BCT standard. 40 C.F.R. § 122.44(k)(3). Where EPA has not established ELGs (in2015 EPA MSGP Response to Comments June 4, 2015

168 the form of numeric limits or BMPs), the permit writer must use his or her best professional judgment to develop permit terms and conditions that will achieve the BPT/BAT/BCT standard. Clean Water Act § 402(a)(1), 33 U.S.C. § 1342(a)(1).

UWAG suggests EPA make explicit in the 2013 MSGP that by complying with the Non - Numeric Technology- Based Effluent Limits in Part 2.1.2 and, where applicable, the Numeric Effluent Limitations Based on Effluent Limitations Guidelines in Part 2.1.3 (as well as any additional appl icable sector

specific limits in Part 8), dischargers will be in compliance with the BPT/BAT/BCT standards for discharges associated with industrial activity. By making this explicit in the 2013 MSGP, EPA will make clear that permit compliance equals compl iance with the BPT/BAT/BCT standards.

Part 2.1.2 Non

- Numeric Technology

- Based Effluent Limits (BPT/BAT/BCT)

We believe EPA generally has struck a fairly reasonable balance between specificity and flexibility in the

control measures identified in this s ection. [FN8] We provide the following examples of where we think EPA can improve certain requirements.

[FN8] We note that EPA's authority under the CWA is limited to regulating the discharge of pollutants. To the extent any of the proposed control measures in the 2013 MSGP go beyond EPA's authority (i.e., regulating "flow" instead of the discharge of pollutants), UWAG objects.

Response The permit and Fact Sheet clearly state that the effluent limits in Part 2.1.2 are based on BPT/BAT/BCT,

which addresses the commenter’s concern.

Comment ID 0067.001.005 Issue Category: 2.1

Author Name: Timothy Pohle Control Measures

- General

Organization: Airlines for America (A4A)

4. Section 2.1

- Control Measures

Use of Term "Ensure" is problematic where it connotes an absolute prohibition. For example, in Section 2.1.2.2 (Good Housekeeping) the following language appears.

"Ensure that waste, garbage, and floatable debris are not discharged to receiving waters by keeping exposed areas free of such materials or by intercepting them before they are discharged."

Term "ensure" in this context establishes a zero discharge standard that is neither possible to achieve nor supported in record. The Agency should identify and remedy all such uses of this term unless it can identify record support for the proposition that the event to be "ensured" against is within the power of dischargers to prevent by use of BAT/BCT

- level technologies.

Response

EPA has revised Part 2.1 .2.2 as follows: “ Minimize the potential for waste, garbage and floatable debris to be discharged by keeping exposed areas free of such materials, or by intercepting them before they are discharged. ” These revisions address the commenter’s concern.

Comment ID 0073.001.012 Issue Category: 2.1

Author Name: Kelly Norton Control Measures

- General2015 EPA MSGP Response to Comments June 4, 2015

169 Organization: Arizona Mining Association (AMA)

Part 2.1: In the second to last sentence of the first paragraph in Part 2.1, there is language stating that if a permittee finds that its control measures are not achieving their intended effect of minimizing pollutant discharges, the control measures must be modified in accordance with the corrective action requirements in Part 4. However, the requirement to determine whether control measures are minimizing pollutant discharges is not one of the identified corrective action triggers in Part 4. This languag e should be removed from Part 2.1 since it is creates internally inconsistent permit provisions.

Response EPA has revised the language in Part 2.1 in response to this comment so that it is consistent with the corrective action triggers in Part 4. Part 2 .1 now reads: “ If you find that your control measures are not achieving their intended effect of minimizing pollutant discharges to meet applicable water quality standards or any of the other non

- numeric effluent limits in this permit, you must modify these control measures per the corrective action requirements in Part 4. ”

Comment ID 0085.001.001 Issue Category: 2.1

Author Name: Zachary Griefen et al. Control Measures

- General

Organization: Conservation Law Foundation et al.

I. Technology Based Effluent Limits

Although EPA has been issuing general multi

- sector industrial stormwater permits since 1992, EPA still has not promulgated national effluent limitation guidelines for stormwater discharged from the industries

covered b y this permit, as required by Section 301 of the Clean Water Act. [FN1] In the absence of national effluent limitation guidelines, EPA has once again set effluent limitations in the permit on the basis of its best professional judgment. But the nonnumeric effluent limitations that EPA has selected for the draft MSGP are essentially the same inadequate requirements that have failed to control the discharge of pollution from industrial facilities under previous iterations of the MSGP.

EPA's record demonstrates that the non

- numeric effluent limitations in the MSGP are ineffective -the MSGP does not adequately control the discharge of pollution from many industrial facilities. Except that

EPA has established numeric effluent limitations in national effluent li mitation guidelines for the nine categories of discharges listed in Table 6

- 1 of the MSGP, which together cover a vanishingly small fraction of the stormwater discharges authorized under this permit.. Permittees routinely exceed benchmarks, do not comply with the effluent limitations, and many either take no corrective action, or take inadequate corrective actions. Meanwhile, neither EPA nor the state regulators

- who model their

own MSGPs on EPA's

- have the time and resources to monitor compliance and enforce the non -numeric requirements adopted under this permitting approach. EPA cannot issue another permit so dependent on technology- based, non

- numeric effluent limitations. EPA has tried and failed with this approach for
twenty years.

Instead, EPA must finally use the hundreds of thousands of data points of pollution concentrations in industrial stormwater that are available to the agency from its own databases and from state regulators to

establish numeric effluent limitations for different industrial s tormwater discharges. Ultimately, those numeric effluent limitations must be set by national regulation. In the first instance, however, EPA must

include numeric effluent limitations in this MSGP. Inclusion of numeric effluent limitations is both

feasible and essential to carrying out EPA's duties under the Clean Water Act.2015 EPA MSGP Response to Comments June 4, 2015

170 A. The Draft MSGP Relies Almost Entirely On Non

- Numeric Effluent Limits And Self

- Evaluation By Permittees. EPA Has Considerable Evidence That This Permitting Approach Is Ineffective And Deeply Flawed, And Fails To Comply With the Clean Water Act.

The technology based effluent limitations that EPA has included in this permit, as in previous iterations of the MSGP, are almost entirely non

- numeric (narrative) and rely heavily on the permittee to select control measures for itself: "EPA generally does not mandate specific stormwater control measures operators must select, design, install and implement. It is left to the operator to determine what must be done to meet the applicable effluent limits." Fact Sheet at 20.

Further, EPA has once again left it to permittees not only to select their own control measures, but also to determine for themselves whether those control measures are in fact meeting the permit's effluent limits.

Without numeric effluent limits, this is a task that is challenging even for a neutral observer. EPA provides numeric "benchmarks" and other indicators that a permittee might use to determine whether it is meeting the BAT standard, but permittees are free to disregard these indicators.

The MSGP requires only that permittees "review" their performance if their discharges exceed

benchmarks or another indicator manifests. MSGP at 22

- 23 (§4.1). But the MSGP leaves permittees free to decide for themselves that, notwithstanding their failure to meet benchmarks or other indicators, that they are nonetheless in compliance with the BAT/BCT standard (as applicable) and need not take any

further action. Permittees are in fact invited to "make a determination that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet the technology based effluent limits. . ." MSGP at 35 (§ 6.2.1.2).

EPA has substantial evidence that this permitting approach

- self

- evaluation by polluters using non

numeric effluent limitations as the metric of performance

- is ineffective. Throughout the Fact Sheet, EPA implicitly or explicitly states its concern that the MSGP is not adequately controlling the discharge of pollutants to waters of the United States. EPA notes on page 13 that the current MSGP does not adequately prevent toxic pollutants in stormwater discharges from NPDES

- permitted facilities from causing sed iment contamination throughout the country, including recontamination of Superfund sites. See Fact Sheet at 13. EPA also notes that it is aware of a number of concerns about the adequacy of the permit's primary monitoring requirements and methodology - the benchmark monitoring program

- and of evidence that many permittees do not comply with those requirements or take effective corrective actions:

EPA also requested a copy of the facility's SWPPP and discharge monitoring reports (DMRs) from 35

facilities and received SWPPPs and DMRs from 20 facilities. Based on a review of this very limited sample, EPA found that most facilities (89%) are developing complete SWPPPs, but there is significant noncompliance with monitoring requirements. Only 35% of facilities submitted complete monitoring data and all facilities that submitted benchmark monitoring data had at least one benchmark exceedance. Of the facilities that completed benchmark monitoring, 84% identified corrective actions. None of the

facilities reviewed had documented a clear reduction in benchmark exceedances after implementing corrective actions; most facilities continued to have benchmark exceedances after the corrective actions.

In a similar vein, commenters have reviewed Annual Certification Reports and Discharge Monitoring Reports submitted by a number of industrial facilities in New York and Connecticut that, although not directly regulated by EPA, are regulated under MSGPs modeled very closely on EPA's, with very similar benchmark monitoring and corrective action provisions. Commenters have found examples of facilities that routinely exceed benchmarks for many years in a row, yet every year submit a report stating that they have reviewed their SWPPP and concluded that no modifications are required. Other facilities state in their reports that they are taking unspecified corrective action, yet continue to exceed benchmarks year2015 EPA MSGP Response to Comments June 4, 2015

171 after year. In the commenters experience, with some exceptions for larger corporations with sophisticated

environmental ma nagement practices, it is relatively rare to find a permittee that has reported past exceedances but corrected them on its own. Typically, improvements only occur with the involvement of the regulator (or citizen enforcement).

EPA also received an extrem ely critical review of the industrial stormwater general permit from the National Research Council. Before issuing the last iteration of this MSGP, in 2008, EPA turned to the National Research Council and "requested that the National Research Council (NRC) review its current permitting program for stormwater discharge under the Clean Water Act and provide suggestions for improvement." [FN2] The results of that request were published in 2009, as the National Research Council Report "Urban Stormwater Manageme nt in the United States."

With respect to industrial stormwater, the National Research Council's report can be summarized briefly: industrial facilities are highly concentrated sources of pollution, especially toxic metals and organic toxics, and EPA's p ermitting program is not currently able to adequately monitor pollution in stormwater associated with industrial activity, let alone able to ensure that this source of pollution is adequately controlled. [FN3] Among the many problems identified by the Nati onal Research Council with the industrial stormwater permit, the following are the most glaring:

•Industrial facilities are significant sources of toxicants: heavy metals and organic toxics. For example, in sampling drawn from EPA's MS4 monitoring and in put into the National Stormwater Quality Database, the absolute highest metal concentrations in discharges were observed in industrial areas, and the median

metal concentrations in industrial areas "were about three times the median concentrations observed in

open- space and residential areas."[FN4]

•General permits need clear and enforceable terms because EPA does not have adequate resources for sophisticated site

- specific oversight. "Federal and state NPDES permitting authorities do not presently have, and can never reasonably expect to have, sufficient personnel to inspect and enforce stormwater regulations on more than 100,000 discrete point source facilities discharging stormwater."[FN5] Therefore, "stormwater discharges would ideally be regulated thro ugh . . . strict limits on both the quantity and quality of stormwater runoff into surface waters, and rigorous monitoring of adjacent waterbodies to ensure that they are not degraded by stormwater discharges."[FN6]

•The NRC concluded that the industrial stormwater monitoring program suffers "from (1) a paucity of data, (2) inconsistent sampling techniques, (3) a lack of analyses of available data and guidance on how permittees should be using the data to improve stormwater management decisions, and (4) r equirements that are difficult to relate to the compliance of individual dischargers."[FN7]

•The effluent limits in the MSGP "have not been updated to reflect the best available technology relevant to pollutants of most concern."[FN8]

•"There is limite d information available on the effectiveness and longevity of many SCMs [structural control measures], thereby contributing to uncertainty in their performance."[FN9] Thus, EPA's heavy reliance on structural control measures (SCMs) without the backstop of numeric effluent limits is questionable.

•"The lack of rigorous end -of- pipe monitoring, coupled with EPA's failure to use flow or alternative measures for regulating stormwater, make it difficult for EPA to develop enforceable requirements for

stormwater dischargers. Radical changes to the current regulatory program[] appear necessary to provide meaningful regulation of stormwater dischargers in the future."[FN10]2015 EPA MSGP Response to Comments June 4, 2015

172 [FN1] Except that EPA has established numeric effluent limitations in national effluent li mitation guidelines for the nine categories of discharges listed in Table 6

- 1 of the MSGP, which together cover a vanishingly small fraction of the stormwater discharges authorized under this permit.

[FN2] National Research Council, Urban Stormwater Management in the United States, at vii, National Academies Press (2009) ("USM").

[FN3] USM at 329 -332.

[FN4] USM at 183.

[FN5] USM at 11.

[FN6] USM at 3.

[FN7] USM at 329.

[FN8] USM at 282.

[FN9] USM at 1 -2.

[FN10] USM at 3 -4.

Response Regarding EPA’s decision to include primarily non

- numeric effluent limits in the 2015 MSGP, see the monitoring response to comment essay. See also the fact sheet section describing the limits in Part 2 and

the bases for them.

Additionally, EPA’s new e -re porting tools are expected to improve compliance and enhance EPA’s ability to monitor permit effectiveness. All general permits rely on permittee decision

- making, as general permits are an administrative and practical approach for covering many discharges that could not otherwise all be issued individual permits. EPA has tried to strike a balance between its own oversight capabilities and sufficiently rigorous permit requirements that prescribe how permittees assess and improve their own stormwater manageme nt program. Each permit iteration seeks to improve on the end

result— protection of water quality.

While EPA agrees that receiving water monitoring would be ideal, such a requirement has been deemed too burdensome to require. Additionally, risk

- based requi rements are impracticable for this general permit due to how complicated they would be.

Comment ID 0085.001.003 Issue Category: 2.1

Author Name: Zachary Griefen et al. Control Measures

- General

Organization: Conservation Law Foundation et al.

D. EPA Must Carry Out a BAT Analysis And Establish Technology

- Based Effluent Limits Based on the

Results.

Whether or not EPA adopts national effluent limitations and guidelines, industrial stormwater discharges must be subject to effluent limitations, ex pressed in NPDES permits, that require a reduction in pollution based on the degree of control achievable through use of the Best Available Technology Economically2015 EPA MSGP Response to Comments June 4, 2015

173 Achievable (BAT), including, where feasible, the complete elimination of pollutant discharge. [FN27] In the absence of national guidelines, EPA must set effluent limitations in the permit on the basis of its best professional judgment. [FN28] These BAT effluent limitations must be expressed clearly in the NPDES permit itself. [FN29] And the agency must consider the same statutory factors for developing BAT effluent limits in this single permit that it would apply in setting national effluent limitations and guidelines. [FN30]

In seeking out the best available technology that is economically achievable, EPA must consider the best state of the art practices in the industry and beyond. "Congress intended these [BAT] limitations to be based on the performance of the single bestperforming plant in an industrial field."[FN31] The average performer with in a category of dischargers, even a "well

- run" facility, is not representative of BAT. "[R]ather than establishing the range of levels in reference to the average of the best performers in an industrial category, the range should, at a minimum, be established with reference to the best performer in any industrial category."[FN32]

A technology is considered "available" where there is, has been, or could feasibly be use within an industry. Courts have explained that even where "no plant in a given industry has adopted a pollution control device which could be installed does not mean that the device is not ‘available,'" thus ensuring that industry cannot game the system by all agreeing to not adopt the latest, best pollution control technology. [FN33] A discharger of pollutants may also be required to transfer a particular technology that has been used in another context where the transfer is practicable.

Likewise, a technology is "economically achievable" under the BAT standard if it is affordable for the

best- run facility within an industry. [FN34] "BAT should represent a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges."[FN35] "[T]he reasonableness of what is ‘economically achievable' should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology

- without regard to cost."[FN36]

There are three major steps that EPA must take to develop technology based effluent limits in the MSGP. The first step is to identify candidate (potential) BAT technologies. [FN37] The second step is to consider statutory and regulatory mandated factors in order to evaluate the technologica l feasibility and economic achievability of the candidate technologies. [FN38], [FN39] The third step is to derive effluent limits that represent that degree of reduction

- expressed in terms of amounts

- achievable through the application of

the BAT techn ology(ies). [FN40] The limits must be expressed numerically, unless numeric limitations are infeasible, in which case they may be expressed narratively. [FN41]

EPA has not engaged in the required analysis to establish TBELs. Nowhere in the Draft Permit or the Fact Sheet does EPA identify candidate technologies, explain its consideration of the required factors, or derive numeric or narrative limits. Instead, EPA clearly attempts to push this duty down onto permittees.

EPA states in the Fact Sheet that:

To determine technological availability and economic achievability, operators need to consider what control measures are considered "best" for their industry, and then select and design control measures for their site that are viable in terms of cost and technology. Fact Sheet at 19.

This attempt to push the responsibility for BAT analysis down onto permittees is blatantly illegal. It is also logically impossible. How is a permittee expected to meet the rigorous BAT analysis standard set by Congress - to review candidate technologies, to identify the level of performance achieved by the very best of their peers?2015 EPA MSGP Response to Comments June 4, 2015

174 Technology based effluent limitations must be established by the permitting authority, not the permittee, and must be contained in the NPDES permit issued to the permittee. [FN42] Once EPA establishes a clear BAT effluent limit, the agency may leave the selection of control measures to achieve the limit up to the permittee. But the duty to consider what control measures are "best" for the industry rests squarely with

EPA.

As a practical matter, to allow for the development of BAT effluent limits, Commenters suggest that EPA consider replacing the multi

- sector general permit with sector

- specific general permits.

At the very least, however, Commenters suggest that EPA break the very large class/category of "discharges of stormwater associated with industrial activities" into smaller groups within the MSGP and begin setting BAT effluent limits in this manner. This could take the form of sector

- specific classes or categories of industrial discharges, for example, the industrial sectors identified in the MSGP. EPA might also consider identifying separate and somewhat overlapping classes of discharge defined by structure or function, for example: "discharges of industrial stormwater from galvanized metal roofs and other galvanized surfaces, including HVAC systems," "discharges of industrial stormwater from paved surfaces sealed with coal tar," or "discharges of industrial stormwater from areas associated with vehicle

maintenance." EP A has singled out and studied pollution concerns related to many such structural/functional categories of industrial stormwater in guidance documents over the years.

E. EPA Should Clarify That Permittees Must Minimize Pollutant Discharges.

EPA should modify the first sentence in section 2.1 of the proposed MSGP by adding the following underlined wording:

You must select, design, install, and implement control measures (including best management practices) to minimize pollutant discharges, address the selection and design considerations in Part 2.1.1, meet the

non- numeric effluent limits in Part 2.1.2, meet limits contained in applicable effluent limitations guidelines in Part 2.1.3, and meet the water quality

- based effluent limitations in Part 2.2.

T his change is consistent with language appearing further in the same section, requiring modification of control measures if they are not achieving their "intended effect of minimizing pollutant discharges." The change is necessary to clarify that the initial selection of control measures should be calculated to minimize pollutant discharges.

[FN27] See 33 U.S.C. §§ 1311(b)(2)(A) ("such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds . . . that such elimination is technologically and economically achievable for category or class of point sources"). Since the record shows that nearly all industrial stormwater discharges contain at least some toxic or non

- conventional pollutants, and since the

BAT standard is more stringent than the BCT standard, this discussion is framed exclusively in terms of

BAT.

[FN28] See 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3.

[FN29] See Fact Sheet at p. 20 ("Both technology

- based and water quality

- based effluent li mitations are implemented through NPDES permits."); see also Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 502 (2d Cir. 2002), Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (TBELs must be included in a NPDES permit).

[FN30] See Natural Res. Def. Council, 863 F.2d at 1425; Texas Oil & Gas Ass'n v. EPA, 161 F.3d 923,

928- 29 (5th Cir. 1998); see also 40 C.F.R. §§ 125.3(c) -(d).2015 EPA MSGP Response to Comments June 4, 2015

175 [FN31] Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 226 (5th Cir. 1989).

[FN32] American Paper Institute, 543 F. 2d at 346 (emphasis added). See also American Meat Institute v. EPA, 526 F.2d 442, 462

- 463 (7th Cir. 1975); American Frozen Food Institute, 539 F.2d at 120 -21.

[FN33] Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 636 (2d Cir. 1976).

[FN34] See, e.g., Reynolds Metals Co. v. EPA, 760 F.2d 549, 562 (4th Cir. 1985); Tanner's Council of Am. v. Train, 540 F.2d 1188, 1191

- 92 (4th Cir. 1976).

[FN35] Natural Res. Def. Council v. EPA, 863 F.2d 1420, 1426 (9th Cir. 1988) (quotations omitted); see also EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 74

- 75 (1980) (if a discharger of pollutants can afford the best available technology, then it must meet, and should not be allowed a variance from, stringent BAT limits).

[FN36] American Frozen Food , 539 F.2d at 120 -21.

[FN37] Best Conventional Pollutant Control Technology; Effluent Limitations Guidelines, 51 Fed. Reg. 24974, 24976 (July 9, 1986).

[FN38] 33 U.S.C. § 1311(b)(2)(E).

[FN39] 33 U.S.C. § 1311(b)(2)(B).

[FN40] See 40 C.F.R. § 122.4 4(k)(3).

[FN41] 40 C.F.R. § 122.44(k)(3).

[FN42] See 33 U.S.C. §§ 1311, 1342 (requiring, respectively, the development of BAT limits and their inclusion in NPDES permits, and requiring that NPDES permits be issued by EPA or state permitting

authorities in accordance with the requirements of Section 301), see also 40 C.F.R. §§ 122.44(a)(1) (NPDES permits "shall include . . . technology

- based effluent limitations and standards" ); 125.1 (technology based treatment requirements are imposed "in permits" und er Section 301 of the Act); and 125.3 ("Permits shall contain" technology based limits).

Response EPA employs a variety of resources to help it develop BPJ effluent limits for the MSGP. There are sector

specific effluent limits that cite industry -supplie d information on standard controls used. The Agency also has used subsequent surveys of pollution prevention practices that industry guidance enumerates (see the separate industry

- specific Fact Sheets), as well as its own inspectors and compliance experts to determine BPJ permit limits. Thus, EPA is not allowing individual permittees to use their own BPJ in setting the effluent limits. See also the response to Comment ID 0021.001.002 regarding the BPJ TBELs developed by EPA..

Regarding the commenter’s suggestion that “EPA break the very large class/category of "discharges of stormwater associated with industrial activities" into smaller groups within the MSGP and begin setting BAT effluent limits in this manner,” EPA points out that the structure of the permit essentially does this. Part 8 of the permit includes the sector

- specific effluent limits that apply to certain sectors above and beyond the general effluent limits in Part 2. Further categorization of discharges is not practical at this time given the complexity of the permit in its current form.2015 EPA MSGP Response to Comments June 4, 2015

176 EPA declines to add the suggested language to Part 2.1 because the requirement to minimize pollutant discharges is already included in each of the Part 2.1 effluent limits.

Comment ID 0085.001.034 Issue Category: 2.1

Author Name: Zachary Griefen et al. Control Measures

- General

Organization: Conservation Law Foundation et al.

3. Carry out a Best Available Technology analysis and establish technology

- based effluent limits based on the results or that analysis

Response EPA employs such analysis (see response to comment 0085.001.003).

Comment ID 0085.001.037 Issue Category: 2. 1

Author Name: Zachary Griefen et al. Control Measures

- General

Organization: Conservation Law Foundation et al.

6. Modify the first sentence in section 2.1 of the proposed MSGP as follows to clarify that the initial selection of control measures should be calculated to minimize pollutant discharges:

a. "You must select, design, install, and implement control measu res (including best management practices) to minimize pollutant discharges, address the selection and design considerations in Part 2.1.1,

meet the non

- numeric effluent limits in Part 2.1.2, meet limits contained in applicable effluent limitations guidelin es in Part 2.1.3, and meet the water quality

- based effluent limitations in Part 2.2."

Response See response comment 0085.001.003.

Comment ID 0085.001.063 Issue Category: 2.1

Author Name: Zachary Griefen et al. Control Measures

- General

Organization: Conservation Law Foundation et al.

35. Require permittees to use the results of their pollutant characterization efforts in their SWPPP to analyze the likelihood that any infiltrated stormwater is contaminated with soluble pollutants, EPA should

establish clear numeric thresholds for such d issolved pollutants, and should require as a non -numeric technology based effluent limitation that permittees not use infiltration as a control measure for discharges whose concentration of dissolved pollutants exceeds or is likely to exceed the thresholds ;

Response EPA includes warnings regarding ground water and infiltration wells (see the Fact Sheet). EPA has seen no evidence that more rigorous requirements are needed.

Comment ID 0087.001.003 Issue Category: 2.1

Author Name: Kathleen Martin Contr ol Measures

- General

Organization: Alcoa Inc.

Section 2.1.1 Control Measure Selection and Design Considerations2015 EPA MSGP Response to Comments June 4, 2015

177 • The language in this section is vague and is better suited to guidance than inclusion in the MSGP. For example, indicating that the listed control measures and design considerations be "considered" raises questions about what is meant by consider. Terms like this are is subjective and open to interpretation from the agency, inspectors, and the public. In addition, the specific measures that are listed for consideration are also more appropriate to guidance than to inclusion in the permit. The statement th at attenuating flow by use of vegetative swales to reduce in

- stream impacts of erosive flows is a guidance statement. In addition, stating that repairs of riparian buffers will help protect streams is a guidance

document statement.

Section 2.1.2 Non -Nume ric Technology

- Based Effluent Limits (BPT/BAT/BCT)

• The language in this section is vague and is better suited to guidance than inclusion in the MSGP. For example, language indicating that facilities must "minimize the exposure of manufacturing, process ing and material storage areas" is vague, subjective and open to interpretation. In addition, the use of grading, berming or curbing to prevent runoff may not always be necessary but the inclusion of this language in the MSGP leads to increased interpretation and is not conducive to the facility managing a SWPPP. In addition, the inclusion of language in the draft MSGP indicating that out -of- service equipment should be drained could result in problems for facilities that are retaining equipment for future u se, since in some cases draining equipment could damage it (e.g., transformers held for future use may be damaged if drained of oil). This language is more appropriate for inclusion in guidance, not in the MSGP.

Response EPA disagrees that the language in Part 2.1.1 and 2.1.2 is better suited to guidance. “Consider” means, according to the Random House Dictionary of the English Language, “to think carefully about, esp. in order to make a decision.” EPA includes such considerations to provide permittees w ith clear options regarding how to meet the effluent limits in the permit. EPA has no evidence of spurious enforcement cases occurring based on a permittee having otherwise legitimately “considered” such options. While some information may be appropriate f or inclusion in the Fact Sheet, EPA includes more salient items in the permit so they are not overlooked by permittees. EPA maintains that all of the requirements in Part 2.1.1 are related to minimizing discharges of pollutants in stormwater.

Comment ID 0092.001.002 Issue Category: 2.1

Author Name: Jeffrey Longsworth Control Measures

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

In comments on Part 2, FSWA raises EPA's Construction & Development ELGs proposed definition of "infeasible" and offers suggestions for relating that proposed definition to EPA's attempt to define "minimize" in the draft MSGP. The concepts are closely related and FSWA's comments offer more programmatic- wide co nsistency.

More fundamentally, FSWA provides extensive comments on EPA's proposed technology

- based effluent limitations and asserts that all such limitations must be directly related to the "discharge of pollutants associated with industrial activity thr ough a point source to a water of the U.S." EPA does not have authority to mandate internal/on

- site operations that are not directly linked to pollutant discharges and EPA has no authority to limit the amount or velocity of stormwater (on

- site or being dis charged) absent pollutants.

Response2015 EPA MSGP Response to Comments June 4, 2015

178 EPA generally agrees with the commenter and maintains that all of the MSGP’s TBELs are related to the “discharge of pollutants associated with industrial activity through a point source to a water of the U.S.”

Comm ent ID 0092.001.015 Issue Category: 2.1

Author Name: Jeffrey Longsworth Control Measures

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 2

- Control Measures and Effluent Limits

In Section 2, EPA attempts to define the term "minimize" and essentially uses a similar definition to one it proposed for the term "infeasible" in its recently proposed revisions to the Construction & Development ELGs.). See 78 Fed. Reg. 19,434 (April 1, 2013). In response to that proposal, FSWA commented:

Infeasibility Definition: While FSWA remains concerned about the overall lack of clarity in EPA's stormwater permitting program and its reliance on terms such as "minimize," "feasible," "practicable,"

e tc., EPA's proposed definition is at least some recognition that more precision and clarity are better than unfettered subjective interpretation. In this case, FSWA supports EPA's efforts to ensure that a permittee can reasonably assess whether a given BMP is technologically possible to implement, and if so, whether it makes reasonable economic sense in light of comparable industry practices to do so.

Obviously, the permittee must reasonably apply its knowledge of the site and industry practices to

initia lly conclude whether something is "feasible" or not. Permitting authorities, then, must understand the permittees reasoning before either commenting on or challenging any "feasibility" determinations. In any event, site

- specific factors must be considered in such determinations and EPA should avoid making broad or universally

- applicable feasibility pronouncement. Nevertheless, FSWA believes it is appropriate for EPA to tie the concept of "feasibility" specifically to industry economic practicability (afford ability) within the concept of a technology

- based effluent limitation.

EPA should clarify in the MSGP that its use of the term "minimize" is limited by the feasibility of "minimizing," whether EPA uses the language "minimize unless infeasible" or quantifies the use of the term "minimize" up front. EPA also should include the proposed definition of "infeasible" from the C&D ELG revision proposal ("Infeasible means not technologically possible, or not economically practicable and achievable in light of best industry practices."). Finally, EPA's authority to require "minimizing" must be directly related to the discharge of pollutants in industrial stormwater from a point source to a water of the U.S. Absent that direct causal link, EPA cannot mandate on -site operational changes or restrictions, as discussed more fully in the following comments.

Response EPA acknowledges the commenter’s support for the definition of “infeasible” in the MSGP. EPA does not agree with the commenter’s suggestion that “EPA should clarify in the MSGP that its use of the term ‘minimize’ is limited by the feasibility of ‘minimizing,’ whether EPA uses the language ‘minimize unless infeasible’ or quantifies the use of the term ‘minimize’ up front.” Including the term “unless infeasible ” in the definition of minimize would be redundant, since minimize essentially means “to the extent feasible.” All of the comment points are addressed in the 2015 MSGP.

Regarding the comment about EPA’s authority for requiring “minimizing”, see response to comment

0092.001.002.

Comment ID 0092.001.016 Issue Category: 2.12015 EPA MSGP Response to Comments June 4, 2015

179 Author Name: Jeffrey Longsworth Control Measures

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 2.1 (Control Measures): Section 2.1.1 (a bulleted list of control measure considerations) is more applicable to "guidance" than actual permit language. It should be moved to the Fact Sheet and clearly identified as guidance. EPA cannot independently regulate impervious surface or the flow of stormwater

on- site; it can regulate only the discharge of pollutants through a point source to a water of the U.S. In addition, the Fact Sheet must be revised to indicate that all of the discussion in VI.B.1 is guidance. EPA cannot regulate stormwater flow absent pollutants (see Virginia Department of Transportation et al. v. EPA (1:12 -CV- 775, E.D. Va. Jan. 1, 2013)), but many of the practices set forth may be helpful in terms of guidance for site operators.

Th e same comment applies to Section 2.1.2.1. These "minimization" mandates are actually practical guidance to control pollutant discharges, but EPA cannot independently mandate these on

- site practices. Whether pollutants have been "minimized" is a subjective assessment that can be determined through on

site inspections and visual (and analytical, if appropriate) discharge monitoring practices.

Response See response to comment 0087.001.003 and 0092.001.002. EPA maintains that the requirements in the

MSGP al l relate to minimizing the discharge of pollutants in industrial stormwater.

Comment ID 0092.001.025 Issue Category: 2.1

Author Name: Jeffrey Longsworth Control Measures

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm

Water Association (FSWA)

In sum, Section 2.1 contains some proposed mandates that exceed EPA's statutory authority and some others that are best moved to the Fact Sheet and identified as guidance. This will clarify and simplify that

section.

Response See responses above.

Comment ID 0094.001.008 Issue Category: 2.1

Author Name: Eric Fry Control Measures

- General

Organization: Peabody Energy

5) 2.1 Control Measures. The introduction of asterisks for some measures but not others in this draft MSGP is confusing. Additionally, any reference or suggestion to the "cut -and- paste" of information is redundant. EPA should explain why this approach is n ecessary.

Response The Fact Sheet provides a full explanation regarding the asterisks. This is a time

- saving option for permittees, not required or necessary, but meant to reduce permittee burden. See also response to

comment 0070.001.011.2015 EPA MSGP Response to Comments June 4, 2015

180 

### Issue Category: Section 2.1.2.1 - Minimize Exposure

Comment ID 0047.001.002 Issue Category: 2.1.2.1

Author Name: John Myers Minimize Exposure

Organization: Tennessee Valley Authority (TVA)

Section 2.1.2.1 Minimize Exposure

- bullet seven states "Drain fluids from equipment and vehicles that will be decommissioned or will remain unused for extended periods of time;* and". TVA believes that this is not practical, especially for large pieces of equipment (e.g. cranes) which may sit idle for several weeks or months between uses. The requirement to drain and subsequently refill the vehicle reservoirs would introduce more risk of spillage or exposure than parking the vehicle and maintaining a routi ne inspection program. TVA suggests incorporating language that would allow the permittee to conduct inspections for all oil

- containing equipment exposed to stormwater in lieu of draining.

Response EPA has revised the effluent limit in response to this comment. Part 2.1.2.1 in the final 2015 MSGP only requires draining for decommissioned equipment/vehicles; otherwise, monthly inspections are all that is required for equipment/vehicles that will remain unused for extended periods of time.

Comment ID 0064 .001.002 Issue Category: 2.1.2.1

Author Name: Katie Kistler Minimize Exposure

Organization: AK Steel Corporation

Minimize Exposure

The draft permit requires minimized exposure of manufacturing, processing and material storage areas. Within the Primary Metals sector, this practice is not feasible for a number of material storage yards and processing areas. EPA's storm water Fact Sheet for the Primary Metals sector (included with the 2008 MSGP permit information on EPA's website) acknowledges this point:

"Due to the large size of many primary metals facilities, source controls may not be practical. In some cases, it may not be feasible to cover or otherwise protect large areas of material storage or exposed plant yards. Deposition of particulates from furnace or other process emission may be relatively diffuse over a large area of the facility and very difficult to control. In these cases management practices such as settling basins, retention or detention ponds, or recycle ponds can provide effective treatment of runoff. "

AK Steel requests that statement be included in the 2013 MSGP and / or in the Fact Sheet for the 2013

MSGP.

Re sponse EPA emphasizes that the requirement is to minimize pollutants, and “minimize” means controls only have to be “achievable in light of best industry practices.” For metals facilities, permittees may decide source controls are outside of best industry practices.

Comment ID 0066.001.009 Issue Category: 2.1.2.1

Author Name: Timothy Carlstedt Minimize Exposure

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)2015 EPA MSGP Response to Comments June 4, 2015

181 Part 2.1.2.1 Minimize Exposure

The seventh bullet of this section states: "Drain fluids from equipment and vehicles that will be decommissioned or will remain unused for extended periods of time." We suggest that this requirement is not practical, especially for large pieces of equipmen t (e.g., cranes) which may sit idle for several weeks or months between uses. The requirement to drain and subsequently refill the vehicle reservoirs would introduce more risk of spillage or exposure than parking the vehicle and maintaining a routine inspe ction program. UWAG suggests EPA incorporate language that would allow the permittee to conduct routine inspections for all oil

- containing equipment exposed to stormwater in lieu of draining.

Response See response to comment 0047.001.002.

Comment ID 0072.001.003 Issue Category: 2.1.2.1

Author Name: Leah Pilconis Minimize Exposure

Organization: The Associated General Contractors of America (AGC of America)

Limitations on Washwaters

To help construction companies implement and maintain effective pollution prevention measures to minimize equipment tracking of materials both at their construction sites and at their related industrial facilities, it is important for EPA's MSGP and CGP to be consistent and practical in how they address

construction e quipment washwater. AGC members are concerned that provisions in the 2013 draft MSGP would inhibit contractors from using wash stations to remove sediment from equipment before it leaves any site covered by the MSGP; however, this practice is often necessary as a practical means of meeting the requirements of EPA's CGP.

Specifically, the 2013 draft MSGP, Part 2.1.2.1, clearly states that "the discharge of vehicle and equipment washwater is not authorized by the permit." The 2013 draft MSGP also prohibits the discharge of washwaters that have "come into contact with oil and grease deposits ... unless the deposits have been cleaned up using dry clean

- up methods." This language would seem to prevent contractors from using wash stations to remove sediment from vehicles before they leave any site covered by the MSGP -unless they design completely self

- contained water recycling systems to collect, store, treat and redeliver (or retain) the water, in each instance. AGC members report that this type of system is often impractical and

cost- prohibitive out in the field (i.e., at materials source sites and batching locations that are not eligible for coverage under a CGP) and inconsistent with the pollution prevention standards set forth under EPA's current CGP, as further explained below.

In addition, a prohibition against the discharge of vehicle and equipment washwater

- without exception or qualification

- would be counterproductive to meeting other sections of the 2013 draft MSGP. For example, the 2013 draft MSGP, Part 2 .1.2.10 - Dust Generation and Vehicle Tracking of Industrial Materials, states: "You must minimize generation of dust and off

- site tracking of raw, final, or waste materials." Another section of the 2013 draft MSGP, Part 3.1

- Routine Facility Inspections, states: "During the inspection you must examine or look out for ... offsite tracking of industrial or waste materials, or sediment where vehicles enter or exit the site" (emphasis added). To meet above -referenced requirements, the draft MSGP Fact Sheet (pag e 34) cites the following measures as effective ways to reduce vehicle tracking of materials: "setting up a wash site or separate pad to clean vehicles prior to their leaving the site."2015 EPA MSGP Response to Comments June 4, 2015

182 AGC also is concerned with the 2013 draft MSGP, Part 2.1.2.1

- Minim ize Exposure, which would require permittees to perform all vehicle and/or equipment cleaning operations indoors, under cover or in bermed areas that prevent runoff and run

- on and also that capture any overspray. AGC members report that this type of system is impractical and cost

- prohibitive out in the field (i.e., at materials source sites and batching locations that are not eligible for coverage under a CGP and at industrial sites undergoing construction) and inconsistent with the pollution prevention sta ndards set forth under EPA's current CGP, as further explained below.

As noted above, the 2013 draft MSGP's prohibition against "the discharge of vehicle and equipment washwater" is inconsistent with EPA's CGP, Part 1.3, which explicitly allows the discharge of "water used to wash vehicles and equipment" (absent soaps, solvents or detergents) provided applicable pollution prevention requirements are met. When vehicle washing, wheel washing and other types of washing activities occur on any jobsite or at any construction support activity area covered by the CGP, the permit requires the site operator to "provide an effective means of minimizing the discharge of pollutants." EPA has provided industry with examples of what constitutes an "effective means of mi nimizing the discharge" in its CGP and CGP Fact Sheet. Such examples include "locating activities away from surface waters and stormwater inlets or conveyances and directing wash waters to a sediment basin or sediment trap, using filtration devices, such as filter bags or sand filters, or using other similarly effective controls." [FN5]

The construction industry has become familiar with and accustomed to following the above referenced pollution prevention requirements

- specific to the washing of equipment and vehicles

- as a necessary means to complying with the CGP and new federal regulations, the Construction and Development Effluent Limitations Guidelines (C&D ELG); [FN6] the latter being directly applicable nationwide. EPA's CGP requires site operators "t o minimize track

- out of sediment onto streets and other paved areas from vehicles exiting the construction site." To meet this requirement, EPA's CGP and CGP Fact Sheet direct contractors, as necessary, to "use additional controls (e.g., wheel washing...) to remove sediment from vehicle tires prior to exit." [FN7] Again, EPA notes that these requirements are intended to implement the C&D ELG requirement to "minimize sediment discharges from the site," and NPDES

- authorized states are following EPA's lead in incorporating the C&D ELG provisions into their own state general permits.

In summary, not only does EPA's CGP tell the regulated community how to handle vehicle and equipment washwater, it goes so far as to provide specific EPA

- recommended examples. If th ese practices are followed on an MSGP permitted site, they would result in a violation. This conflict will be particularly confusing to facilities associated with cement or concrete manufacturing, asphalt paving, minerals mining or landfill operations that routinely support construction activities and are often owned/operated by construction companies. Similar, AGC members are concerned about how to handle equipment washwater when engaged in construction under the CGP on sites covered by the MSGP.

[FN 5] See CGP Part 2.3.3.2 and CGP Fact Sheet page 84.

[FN6] See 40 CFR Part 450.

[FN7] See CGP Part 2.1.2.3 and CGP Fact Sheet pages 14 and 66.

Response See response to comment 0072.001.001.

Comment ID 0083.001.005 Issue Category: 2.1.2.12015 EPA MSGP Response to Comments June 4, 2015

183 Author Name: David Wagger Minimize Exposure

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Minimize Exposure Is Not Internally Consistent and Should Be Conditioned on Feasibility.

The introductory text of proposed §2.1.2.1 requires "[minimizing] the exposure of manufacturing, processing, and material storage areas (including loading and unloading, storage, disposal, cleaning, maintenance, and fueling operations) to rain, snow, snowm elt, and runoff by either locating these industrial materials and activities inside or protecting them with storm resistant coverings". Here, ‘minimizing' is tied to ‘locating indoors' and ‘covering'. However, the ensuing requirements for "minimizing expos ure" include activities that are expressly not performed, or required to be performed, indoors or under cover. Furthermore, some of the required activities are conditioned on ‘feasibility' (i.e., required "unless infeasible"). The introductory text needs t o be revised to comport with the list of activities, especially concerning infeasibility and allowable outdoor activities. Making such revisions would also help to clarify what constitutes compliance with "Minimize Exposure".

Response The introductory text to Part 2.1.2.1, as in the 2008 MSGP, requires that exposure be minimized “by either locating these industrial materials and activities inside or protecting them with storm resistant coverings.” However, EPA has revised the following sentence in Part 2.1.2.1 to state “Unless infeasible, you must also...” followed by a bulleted list of additional activities that permittees must perform (unless infeasible) in order to meet the minimize exposure effluent limit. These revisions help to clarify what

constitut es compliance with the effluent limit, and thus address the commenter’s concern.2015 EPA MSGP Response to Comments June 4, 2015

184 

### Issue Category: Section 2.1.2.2 - Good Housekeeping

Comment ID 0047.001.003 Issue Category: 2.1.2.2

Author Name: John Myers Good Housekeeping

Organization: Tennessee Valley Authority (TVA)

Section 2.1.2.2 Good Housekeeping

- bullet four states "Keep all dumpsters under cover or fit with a lid that must remain closed when not in use;* and". TVA believes this requirement to be impractical and unfeasible in some cases. In addition, the referenc es to "dumpster" "remain closed" and "when not in use" are not defined and, therefore are subject to interpretation; for example, does this include roll

- off boxes? TVA believes that the intent of this bullet is already adequately captured in the requirement to "Store materials in appropriate containers." TVA suggests that the new bullet be removed.

Response EPA has revised the language in this section of Part 2.1.2.2 in the final 2015 MSGP. The language now

states: “ Keep all dumpster lids closed when not in use. For dumpsters and roll off boxes that do not have lids and could leak, ensure that discharges have a control (e.g., secondary containment, treatment). ” The revised limits provide greater flexibility for meeting the effluent limit for dumpsters tha t do not have lids. EPA disagrees, however, that references to "dumpster", "remain closed", and "when not in use" need further definition. Permittees should use commonsense in determining when actions are necessary to meet this effluent limit. If the dumpsters were in no way going to add pollutants to a stormwater discharge (e.g., if they were in a secondary containment area with zero discharge potential), the permittee would document in the SWPPP that was the case and that neither a control nor compliance with the effluent limit

would be done for the non

- source dumpsters.

Comment ID 0064.001.003 Issue Category: 2.1.2.2

Author Name: Katie Kistler Good Housekeeping

Organization: AK Steel Corporation

Housekeeping - Dumpster Management

Under the housekeeping portion of Section 2, the draft MSGP contains the following statement: "Keep all dumpsters under cover or fit with a lid that must remain closed when not in use." The term "dumpster" is not defined in the permit or fact sheet. At iro n and steel facilities, a variety of roll

- off boxes and bins are used to store or contain scrap metal, lumber, plant trash or residual materials from facility operations. The draft permit requirement appears to apply to all sorts of these containers, regardless of whether they contain any pollutionable material or regardless of where they are located. The requirement also fails to acknowledge that if the container is in good condition storm water that falls on/into it may not be discharged. For example, a scrap lumber roll

- off generally would pose no storm water quality threat and neither would an uncovered wastewater treatment sludge roll

- off box staged in area that drains back to the wastewater treatment system. Additionally, at a large industrial facility , covering all dumpsters is likely not feasible. AK Steel suggests a more general requirement with regard to dumpsters that allows for flexibility:

Manage dumpsters and roll

- off boxes containing potential pollution sources such that the potential for

rel eases of those pollutants to storm water discharge from the facility is minimized.

Response See response to Comment ID 0047.001.003. Additionally, EPA notes that “dumpster” is used as a generic2015 EPA MSGP Response to Comments June 4, 2015

185 term for large metal bin where refuse is kept until disposal. This term has been used since the 1990s in the stormwater program and is prominent in the No Exposure Guide from 2000.

Comment ID 0066.001.010 Issue Category: 2.1.2.2

Author Name: Timothy Carlstedt Good Housekeeping

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 2.1.2.2 Good Housekeeping

This section identifies specific good housekeeping measures not previously identified. Not all of the practices identified are applicable or necessary for all sites. For example, sweeping or vacuuming all areas considered exposed to industrial activity at a site may not be practicable or necessary. We recommend

EPA revise the second sentence to read:

"You must perform reasonably applicable good housekeeping measures, including but not limited to, the following:"

The fourth bullet of this section states: "Keep all dumpsters under cover or fit with a lid that must remain closed when not in use." We believe this requirement to be impractical and unfeasible in some cases. In addition, the references to "dumpster," "remain closed," and "when not in use" are not defined and, therefore, are subject to interpretation. For example, does this include rolloff boxes? We suggest that the intent of this bullet is already adequately captured in the requirement to "Store materials in appropriate containers." UWAG suggest s that EPA remove the new bullet.

Response Part 2.1.2.2 has been revised in the final 2015 MSGP to clarify the activities in the bullet list are relating to minimizing pollutant discharges. Thus, if a specific activity in Part 2.1.2.2 is not required in order to minimize pollutant discharges, then the activity does not have to be performed.

See also response to comments 0047.001.003 and 0064.001.003.

Comment ID 0070.001.007 Issue Category: 2.1.2.2

Author Name: Beth Goodnough Good Housekeeping

Organization: Western Fuels Association Inc.

Part 2.1.2.2, Good Housekeeping, requires sweeping or vacuuming at regular intervals. Some coal mines have conveyor belts that span creeks, and those belts could be construed as being subject to this regulation. Vacuuming or sweeping coal dust is prohibite d at some mines, as it could create static electricity, and possibly lead to an explosion. We would like language added to the first bullet that states "or washed down if the washdown water is captured and appropriately treated prior to discharge".

Resp onse See mining sectors comment response essay.

Comment ID 0073.001.013 Issue Category: 2.1.2.2

Author Name: Kelly Norton Good Housekeeping2015 EPA MSGP Response to Comments June 4, 2015

186 Organization: Arizona Mining Association (AMA)

Part 2.1.2.2: The 2008 MSGP provided examples of measures that permittees could use to keep clean all exposed areas, including sweeping at regular intervals and storing material in appropriate containers. In contrast, the draft MSGP mandates the implementation of certain housekeeping measures. The explanation provided by EPA for these revisions is not satisfactory and evidences a serious misunderstanding of the nature of the various industry sectors addressed under the MSGP. For instance, in the mining sector, stormwater outfalls are often associated with areas on the periphery of the mine that drain areas consisting of rock or dirt. Such areas are not conducive to the application of the mandatory housekeeping measures specified in the draft MSGP. Consequent ly, this section should be revised to return to the language used in the 2008 MSGP or it should be revised to clarify that the identified housekeeping measures should be implemented only "if feasible and practicable."

Further, the newly identified housekeeping measure to "identify and control all on

- site sources of dust to minimize stormwater contamination from the deposition of dust on areas exposed to precipitation" should be removed from the draft MSGP. The requirement to minimize dust is already addre ssed in Part 2.1.2.10. Additionally, mines already are subject to strict dust control requirements under state or county air quality permit. The newly identified housekeeping measure does not reflect the simple fact that the central activity involved at mining sites (accessing and removing ore) necessitates the generation of dust. This measure should be removed or clarified that it does not apply to mining operations, or at a minimum it should be made clear that compliance with air permit requirements for d ust control at mines constitutes compliance with the dust control requirements in the MSGP.

Response The suitability of any control in the permit is subject to the conditions of “minimize”. EPA agrees with the commenter that the proposed requirement to “identify and control all on

- site sources of dust to minimize stormwater contamination from the deposition of dust on areas exposed to precipitation" is already addressed in Part 2.1.2.10, and has therefore removed the requirement in the final 2015 MSGP.

S ee also the mining sectors comment response essay.

Comment ID 0086.001.012 Issue Category: 2.1.2.2

Author Name: Daniel Graham Good Housekeeping

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Part 2.1.2.2: The Good Housekeeping provision requires facilities to "[s]weep or vacuum at regular intervals." Some coal mines have conveyor belts that span creeks, and those creeks could be construed as being subject to this requirement. Vacuuming or swee ping coal dust, however, is prohibited at some mines, as it could create static electricity and possibly result in an explosion. EPA should revise the first bullet to include the phrase "or washed down if the washdown water is collected and properly treate d prior to discharge."

Response See the mining sectors comment response essay.

Comment ID 0087.001.004 Issue Category: 2.1.2.2

Author Name: Kathleen Martin Good Housekeeping

Organization: Alcoa Inc.2015 EPA MSGP Response to Comments June 4, 2015

187 Section 2.1.2.2 Good Housekeeping

• The language in this section is vague and better suited to guidance than inclusion in the MSGP. The housekeeping requirements for an individual permit should be determined by the facility and its activity. The draft language indicates that facilities mus t identify and control all on

- site sources of dust. It is not feasible or practical for a facility to control all dust. Sweeping or vacuuming requirements cannot be practicably designed to control "all" dust. This requirement is vague and leaves far too much open to interpretation. To fully comply with this requirement, it could be interpreted that all roads must be paved, or large wind

- breaks will installed, at enormous cost. In addition, language requiring that all dumpsters be kept under cover or closed may be impractical to implement, and other management measures may be more appropriate.

Response See the mining sectors comment response essay and responses to comments 0073.001.013, 0047.001.003,

and 0064.001.003.

Comment ID 0092.001.017 Issue Categor y: 2.1.2.2

Author Name: Jeffrey Longsworth Good Housekeeping

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

The same comment applies to Sections 2.1.2.2 and 2.1.2.4. Good housekeeping (generally) and spill prevention/response are important parts of meeting non

- numeric effluent limits and EPA should provide appropriate guidance in these areas, but specific mandates are beyond EPA's authority unless directly tied to the discharge of a pollutant through a point source to a water of the U.S. Further, sites subject to EPA's SPCC mandates already address these issues and the MSGP should not muddle those mandates with

i mprecise, generalized language.

Response See response to comment 0092.001.016. SPCC requirements only apply to a small number of MSGP permittees so the MSGP does not reference specifics about SPCC. .However, to the extent there are any overlaps between the MSGP and SPCC for a facility, they can reference their compliance with the SPCC to satisfy the concomitant MSGP requirement, MSGP (see Parts 5.2 and 5.2.5.1).

Comment ID 0093.001.019 Issue Category: 2.1.2.2

Author Name: Amanda Aspatore Good Housekeeping

Organization: National Mining Association (NMA)

Part 2.1.2.2: The "Good Housekeeping" provision requires facilities to "[s]weep or vacuum at regular intervals." Some coal mines have conveyor belts that span creeks, and those creeks could be construed as being subject to this requirement. Vacuuming or sw eeping coal dust, however, is prohibited at some mines, as it could create static electricity and possibly result in an explosion. EPA should revise the first bullet to include the phrase "or washed down if the washdown water is collected and properly trea ted prior to discharge."

Response See the mining sectors comment response essay.2015 EPA MSGP Response to Comments June 4, 2015

188 Comment ID 0094.001.009 Issue Category: 2.1.2.2

Author Name: Eric Fry Good Housekeeping

Organization: Peabody Energy

6) 2.1.2.2 Good Housekeeping. The following new bullet introduced for this draft MSGP

- "Identify and

control all on

- site sources of dust to minimize stormwater contamination from the deposition of dust on areas exposed to precipitation"

- is ambiguous. Be cause the phrase "all on

- site sources of dust" is not

well

- defined, it opens the door for Clean Air Act

- types of controls. Therefore, the language in this bullet should be deleted. Further, requiring facilities to "[ s ]weep or vacuum at regular intervals" is improper and the language should be accordingly revised because such activity is not allowed at some mines due to the fact that it could create static electricity and potentially cause an explosion. With regard to the bullet about dumpsters, Peabody th inks it reasonable that dumpsters should simply not be kept within areas that are covered under the MSGP. This type of practice would prevent the type of unnecessary requirement suggested here.

Response See the mining sectors comment response essay and responses to comments 0073.001.013, 0047.001.003,

and 0064.001.003.2015 EPA MSGP Response to Comments June 4, 2015

189 

### Issue Category: Section 2.1.2.3 - Maintenance

Comment ID 0021.001.003 Issue Category: 2.1.2.3

Author Name: Lee Epstein Maintenance

Organization: Chesapeake Bay Foundation

Part 2.1.2.3

- In an equally positive vein, "maintenance" has been elaborated, and now includes "replacing and repairing."

Response EPA appreciates the commenter’s support for the revisions in Part 2.1.2.3

Comment ID 0029.001.012 Issue Category: 2.1.2. 3

Author Name: Kim Cox Maintenance

Organization: City of Portland Environmental Services

Section 2.1.2.3 states catchbasins should be cleaned when 2/3 full of solids. This trigger contradicts the

33- 40% trigger used in other EPA published guidance for catchbasin maintenance (EPA 832 -F-99-011). Has guidance been updated?

Response The permit includes the catch basin cleaning requirement, which is the industry

- standard minimum recommendation, to prevent this vital maintenance task from being overlooked. EPA encourages permittees to clean catch basins prior to the debris depth reaching 2/3 (e.g., at 1/3) in order to avoid a BMP failure. EPA’s is aware that its BMP fact sheet recommend that catch basins be cleaned even earlier; i.e., when debris reaches 1/3 their depth. While that is EPA’s recommendation, the permit’s requirement is 2/3, consiste nt with industry

- standard catch basin minimum.

Comment ID 0047.001.004 Issue Category: 2.1.2.3

Author Name: John Myers Maintenance

Organization: Tennessee Valley Authority (TVA)

Section 2.1.2.3 Maintenance

- bullet four states "Cleaning catch basins when the depth of debris reaches

two- thirds (2/3) of the sump depth and keeping the debris surface at least six inches below the outlet pipe." In our opinion, this is overly prescripti ve in that catch basin designs vary and may not facilitate maintaining "at least six inches" in some instances. This requirement is also redundant to the first bullet in this section which states: "Performing inspections and preventive maintenance of stormwater drainage, source controls, treatment systems, and plant equipment and systems that could fail and result in contamination of stormwater." TVA suggests that the new bullet be revised or removed.

Response EPA disagrees that the catch basin maintena nce requirement is overly prescriptive; the requirement is based upon industry standards and is reasonably necessary to minimize the discharge of pollutants from point sources to the waters of the United States. EPA also disagrees that the catch basin main tenance requirement is redundant to the first bullet, which is a generic requirement that does not set a standard for catch basin maintenance. See also response to comment 0029.001.012.

Comment ID 0064.001.004 Issue Category: 2.1.2.32015 EPA MSGP Response to Comments June 4, 2015

190 Author Name: Katie Kistler Maintenance

Organization: AK Steel Corporation

Maintenance - Bag Houses Under the Maintenance portion of Section 2, the draft MSGP contains the following statement: "Inspecting and maintaining bag houses quarterly to prevent the escape of dust from the system and immediately removing any dust accumulation from the base of the exterior baghouse." Many baghouse installations are subject to inspection under air permitting and other regulatory environmental programs. AK Steel suggests that the permit contain a statement allowing inspections conducted under other regulatory programs to satisfy this requirement.

Maintenance - Catch Basin Cleaning Under the Maintenance portion of Section 2, the draft MSGP contains the following statement: "Cleaning catch basins when the depth of debris reaches 2/3 of the sump depth and keeping the d ebris surface at least six inches below the outlet pipe." Ensuring that all catch basins meet this requirement at all times at a large Primary Metals facility is not practical. AK Steel suggests that the requirement be removed from the permit.

Futhermore , the draft permit requirement does not consider whether or not cleaning of each catch basin would have an impact on storm water discharge quality. For example, the cleanliness of a catch basin tributary to a storm water lagoon, settling basin or a process water treatment and /or recycle system would likely have no impact on the quality of the water discharged from the facility.

Response Nothing precludes a permittee from using compliance with another requirement to satisfy MSGP requirements.

Regarding the comment on catch basin maintenance, see responses to comment 0029.001.012 and

0047.001.004 . EPA also notes that the requirement to clean catch basins applies “in order to minimize pollutant discharges.” Thus, if there is no potential to adversely impa ct water quality (e.g., because the catch basin is a tributary to a waste treatment system), the requirement does not apply.

Comment ID 0066.001.011 Issue Category: 2.1.2.3

Author Name: Timothy Carlstedt Maintenance

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 2.1.2.3 Maintenance

The third bullet of this section requires quarterly inspection of baghouses to prevent stormwater exposure. Stormwater related inspections of baghouses should be limited to areas that could be exposed to

stormwater. We recommend EPA revise the third bullet to read:

"Inspecting and maintaining areas of baghouses exposed to stormwater quarterly to prevent the escape of dust from the system and immediately removing any accumulated dust at the base of the exterior bag

house."

The fourth bullet of this section requires cleaning of all "catch basins" when they are two

- thirds full and2015 EPA MSGP Response to Comments June 4, 2015

191 requires that debris be kept at least six inches below the outlet pipe. These specifications may not be appropriate for all stormwater BMPs that meet the definition of "catch basi n." Moreover, the requirement appears redundant to that of the first bullet which requires "inspections and preventive maintenance of stormwater drainage, source controls, treatment systems, and plant equipment and systems that could fail

and result in con tamination of stormwater." UWAG requests flexibility to maintain these BMPs (and all BMPs) as appropriate for the specific design of each BMP; EPA should remove or revise the new requirement.

Response EPA disagrees with the suggested revision to the bag house inspection requirement. The effluent applies as necessary “in order to minimize pollutant discharges” and therefore, it is not necessary to inspect baghouse where there is no potential stormwater contamination from a rupture.

Regarding comments on the catch basin maintenance requirement, see response to comment
0047.001.004 and 0029.001.012.

Comment ID 0083.001.006 Issue Category: 2.1.2.3

Author Name: David Wagger Maintenance

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Immediately Taking All Reasonable Steps Upon Discovery of Control Measures Needing Repair or Replacement Is Problematic from a Practical Perspective and Should Be Relaxed.

Proposed §2.1.2.3 ("Maintenance") includes the general requirement that "[i]f [the permittee] find[s] that [its] control measures need to be replaced or repaired, [the permittee] must immediately take all reasonable steps to prevent or minimize the discharge of pollutants until a permanent solution is installed and made operational, including cleaning up any contaminated surfaces so that the material will not discharge during subsequent storm events." This requirement and compliance with it are unclear. Who determines what are "all reasonable steps" and when (e.g., is determination retrospective)? What if it is not possible to complete "all reasonable steps" on the same day? While these questions may seem solely theoretical, they are extremely important prac tically in consideration of both proposed §1.5 ("Permit Compliance") and the fact that such proposed immediacy would replace "as expeditiously as practicable" (2008 MSGP, §2.1.2.3). This proposed requirement should be either clarified or revised to allow a little more flexibility to avoid unnecessary determinations of violation for, as an example, taking two or three days (instead of one) for taking all reasonable steps in the absence of a subsequent storm event.

This issue and suggested changes also apply to proposed §4.2.1 ("Immediate Actions").

Response EPA has provided clarity in the permit regarding what “all reasonable steps” could entail. The permit also provides flexibility to allow maintenance actions to be initiated no later than the following work day if it is too late to take action on the day the maintenance issue was identified. Similar changes were made to

Part 4.

Comment ID 0087.001.005 Issue Category: 2.1.2.3

Author Name: Kathleen Martin Maintenance

Organization: Alcoa Inc.

Section 2.1.2.3 Maintenance2015 EPA MSGP Response to Comments June 4, 2015

192 • The language in this section requiring inspections of "plant equipment and systems that could fail" is too vague. This requirement should be limited to performing inspections of "high risk areas identified in the

SWPPP."

• The language in this section regarding baghouse inspection and maintenance is too narrow and prescriptive, requiring quarterly inspections of baghouses. Management of dust from baghouses should be addressed through BMPs and the SWPPP, and the requirement changed to state the SWPPP include a BMP for baghouses to address potential dust generation from normal operation.

• In addition, we have concerns about the explanation of the term "immediately" in the context of how quickly corrective actions must be taken. This could be interpreted to require that inspections be preplanned to occur only at times when sufficient manpower is available to implement corrective actions. The term immediately should be changed to mean that the work be completed before the next storm event or within 14 days if more time is needed, or pursuant to a schedule outlined in the SWPPP.

Response Regarding the comment that the requirement to maintain “plant equipment and systems that could fail” is too vague, EPA disagrees. EPA does not agree that the requirement should be limited to “high risk areas” since the requirement already is tied to equipment and system failure that could “result in contamination of stormwater,” which this permit seeks to minimize.

EPA also disagrees that the requirement to inspect and maintain baghouses is too narrow and prescriptive. A ruptured baghouse could lead to significant stormwater contamination, and thus it is critical that they be properly maintained and inspected.

See also response to comment 0 083.001.006 and 0033.001.003.

Comment ID 0092.001.018 Issue Category: 2.1.2.3

Author Name: Jeffrey Longsworth Maintenance

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Conversely, the requirements in Section 2.1.2.3 to inspect and maintain whatever control measures that have been put in place to meet non

- numeric effluent limits is appropriate; however, the mandate for "immediate" corrective action must be revised (see Pa rt 4 comments below).

Response

” Immediate” is used when a corrective action is necessary to prevent further or imminent discharge of pollutants that could adversely impact water quality. Otherwise, the final corrective action could take as much as 45 days (or greater upon notification of the EPA Region). This provides the flexibility permittees

need.

Comment ID 0094.001.010 Issue Category: 2.1.2.3

Author Name: Eric Fry Maintenance

Organization: Peabody Energy

7) 2.1.2.3 Maintenance. EPA should provide a better explanation for why the "[ c ]leaning catch basins"2015 EPA MSGP Response to Comments June 4, 2015

193 bullet is needed. The inclusion of it seems arbitrary, and with respect to Sector H, seems contrary to the ability of the coal industry to adopt structu ral control measures approved in SMCRA permits.

Response EPA has included an explanation for the new catch basin maintenance requirement in the Fact Sheet. EPA also notes that it has no evidence of any conflicting requirements under other laws (i.e., SM CRA).2015 EPA MSGP Response to Comments June 4, 2015

194 

### Issue Category: Section 2.1.2.4 - Spill Prevention and Response

Comment ID 0087.001.006 Issue Category: 2.1.2.4

Author Name: Kathleen Martin Spill Prevention and Response

Organization: Alcoa Inc.

Section 2.1.2.4 Spill Prevention and Response

• The language in this section regarding spill response measures is better suited to guidance than inclusion in the MSGP. For example, this section requires the use of barriers between material storage and tr affic areas. This may be appropriate in some situations, but in other situations these barriers could become obstacles for material handling equipment, like fork trucks, leading to safety issues. The requirement should be to evaluate storage areas for spil l potential and take appropriate steps to prevent storm water pollution, and specific recommendations of ways to achieve this (e.g., barriers) included in guidance. Additionally, the language regarding labeling containers that could be susceptible to leaka ge may lead to redundant labeling of containers that may already be subject to labeling requirements under RCRA, OSHA, SPCC or other rules. This language should be removed from the MSGP and reserved for guidance.

Response EPA disagrees that the spill prevention and response effluent limits are better suited to guidance. EPA views spill prevention and response procedures as critical to minimizing the discharge of pollutants in stormwater discharges from industrial activities. Discharges from spills at reg ulated industrial facilities can and have caused water quality impairments and serious drinking water problems downstream. One notable incident of drinking water contamination caused by direct discharges of spilled material at an

industrial stormwater -perm itted facility occurred January 9, 2014 at the Freedom Industries facility near Charleston, West Virginia. The spill was caused by a steel storage tank leak, which resulted in direct discharges of crude 4

- methylcyclohexane methanol (MCHM) into the Elk River, leaving 300,000 residents, as well as businesses, hospitals, and schools without drinking water. Implementation of spill prevention and response procedures under Part 2.1.2.4 will minimize the likelihood of future incidents like this. Regarding the comm enter’s concerns that compliance with the effluent limit could lead to safety issues, EPA notes that there is significant flexibility regarding the types of material storage and handling procedures employed in Part 2.1.2.4, and thus operators should choose a compliance method that maximizes safety.

Regarding the comment on labeling containers, EPA notes that compliance with MSGP via other regulations/statutes is acceptable as long as documentation in the SWPPP is provided.

Comment ID 0094.001.011 Issue Category: 2.1.2.4

Author Name: Eric Fry Spill Prevention and Response

Organization: Peabody Energy

8) 2.1.2.3 Spill Prevention and Response. The new bullet requiring spill kits to be located "near areas where spills may occur" is too broad of a requirement and does not consider how large certain facilities are. Spill Prevention, Control and Countermeasure Plans (SPCC) are in place at our mine sites and are more than sufficient to deal with the situation EPA is trying to address. Also, the notification bullet (and paragraph beneath the bullet) is not consistent with other language in the permit specifying which regulations should be followed. The notification requirement should be more tightly written, and possibly more importantly, notification should be limited to "reportable spills."2015 EPA MSGP Response to Comments June 4, 2015

195 Response To address the concern in this comment, EPA has revised Pa rt 2.1.2.3 as follows: “ Keep spill kits on -site, located near areas where spills may occur or where a rapid response can be made ,” (emphasis added).

It is not clear to EPA how the notification language in Part 2.1.2.4 is inconsistent with other language in the permit. Therefore, EPA declines to modify this part of the effluent limit.2015 EPA MSGP Response to Comments June 4, 2015

196 

### Issue Category: Section 2.1.2.5 - Erosion and Sedimentation Controls

Comment ID 0029.001.002 Issue Category: 2.1.2.5

Author Name: Kim Cox Erosion and Sedimentation Controls

Organization: City of Portland Environmental Services

3. Adding erosion control BMPs to the main MGP document. In this MGP proposal, EPA is suggesting that the MGP will cover construction activities less than one acre on industrial sites covered by the MGP. If that proposal stands, then EPA should include at least a subset of erosion control specific BMPs to the main general permit to assure those construction site activities are adequately managed. EPA is already adding significant erosion control related BMPs to the mining sector activity

- specific permits, b ut failed to include any erosion control BMPS in the main permit. While some of the general industrial permit elements apply to construction sites such as "minimizing contact" and "good housekeeping", specific

erosion control BMPs should be included.

Re sponse Part 2.1.2.5 contains e rosion and sediment control requirements for areas exposed/disturbed earth that may occur at the industrial facility. Except for at mining sites, “construction” as defined in 122.26(b)(14)(x) and (b)(15)(i) must be covered by EPA’s CGP or an individual permit. Therefore, EPA declines to include additional erosion and sediment control effluent limits applicable to construction activities in the MSGP (except for the construction activities occurring in the mining sectors).

Com ment ID 0064.001.005 Issue Category: 2.1.2.5

Author Name: Katie Kistler Erosion and Sedimentation Controls

Organization: AK Steel Corporation

Erosion and Sediment Control Under the Erosion and Sediment Control portion of Section 2, the draft MSGP contains the following statement: "You must minimize erosion by stabilizing exposed soils at your facility and placing flow velocity dissipation devices at discharge locations. You must also use structural and non

- structural control measures to prevent the discharge of sediment." This statement appears to essentially exclude large Primary Metals sector facilities from coverage under this permit. Large unpaved and earthen areas are

c ommon at larger steel mills, such that stabilization of all areas is not practical. The final discharge locations at these facilities are sometimes submerged or equipped with effluent diffusers designed to achieve certain mixing characteristics the receivi ng stream, which may not be considered "velocity dissipation devices." AK Steel suggests a more general requirement that provides more flexibility to prevent erosion and the discharge of sediment:

Through a combination of one or more BMPs or controls, mi nimize the potential for discharge of sediment and minimize the potential for erosion at the discharge location to the extent practical.

Response EPA declines to modify the effluent limit in response to this comment because stabilization can be

achieve d on large unpaved and earthen areas through techniques such as compaction of the soil, covering with gravel and/or application of a soil binder. Regarding the concern with the requirement to use flow velocity dissipation devices, EPA notes that the requirement applies to the extent necessary to “minimize channel and streambank erosion and scour.” Therefore, these devices are not required to be installed when they are not necessary to reduce channel and streambank erosion and scour.2015 EPA MSGP Response to Comments June 4, 2015

197 Comment ID 0070.001.0 18 Issue Category: 2.1.2.5

Author Name: Beth Goodnough Erosion and Sedimentation Controls

Organization: Western Fuels Association Inc.

Part 2.1.2.5 requires operators to implement a trio of measures on areas with exposed soils. Part 2.1.2.5 states "You must minimize erosion by stabilizing exposed soils at your facility and placing flow velocity dissipation devices at discharge locations. You must also use structural and nonstructural control measures to prevent the discharge of sediment." This trio of controls is appropriate for typical construction areas that are graded to their final configuration. However, in mining, most areas with

exp osed soils are areas that will be mined through in short order. Implementing stabilization measures, such as mulching or seeding or running over the exposed lands with dozers, would be cost prohibitive given that these lands will typically be mined through in a less than a year.

Response See mining comment response essay.

Comment ID 0083.001.007 Issue Category: 2.1.2.5

Author Name: David Wagger Erosion and Sedimentation Controls

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Erosion and Sediment Controls May Not Require Use of Flow Velocity Dissipation Devices.

Proposed §2.1.2.5 ("Erosion and Sediment Controls") contains requirements to "minimize erosion by stabilizing exposed soils at [the permittee's] facility and placing flow velocity dissipation devices at discharge locations [and also to] use structural and non

- structural control measures to prevent the discharge of sediment." It is worth noting that the use of dissipation devices at discharge locations seems aimed at pr eventing erosion off

- site, rather than on

- site. At the same time, Federal regulations provide authority for issuing permits "for the discharge of ‘pollutants' from any ‘point source' into ‘waters of the United States'" (40 CFR §122.1(b)); in such permits, an "[e]ffluent limitation means any restriction imposed by the Director on quantities, discharge rates, and concentrations of ‘pollutants' which are ‘discharged' from ‘point sources' into ‘waters of the United States,' the waters of the ‘contiguous zone,' or the ocean". The effluent limitation, including "non

- numeric technology

- based" effluent limitations, is for the pollutant, not the stormwater containing or conveying the pollutant [FN5]. Therefore, "placing flow velocity dissipation devices at discharge locations" may not be required (additionally because it seems

aimed at off

- site erosion) in the permit. However, "prevent[ing] the discharge of sediment" may be required as long as it involves only reduction of sediment in stormwater runoff (i.e., reductio n by avoidance, removal, or both) prior to discharge. Yet, this is not to say that "placing flow velocity dissipation devices at discharge locations" cannot provide any benefits and may not be used by a permittee to meet permit requirements; rather, any reference to such devices in the Draft 2013 MSGP must be as guidance or an option.

[FN5] This distinction was upheld in at least one recent court decision (i.e., Virginia DOT v. EPA (E.D. Va., No. 1:12

- cv

- 775, 1/3/13)).

Response The velocity dissipa tion device effluent limit is intended to minimize erosion within channels on

- site (to minimize discharges of pollutants, including sediment, from the site to waters of the United States), and to minimize scour in the immediate vicinity of the discharge point due to high stormwater volume and velocity (again, to minimize the discharge of pollutants, including sediment, from the site to waters of the2015 EPA MSGP Response to Comments June 4, 2015

198 United States). It would make little sense to remove pollutants from stormwater from earth disturbances prior to discharge only to discharge that water into the receiving water in such as manner as to cause erosion and mobilization of pollutants in the receiving water. This provision is intended to limit the discharge of pollutants caused by erosive flows and is therefore within EPA’s authority. EPA thus declines to remove this requirement from the 2015 MSGP.

Comment ID 0086.001.013 Issue Category: 2.1.2.5

Author Name: Daniel Graham Erosion and Sedimentation Controls

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Part 2.1.2.5: EPA proposes to require facilities to implement a trio of measures on areas with exposed soils: (i) stabilizing exposed soils: (ii) placing flow velocity dissipation devices at discharge locations; and (iii) using structural and non -structura l control measures to prevent the discharge of sediment. These controls may be appropriate for typical construction areas that are graded to their final configuration. For many mine operations, however, most areas with exposed soils will be mined through in short order. Implementing stabilization measures, e.g., mulching, seeding, running over the exposed lands with dozers, would be cost prohibitive given that these lands typically will be mined through in less than one year and should not be required.

R esponse See mining comment response essay.

Comment ID 0087.001.007 Issue Category: 2.1.2.5

Author Name: Kathleen Martin Erosion and Sedimentation Controls

Organization: Alcoa Inc.

Section 2.1.2.5 Erosion and Sediment Controls

• This section is overly prescriptive. The requirement should be limited to the development and inclusion of BMPs in the SWPPP for erosion and sediment management.

Response Here EPA disagrees that the erosion and sediment control effluent limits are ove rly prescriptive . They are, in EPA’s BPJ, technologically available and economically practicable limits that will ensure that erosion and discharges of sediment are adequately minimized. See the Fact Sheet for additional discussion.

Comment ID 0092.001.0 20 Issue Category: 2.1.2.5

Author Name: Jeffrey Longsworth Erosion and Sedimentation Controls

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 2.1.2.5 clearly exceeds EPA's statutory authority. EPA can mandate that sediment discharges through point sources be controlled and pollutants minimized, but it cannot mandate velocity controls or

other on

- site mandates not directly related to pollutant discharges. For these same reasons, EPA proposed to amend the Construction & Development ELGs with more refined and focused BMP mandates. See 78 Fed. Reg. 19,434 (April 1, 2013) and FSWA comments on that proposed rule (attached).2015 EPA MSGP Response to Comments June 4, 2015

199 Response See resp onses to comments 0092.001.002 and 0083.001.007. EPA reiterates that all of the conditions in the MSGP are related to minimizing the discharge of pollutants from point sources to waters of the United

States.

Comment ID 0093.001.020 Issue Category: 2.1.2 .5

Author Name: Amanda Aspatore Erosion and Sedimentation Controls

Organization: National Mining Association (NMA)

Part 2.1.2.5: EPA proposes to require facilities to implement a trio of measures on areas with exposed soils: (i) stabilizing exposed soils: (ii) placing flow velocity dissipation devices at discharge locations; and (iii) using structural and non -structura l control measures to prevent the discharge of sediment. These controls may be appropriate for typical construction areas that are graded to their final configuration. For many mine operations, however, most areas with exposed soils will be mined through in short order. Implementing stabilization measures, e.g., mulching, seeding, running over the exposed lands with dozers, would be cost prohibitive given that these lands typically will be mined through in less than one year and should not be required.

R esponse See mining comment response essay.

Comment ID 0094.001.012 Issue Category: 2.1.2.5

Author Name: Eric Fry Erosion and Sedimentation Controls

Organization: Peabody Energy

9) 2.1.2.5 Erosion and Sediment Controls. EPA proposes to require facilities to implement a trio of measures on areas with exposed soils: (i) stabilizing exposed soils: (ii) placing flow velocity dissipation devices at discharge locations; and (iii) using structural and non

- structural control measures to prevent the discharge of sediment. These controls may be appropriate for typical construction areas that are graded to their final configuration. For many mine operations, however, most areas with exposed s oils will be mined through in short order. Implementing stabilization measures, e.g., mulching, seeding, running over the exposed lands with dozers would be cost prohibitive given that these lands typically will be mined through in less than one year and should not be required.

Response See mining comment response essay.2015 EPA MSGP Response to Comments June 4, 2015

200 

### Issue Category: Section 2.1.2.6 - Management of Runoff

Comment ID 0031.001.002 Issue Category: 2.1.2.6

Author Name: Anthony Grieggs Management of Runoff

Organization: Los Alamos National Security (LANS)

1. Section 2.1.2.6 Management of Runoff: The proposed 2013 MSGP requires facilities to divert, infiltrate, reuse, contain, or otherwise reduce stormwater runoff. How must a facility quantify reduction of runoff to demonstrate compliance? Please provide clarification or specific examples.

Respo nse Specific quantifiable results are not required for compliance with this effluent limit. Proper implementation of appropriate controls will result in pollutant reductions that meet the effluent limit.

Comment ID 0083.001.008 Issue Category: 2.1.2.6

Au thor Name: David Wagger Management of Runoff

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)

Management of Runoff May Not Require Reduction of Stormwater Runoff or Discharges.

Proposed §2.1.2.6 ("Management of Runoff") contains a requirement to "divert, infiltrate, reuse, contain, or otherwise reduce stormwater runoff, to minimize pollutants in [the permittee's] discharges". This requirement is aimed at reducing the flow rate of stormwater runoff on

- site and stormwater discharged

off- site. As noted above, the Federal regulations allow effluent limitations on the discharge of pollutants, not the stormwater containing or conveying them. While there may be good engineering reasons f or reducing (in any combination) the velocity of stormwater runoff on

- site or the velocity or flow rate of stormwater discharged off

- site as part of a stormwater management program (e.g., to reduce on -site surface transport of particles, to increase residence time for more

- effective settling of particles in detention devices, and to reduce the size of any structural control measures), such velocity or flow -rate reductions may not be required in the permit. However, this is not to say that such velocity or f low -rate reductions cannot provide any benefits and may not be used by a permittee to meet permit requirements; rather, any reference to such reductions in the Draft 2013 MSGP must be as guidance or an option.

Response Runoff management is necessary to reduce erosion and the mobilization, transport and discharge of sediment and other pollutants in industrial stormwater discharges off

- site and to waters of the United States, and thus this effluent limit is within EPA’s authority. Therefore, EPA declines to remove this requirement from the 2015 MSGP. See also response to Comment ID 0092.001.020.

0083.001.007

Comment ID 0085.001.032 Issue Category: 2.1.2.6

Author Name: Zachary Griefen et al. Management of Runoff

Organization: Conservation Law Foundation et al.

C. Comment on 2.1.2.6

- Management of Runoff2015 EPA MSGP Response to Comments June 4, 2015

201 The permit encourages infiltration of stormwater as a tool for minimizing pollutants in discharges. Generally, encouraging the infiltration of runoff in urban areas is preferable to rapidly discharging large volumes of stormwater into aquatic ecosystems. B ut many MSGP covered facilities generate contaminated runoff containing dissolved pollutants that can form plumes in groundwater. Management of runoff in this situation must be carefully controlled.

First, the Fact Sheet mentions the possibility that inf iltration systems may qualify as Class V wells under the Underground Injection Control program. Experience indicates that the UIC program is not widely understood by permittees. Instead of discussing this only in the Fact Sheet, EPA should include a

refere nce to the UIC program and the possibility that infiltration devices may be regulated as Class V wells in the general permit, and in the online eNOI submission process.

Second, how does EPA propose to address and control dissolved pollutants in discharges from MSGP permitted facilities that are deliberately infiltrated to ground? Presumably, EPA does not think it appropriate for permittees to infiltrate stormwater containing water soluble organic pollutants or metals that could form a contaminant plume if a facility overlies underground sources of drinking water, or if a facility is close to a surface water and discharges into groundwater that is directly hydrologically

connected to that surface water.

To control infiltration risks, EPA should require pe rmittees to use the results of their pollutant characterization efforts in their SWPPP to analyze the likelihood that any infiltrated stormwater is contaminated with soluble pollutants, EPA should establish clear numeric thresholds for such dissolved pollu tants, and should require as a non

- numeric technology based effluent limitation that permittees not use infiltration as a control measure for discharges whose concentration of dissolved pollutants exceeds or is likely to exceed the thresholds.

Finally, E PA's long

- standing and court

- approved interpretation of the Clean Water Act is that the Act applies "to discharges of pollutants from a point source via ground water that has a direct hydrologic connection to surface water."[FN105] Accordingly, where a per mittee chooses to manage polluted stormwater by infiltrating it into groundwater that is directly hydrologically connected to surface waters, EPA should clarify in the permit, or in its response to comments, that the infiltration system in question is an outfall. As such, discharges to the infiltration system are subject to monitoring requirements like any

other outfall.

[FN105] See EPA, National Pollutant Discharge Elimination System Permit Regulation and Effluent

Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 3017 (Jan. 12, 2001).

Response EPA disagrees that it is necessary to include information about the UIC program in the permit itself, since the information is readily available to permittees in the Fact Sheet. Permittees must know what their pollutants of concern are and which of those pollutants could be in any underground injection well so they can determine whether impacts to ground water could occur. The permit does include provisions that wi ll ensure the protection of ground water from stormwater that is infiltrated (see Part 2.1.1). EPA provides further guidance in the Fact Sheet. Regarding the commenter’s suggestion to require monitoring for discharges to infiltration systems, see the monit oring response to comment essay.

Comment ID 0087.001.008 Issue Category: 2.1.2.6

Author Name: Kathleen Martin Management of Runoff

Organization: Alcoa Inc.2015 EPA MSGP Response to Comments June 4, 2015

202 Section 2.1.2.6 Management of Runoff

• This section should be removed and stated as an overall approach and guidance for the permit but without dictating this particular requirement within the permit itself.

Response See response to comment 0083.001.008.

Comment ID 0092.001.021 Issue Cate gory: 2.1.2.6

Author Name: Jeffrey Longsworth Management of Runoff

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 2.1.2.6 raises the same issues and clearly is guidance, referring to other guidance (some of which is not drafted for stormwater associated with industrial activity).

Response See response to comment 0083.001.008.2015 EPA MSGP Response to Comments June 4, 2015

203 

### Issue Category: Section 2.1.2.7 - Salt Storage Piles or Piles Containing Salt

Comment ID 0092.001.022 Issue Category: 2.1.2.7

Author Name: Jeffrey Longsworth Salt Storage Piles or Piles Containing Salt

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm

Water Association (FSWA)

Section 2.1.2.7 is similar to the "guidance" sections discussed above, but is a clear example of EPA recognizing that its mandates relating to salt storage piles are not applicable unless directly related to pollutant discharges off

- site. But the final paragraph in the Fact Sheet explaining this section [FN2] goes beyond mere guidance and should be deleted. All BMP mandates in the MSGP must be directly related to the discharge of pollutants from point sources to waters of the U.S.

[FN2] "Options for meeti ng the salt pile effluent limit include covering the piles or eliminating the discharge from such areas of the facility. Preventing exposure of piles to stormwater or run

- on also eliminates the economic loss from materials being dissolved and washed away. A permanent under -roof storage facility is the best way to protect chemicals from precipitation and runoff, but where this is not possible, salt piles can be located on impermeable bituminous pads and covered with a waterproof cover."

Fact Sheet at 26.

Response EPA disagrees that the Fact Sheet explanation regarding this effluent limit must be deleted. The Fact Sheet verbiage on salt piles reiterates the Part 2.1.2.7 requirements and also provides further information on options to aid compliance and the benefits of implementing controls. This kind of information is appropriate for inclusion in Fact Sheets.2015 EPA MSGP Response to Comments June 4, 2015

204 

### Issue Category: Section 2.1.2.8 - Employee Training

Comment ID 0092.001.019 Issue Category: 2.1.2.8

Author Name: Jeffrey Longsworth Employee Training

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

FSWA also supports appropriate employee training contained in Section 2.1.2.8.

Response EPA appreciates the commenter’s support for Part 2.1.2.8.2015 EPA MSGP Response to Comments June 4, 2015

205 

### Issue Category: Section 2.1.2.9 - Non -Stormwater Discharges

Comment ID 0092.001.023 Issue Category: 2.1.2.9

Author Name: Jeffrey Longsworth Non

- stormwater discharges

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm

Water Association (FSWA)

Section 2.1.2.9 repeats an earlier requirement in Part 1.1.3 and should be deleted to better streamline the permit (one of EPA's priorities for the 2013 MSGP).

Response EPA agrees. The revised Part 2.1.2.9 is similar to the effluent limit in the 2008 MSGP.2015 EPA MSGP Response to Comments June 4, 2015

206 

### Issue Category: Section 2.1.2.10 - Dust Generation/Vehicle Tracking

Comment ID 0087.001.009 Issue Category: 2.1.2.10

Author Name: Kathleen Martin Dust generation/vehicle tracking

Organization: Alcoa Inc.

Section 2.1.2.10 Dust Generation and Vehicle Tracking of Industrial Materials

• The language "You must minimize generation of dust..." is overly broad and should be removed. Instead discharges of total suspended solids should be managed through BMPs and the SWPPP.

Response EPA disagrees, as dust control is an important control to minimize pollutants in discharges, as determined by EPA’s BPJ based on BAT/BPT/BCT.

Comment ID 0092.001.024 Issue Category: 2.1.2.10

Author Name: Jeffrey Longsworth Dust ge neration/vehicle tracking

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 2.1.2.10 falls into the category of EPA lacking statutory authority. As explained in the Fact Sheet, EPA cannot mandate controls not related to stormwater discharges through point sources to waters of the U.S. In addition, EPA's additional explanation in the Fact Sheet about stormwater infiltration and compliance with the Underground Injection Control regulations is misplaced for a permit related to pollutant discharges through point sources. EPA may include the discussion in guidance, but should no t imply that it has a statutory mandate to require infiltration or to reiterate UIC requirements unrelated to the discharges to surface waters subject to MSGP permitting.

Response EPA disagrees with the comment. The dust generation and vehicle tracking effluent limit is related to the minimization of pollutants in industrial stormwater, and therefore is within EPA’s authority. Additionally, EPA disagrees that the Fact Sheet explanation about stormwater infiltration is misplaced, since controls implemente d by industrial operators complying with this permit could include stormwater infiltration. EPA clarifies that it is not mandating infiltration under the MSGP.2015 EPA MSGP Response to Comments June 4, 2015

207 

### Issue Category: Section 2.1.3 - Numeric Effluent Limits

Comment ID 0085.001.002 Issue Category: 2.1.3

Author Name: Zachary Griefen et al. Numeric Effluent Limits

Organization: Conservation Law Foundation et al.

B. EPA Must Finally Set National Effluent Limitations Guidelines For Discharges Of Stormwater Associated With Industrial Activity.

The BAT effluent limitations for toxic pollutants "are to be adopted by the Administrator, [] they are to be based primarily on classes and categories, and [] they are to take the form of regulations."[FN11] Thus, EPA must set effluent limitations through a nationally applicable regulation, not in general permits that cover only a limited number of sites within a larger class or category of dischargers.

Effluent limitations must be set by regulation

- not by permit

- because Congress intended the § 301 effluent limitations to be nationally uniform standards of pollution control. [FN12] "[E]ffluent limitations

were intended to create floors that had to be respected by state permit programs."[FN13]

EPA consistently has agreed with the federal courts that it must set nationally uniform effluent limitations by regulation, not through NPDES permits. Since 1972, EPA has argued tha t "Congress intended that EPA promulgate § 301 ‘effluent limitations' by regulation before the permit

- granting procedure is initiated" to provide a nationally uniform minimum level of pollution control. [FN14] And EPA believes

that the Clean Water Act "cal ls for the setting of across the

- board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b)."[FN15] Section 301 obliges EPA to set nationally binding effluent limitations, NPDES permits are a tool to enforce thes e uniform standards and

deviate from them when warranted.

The effluent limits in EPA's general permit are not a lawful substitute for nationally binding and uniform effluent limitations under Section 301. And although EPA intends that its own permits act as models for state permits, the states are not obliged to follow EPA's lead and adopt its effluent limits. Thus, the current system meets neither the letter nor the intent of the Clean Water Act, which is that EPA should promulgate uniform national stand ards to control water pollution.

EPA should initiate the long overdue process of setting national effluent limitations for discharges of stormwater associated with industrial activity. EPA should use this MSGP as a vehicle for accomplishing most of the work that it will need to do in order to promulgate national effluent limitation guidelines.

C. EPA Must Include Numeric Effluent Limitations In This MSGP.

Numeric limits are required in a NPDES permit where practical. EPA has always understood that the Clean Water Act expressed a Congressional preference for clear, uniform, national and numeric effluent limitations where feasible. In fact, in the early Clean Water Act case of NRDC v. Costle, EPA took the position that if it could not set numeric effluent limits in NPDES permits, then it could not set effluent limits at all. [FN16]

The Clean Water Act's preference for numeric effluent limitations is expressed both in the statutory text and in EPA's regulation. The definition of an effluent limitation emphasizes the restriction of "quantities, rates, and concentrations"[FN17] of pollutants

- i.e. restrictions on quantifiable attributes of the discharge. Such restrictions are obviously best expressed in quantitative (numeric) terms themselves.2015 EPA MSGP Response to Comments June 4, 2015

208 Similarly, Section 304(b) of the Act requires that EPA set effluent limitations that "identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable." And Section 304(e) makes clear that, at least in the case of toxic pollutants, numeric effluent limitations are the preferred control strategy while best management practices and other control measures are intended only as supplementary limits on pollution.

Following from the text of the Act, EPA's regulations state that control measures (such as best management practices) are to be included in NPDES permits when "numeric effluent limitations are infeasible; or the practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes of the CWA." 40 C.F.R. § 122.44(k)(3)

- (4). If it is feasible to develop numeric

effluent limitations then EPA must do so and must include these numeric limits in the MSGP.

In past iterations of the MSGP, EPA has claimed that development of numeric effluent limitations was infeasible. This is stated most extensively in the fact sheet developed for the 2008 MSGP:

"Numeric effluent limitations are not always feasible for industrial stormwater discharges as such discharges pose challenges not presented by the vast majority of NPDES

- regulated discharges. Stormwater discharges can be highly intermittent, are usually characterized by very high flows occurring over relatively short time intervals, and carry a variety of pollutants whose source, nature and extent varies. . . . While EPA continues to study the efficacy of various types of pollution prevention measures and BMPs, EPA at this time does not have a record basis for developing numeric limits that would reasonably represent a well

- run application of BMPs. Because the flow and content is so variable, if EPA were to try to base numeric limits on a few sites, it is likely that any number it would develop would not to be technologically available and economic ally achievable by all well

- run facilities. These factors create a situation where, at this time, it is generally not feasible for EPA to calculate numeric effluent limitations. . . Therefore, EPA has determined that it is not feasible for the Agency to ca lculate numeric, technology- based limits for many of the discharges covered under this permit and, based on the authority of 40 CFR 122.44(k), has chosen to adopt non

- numeric effluent limits."

2008 Fact Sheet at 38 -39.

This excuse has worn thin. EPA has allegedly been gathering representative stormwater samples and considering how to deal with the inherent variability of stormwater discharges in setting numeric effluent limits since at least 1985, when it noted that "29 trade associations and individual industries submitted commitment letters to EPA indicating their willingness to conduct representative quantitative sampling and analysis in order to assist the Agency in developing a sound data base on storm water discharg es." [FN18] Three decades later, it is time for EPA to take the data it has amassed and use this wealth of

information to establish numeric effluent limits in this MSGP.

EPA has access to all of the data that it needs to set numeric effluent limits. Stat es that require stormwater sampling as a condition of their MSGPs maintain this data in electronic form and provide sampling

results to EPA for inclusion in its national databases. Since the National Research Council issued its report in 2008, EPA has spent the last few years integrating enforcement and water pollution monitoring databases, including the ICIS and PCS systems, into a single framework. At this point, EPA has made the investment needed to bring together data from hundreds of thousands of observations of stormwater pollutant concentrations from industrial sites. For example, Commenters note that looking only at New York State, and only at reporting years 2009

- 2011, EPA's ECHO database provides access to more than 38,000 individual parameter measurements from more than 1,000 permittees operating under New York's MSGP, which is very closely modeled on EPA's. If EPA wishes to, it can draw on tens of thousands of samples, taken around the country, from scrap metal recyclers, cement plants, marinas, asphalt pavement plants, and every other industrial sector covered under the MSGP. Since state permits tend to refer almost2015 EPA MSGP Response to Comments June 4, 2015

209 exclusively to EPA sampling protocols and methodologies, nearly all stormwater samples are taken under conditions that are close or identical to those at facilities regulated under the MSGP.

In short, "big data" has come to the world of stormwater permitting. But EPA has inexplicably failed to do the work needed to translate this data into the basis for numeric effluent limitations. In the study of benchmark monitoring that forms the basis for this draft permit, [FN19] EPA relies solely on benchmark monitoring data from current MSGP permittees and, within that group, only on the 485 facilities using the eNOI system. Similarly, EPA supplemented this by looking at a random but not statistically representative or adequate sample of 35 permittees, of whom only 20 returned SWPPPs and discharge monitoring reports.

This is a small fraction of the tens of thousands of industrial stormwater facilities subject to benchmark monitoring requirements, mostly under state

- issued MSGPs modeled very closely on EPA's with similar or identical benchmark monitoring requirements. In addition, a number of states require permittees to provide SWPPPs to the pu blic on demand. Using federal and state freedom of information laws, and without EPA's authority to demand information from permittees pursuant to Section 308 of the Act, any person in the United States could have gathered a larger sample of relevant information to inform EPA's rulemaking with just a few hours work.

As a consequence of EPA's inadequate efforts at data collection and analysis , the situation remains as the National Research Council described it in 2008: "Many of the benchmark monitoring re quirements and effluent guidelines for certain industrial subsectors are based on inaccurate and old information. Furthermore, there has been no nationwide compilation and analysis of industrial benchmark data, as has occurred for MS4 monitoring data, to b etter understand typical stormwater concentrations of pollutants from various industries."[FN20] Currently, "there is no separate compilation of quantitative mass emissions from specific industrial stormwater sources that may have been collected under indu strial permit monitoring efforts."[FN21]

EPA is ignoring the vast majority of available stormwater sampling data

- hundreds of thousands, if not millions, of observations

- a record that goes back at least to the industry offers that EPA received in

1985 , discussed above, and includes all of the data currently available in EPA's ECHO system and underlying databases. In its report, the National Research Council informed EPA that

too few samples are collected to sufficiently characterize the variability of pollutant concentrations associated with industrial facilities within a sector. . . . EPA has not requested a nationwide effort to compile these data, as was done for the MS4 program, although this could potentially lead to average

effluent concentration s by industrial sector that could be used for a variety of purposes, including more considerate regulations."[FN22]

Since the NRC wrote its report in 2009, EPA has completed the "nationwide effort to compile these data" by integrating its existing databases of state

- authorized stormwater sampling. EPA is now in a position to finalize this MSGP by completing the analysis, deriving "average effluent concentrations," and establishing the "more considerate regulations" that the NRC called for

- i.e., numeric effluent limits. EPA's failure to consider all of the stormwater sampling data it can access before issuing the draft MSGP, and EPA's failure to use this larger pool of information to generate robust and numeric effluent limitations, are both arbitrary, capricious, an abuse of discretion, and not in accordance with EPA's duty

under the Act to set numeric effluent limitations unless infeasible.

Further, EPA's concerns about how variability in stormwater samples affects numeric effluent limits can be addressed and resolved. Four years ago, the National Research Council explained to EPA four years ago precisely what EPA must do to better monitor individual industries, control variability, and determine2015 EPA MSGP Response to Comments June 4, 2015

210 effluent limits for industrial categories. [FN23] This includes more frequent sampling at high risk industrial sites and better sample collection methods, including the use of flow

- weighted composites or other composite samples. [FN24]

The reservations that EPA has expressed about some facilities finding it difficult to meet numeric effluent limitations are not warranted. As discussed below, BAT standards are designed to require the level of performance achieved by the best performers in an industry, not to be met by all of the facilities in an industry (or even by all "well run" facilities). In addition, EPA can use statistical cutoffs (i.e. removal of outliers) to set numeric limits, EPA has the ability to subdivide the more than 100,000 industrial facilities covered by this permit and state permits modeled cl osely upon it [FN25] into sub

- groups to facilitate establishment of numeric limits, and EPA also has authority to issue "fundamentally different factors" variances to facilities who can establish that their circumstances are so unique that they legitimatel y cannot meet a numeric effluent limit. [FN26] Or EPA could always allow such dischargers to seek coverage under individual permits. At the very least, EPA could convert its existing benchmarks to

effluent limitations.

[FN11] DuPont v. Train, 430 U.S. 112, 129 (1977), see also id. at 126 ("[t]he statutory language concerning [BAT effluent limitations], in particular, leaves no doubt that these limitations are to be set by regulation.").

[FN12] See Chem Mfrs. Ass'n v. NRDC, 470 U.S. 116, 130 (1985) ("Con gress did intend uniformity among sources in the same category, demanding that ‘similar point sources with similar characteristics . . . meet similar effluent limitations.'"); accord id. at 134

- 35 (Justice Marshall, dissenting) (stating that

"EPA conducts rulemaking proceedings and promulgates nationwide, categorical limitations, that is, limitations applicable to categories of dischargers effluent limitations," and describing effluent limitations as "national standards that limit the discharge of toxic water pollutants.").

[FN13] NRDC v. Costle, 568 F.2d 1369, 1378 (D.C. Cir. 1977)

[FN14] Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 625 (2d Cir. 1976) (emphasis added).

[FN15] American Meat Institute v. EPA, 526 F.2d 442, 449 (7th Cir. 1975); see also NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977) ("EPA argues that the regulatory scheme intended under Titles III and IV of the FWPCA requires, first, that the Administ rator establish national effluent limitations and, second, that these limitations be incorporated in the individual permits of dischargers.").

[FN16] "EPA's implicit premise is that . . . it is still necessary to articulate any limitation in terms of a

n umerical effluent standard." NRDC v. Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1977). The D.C. Circuit also noted that Congress expected EPA to "develop[] guidelines and corresponding uniform numeric effluent limitations" by certain dates. Id. at 1379 (emphas is added).

[FN17] 33 U.S.C. § 1362(11).

[FN18] EPA, National Pollutant Discharge Elimination System Permit Regulations; Storm Water Point Sources; Additional Information and Request for Comments, 50 Fed. Reg. 32548 (Aug. 12, 1985). See also USM at 67 (describing lengthy history of EPA's studies).

[FN19] 2008 MSGP Benchmark Discharge Monitoring Report Analysis and SWPPP Compliance Review, EPA -HQ-OW2012- 0803-0002

[FN20] USM at 7.2015 EPA MSGP Response to Comments June 4, 2015

211 [FN21] USM at 183.

[FN22] USM at 282 (emphasis added).

[FN23] USM at 257.

[FN24] USM at 280

- 300, 329 -333.

[FN25] See EPA, Final National Pollutant Discharge Elimination System Storm Water Multi -Sector General Permit for Industrial Activities, 60 Fed. Reg. 50804, 50807 (Sept. 29, 1995) ("EPA estimates that about 100, 000 facilities nationwide discharge storm water associated with industrial activity . . .").

[FN26] See 33 U.S.C. § 1311(n), 40 C.F.R. § 125.30

- 32 (establishing procedures for "fundamentally different factors" variances from otherwise applicable effluent limitations).

Response See response to comment 0085.001.001and the monitoring response to comment essay . EPA sets numeric or narrative limitations in the ELG rulemaking process, but where no ELG applies, puts TBELs in stormwater and other permits using its BPJ (per 40 CFR 125.3). Where ELGs contain limitations, numeric or otherwise, that apply to stormwater discharges, these limitations are included in the MSGP. EPA adds that due to the variability of stormwater discharges, numeric limitations for stormwater are rarely able to be derived. It is simply not possible for the Agency set numeric effluent limitations at the level desired by commenter and no viable means of accomplishing this on such a scale (including the NRC in their report cited by comm enter) was provided to EPA in comments on the proposed 2015

MSGP. See also the Fact Sheet.

Comment ID 0085.001.033 Issue Category: 2.1.3

Author Name: Zachary Griefen et al. Numeric Effluent Limits

Organization: Conservation Law Foundation et al.

1. Include numeric effluent limitations in this MSGP

2. Set effluent limitations through a nationally applicable regulation, not in general permits that cover only a limited number of sites within a larger class or category of dischargers.

Response

Se e response to Comment ID 0085.001.002, 0085.001.001, and the monitoring response to comment

essay.

Comment ID 0087.001.010 Issue Category: 2.1.3

Author Name: Kathleen Martin Numeric Effluent Limits

Organization: Alcoa Inc.

Section 2.1.3 Numeric Effluent Limitations Based on Effluent Limitation Guidelines

• Numerical effluent limits are problematic for stormwater flows. Numerical limits are based on low -flow situations within a receiving stream and continuous flows to the stream. High flow and high intensity rain events create conditions that do not match the conditions upon which the limits are based. These storm2015 EPA MSGP Response to Comments June 4, 2015

212 events are outside the control of the facility. Storm water, because of its variable flow, intensity, and

durati on, was never meant to have numerical limits. Instead stormwater discharges should be controlled

with non

- numeric effluent limits, such as BMPs.

Response The numeric effluent limits included in the MSGP were promulgated under separate Agency actions, an d

it is non

- discretionary that EPA include them in the MSGP for the discharges to which they apply.2015 EPA MSGP Response to Comments June 4, 2015

213 

### Issue Category: Section 2.2

– Water Quality

- Based Effluent Limits

Comment ID 0041.001.002 Issue Category: 2.2

Author Name: Jason Ulseth & Jessica Sterling WQ

- Based Effluent Limits

Organization: Chattahoochee Riverkeeper

Part 2.2

- We are pleased that the eNOI system will identify receiving waters and impairment status upon a facility's submittal of an NOI. The draft permit states that EPA's receipt of the NOI will trigger a more detailed screening process within the agenc y that will determine if the requirements are appropriate and if any additional, more stringent requirements are necessary. This process will hopefully improve compliance with the MSGP and will eventually be adopted by states administering industrial storm water permits.

Response EPA acknowledges the commenter’s support for the new electronic reporting tools.

Comment ID 0066.001.012 Issue Category: 2.2

Author Name: Timothy Carlstedt WQ

- Based Effluent Limits

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 2.2 Water Quality

- Based Effluent Limitations

As discussed above, the CWA requires that permits include certain technology

- based effluent limitations (which the permittees/dischargers then have to meet). When necessary to meet WQS, permits also must include any more stringent effluent limitations, the so- called WQBELs. See Clean Water Act § 301(b), 33 U.S.C. § 1311(b). It is important to note that the CWA speaks of what requirements a permit must include, not what requirements a permittee must meet. EPA's regulations echo this requirement and provide a dditional detail. They provide that permits must include WQBELs when necessary to achieve WQS. 40 C.F.R. § 122.44(d)(1). The WQBELs must control all pollutants or pollutant parameters that EPA determines are or may be discharged at a level that will cause or has the reasonable potential to cause or contribute to an excursion above any WQS. Id. In short, WQBELs are needed in an NPDES permit when the regulated discharge causes or contributes to an excursion above (i.e., an exceedance of) applicable WQS.

In the 2013 MSGP EPA pays only lip service to this process, saying simply that discharges must be controlled as necessary to meet WQS and asserting that that constitutes a WQBEL. See Part 2.2.1 and Fact Sheet at p. 29. [FN9] Even if EPA properly said that discharges had to be controlled as necessary to avoid causing or contributing to an exceedance of applicable WQS, it inappropriately puts the burden on the discharger to establish "controls as necessary" when the CWA placed the burden on the permit writer

to establish the appropriate controls (i.e., WQBELs). This, of course, leaves dischargers exposed to the risk that someone will allege his or her discharge is causing or contributing to a WQS exceedance.

UWAG respectfully requests, therefore, that EPA revis e the 2013 MSGP consistent with the CWA and its own regulations. The 2013 MSGP should provide that where EPA determines that a permittee's discharge is causing or contributing to an exceedance of an applicable WQS, EPA will develop WQBELs to control the discharge as necessary. Only if the permittee fails to meet the WQBEL would he or she be in violation of the permit.2015 EPA MSGP Response to Comments June 4, 2015

214 [FN9] UWAG disagrees that requiring dischargers to "control their discharge as necessary" constitutes a valid narrative WQBEL.

Response EPA maintains that the MSGP and its water quality

- based effluent limits are consistent with the CWA and its regulations. The permit contains a narrative water quality

- based effluent limit to ensure that discharges are controlled as necessary to meet appli cable water quality standards. EPA disagrees that the permit puts the burden on the discharger to establish “controls as necessary” to meet WQS. The permit explicitly states that “ EPA expects that compliance with the conditions in this permit will control discharges as necessary to meet applicable water quality standards .”

EPA cannot, as the commenter requested, impose additional water quality

- based effluent limits on MSGP permittees after the permit is issued. However, EPA may inform a facility of necessary additional control measures when water quality standards are not being met (i.e., EPA may notify an operator that additional stormwater control measures are necessary in order for the discharge from the facility to achieve WQS). A case needs to be made first that such a scenario exists, and EPA typically allows permittees to take corrective actions first, before imposing on the permittee the decision regarding which more stringent controls to impelement to meet the already established WQBELs. Typically, only when these avenues are exhausted would EPA resort to requiring that the permittee apply for an individual permit, which permit may contain specific numeric limits.

Comment ID 0073.001.005 Issue Category: 2.2

Author Name: Kelly Norton WQ

- Based Effluent Limits

Organization: Arizona Mining Association (AMA)

Water Quality Standard Provisions

Under the current 2008 MSGP (Part 2.2.1), a facility must take corrective action if a discharge causes or contributes to an exceedance of applicable water quality standards. EPA explained in the fact sheet to the

current 2008 MSGP (page 53) that this means that stormwater discharges must be controlled "as necessary to meet applicable water quality standards in the receiving waterbody" (emphasis added). This was an important clarification because water quality standards apply to receiving waters, not to discharges. In addition, this permit language and related fact sheet clarification were included in the 2008 MSGP in direct response to the settlement agreement in Federal Water Quality Coalition v. EPA, No. 01

- 1087 and consolidated cases (D.C. Cir.) concerning the 2000 MSGP.

Further, the governing standard for stormwater discharges should be that they not cause or contribute to exceedances of applicable water quality standards in receiving waters, not that the stormwater d ischarges themselves always meet every applicable standard. The CWA as well as EPA's permitting approach have long recognized that stormwater is different and harder to control than standard effluent, and have made allowances accordingly.

Notwithstanding the language in the 2008 MSGP and the prior settlement agreement, the draft MSGP uses language in Part 2.2.1 and other locations (see Parts 1.1.4.7, 1.1.4.8, and 4.1) requiring the control of stormwater discharges to "meet applicable water quality standar ds." This language is ambiguous

- it is not clear where compliance with this requirement is assessed or what it actually requires. Moreover, on page 29 of 76 of the draft fact sheet accompanying the draft MSGP, EPA states that the intent of the language

in Part 2.2.1 is to ensure that "control discharges as necessary to meet applicable water quality standards in the receiving water." This is a critically important clarification that should be clearly reflected in the2015 EPA MSGP Response to Comments June 4, 2015

215 draft permit, not just in the fact sheet

.

Accordingly, the phrase "meet applicable water quality standards" as used in the permit should be replaced with the phrase "not cause or contribute to an exceedance of applicable water quality standards in the receiving water." We recommend changing the phrase "meet applicable water quality standards" to "not cause or contribute to an exceedance of an applicable water quality standard in the receiving water" because the requirement to "meet" applicable water quality standards in the receiving water does not account for potential upstream impacts to water quality that have no relation to the permitted discharge of stormwater. Rather, the focus should be on the impact of the permitted discharge on the receiving water and whether the discharge causes or contributes to an exceedance of applicable water quality standards in the receiving water. This change is critical because it focuses on the actual impact of stormwater discharges on water quality in receiving waters versus a generic requirement to meet water quality standards even if the stormwater discharges have no impact on water quality in the receiving waters.

As noted above, the language in the draft MSGP (Part 2.2.1) has been changed to require a facility to take corrective action if a "discharge doe s not meet applicable water quality standards" (emphasis added). Consistent with the above discussion of the appropriate governing standard for stormwater discharges and compliance with applicable water quality standards, AMA respectfully requests that the language in Part 2.2.1 be changed as follows to clarify the intent of the language in Part 2.2.1 consistent with the draft fact sheet and the settlement agreement and appropriate governing standards referenced above.

Your discharge must be controlled as necessary to not cause or contribute to an exceedance ofmeet applicable water quality standards in the receiving waterbody.

EPA expects that compliance with the conditions in this permit will control discharges as necessary to meet applicable water quality standards in the receiving waterbody. If at any time you become aware, or EPA determines, that your discharge causes or contributes to an exceedance ofdoes not meet applicable water quality standards in the receiving waterbody, you must take corrective action as required in Part 4.1 and document the corrective actions as required in Part 4.3. You must also comply with any additional requirements that your state or tribe requires in Part 9.

EPA may also impose additional water quality

- based limitations on a site

- specific basis, or require you to obtain coverage under an individual permit, if information in your NOI, required reports, or from other sources indicates that your discharges are not controlled as necessary to not cause or contribute to an exceedance ofmeet applicable water quality standards in the receiving waterbody. You must implement all controls necessary to comply with a wasteload allocation in an EPA established or approved TM DL.

Because the phrase "meet applicable water quality standards" is used in other locations throughout the draft MSGP (see Parts 1.1.4.7, 1.1.4.8, and 4.1), the phrase should be appropriately modified by replacing "meet" with the words "cause or contribute to an exceedance of" and inserting the words "in the receiving waterbody" immediately after the phrase whenever it is used in the draft MSGP.

Response The 2015 MSGP now uses the following phrase in conjunction with “meet an applicable water quality

s tandard”: “(i.e., your discharges will not cause or contribute to an exceedance of a water quality standard)”. This addresses the commenter’s concern. WQS are set only for waters of the U.S., so the Agency does not continually explain this fact in permits for reasons of brevity. Nowhere does EPA state that WQS (which consist of criteria and designated uses among other things) apply directly to runoff. See also the mining comment response essay.2015 EPA MSGP Response to Comments June 4, 2015

216 Comment ID 0074.001.002 Issue Category: 2.2

Author Name: Bu rl Ackerman WQ

- Based Effluent Limits

Organization: J.R. Simplot Company

Part 2.2.1 Discharges to Water Quality

- Impaired Waters

You must also comply with any additional requirements that your state or tribe requires in Part 9.

Part 9 is not included in the draft permit and likely has not been developed. Since these additional requirements will be part of the MSGP, Simplot requests the opportunity review and comment on Part 9 when it is developed.

Response 401 certifications are only requested after the permit is proposed. As such, 401 certifications were not available to the Agency at the time the MSGP was proposed. State 401 certifications often go through notice and comment at the state level. In any event, EPA has no disc retion regarding whether to include such state 401 certifications in its final permits.

Comment ID 0075.001.005 Issue Category: 2.2

Author Name: Claudio Ternieden WQ

- Based Effluent Limits

Organization: Water Environment Federation (WEF)

6. Effluent Limit Clarifications

a. WEF is concerned that the language in Section 2.2.1 may cause confusion. Currently, the section reads

as follows:

"2.2.1 Water Quality Standards.

Your discharge must be controlled as necessary to meet applicable water quality standards.

EPA expects that compliance with the conditions in this permit will control discharges as necessary to meet applicable water quality standards. If at any time you become aware, or EPA determines, that your discharge does not meet applicable water quality standards, you must take corrective action as required in Part 4.1 and document the corrective actions as required in Part 4.3. You must also comply with any additional requirements that your state or tribe requires in Part 9.

EPA may also impose additional water quality

- based limitations on a site

- specific basis, or require you to obtain coverage under an individual permit, if information in your NOI, required reports, or from other sources indicates that your discharges are not controlled as necessary to meet applicable water quality standards. You must implement all controls necessary to comply with a wasteload allocation in an EPA established or approved TMDL."

WEF notes that this language may cause confusion, both on the part of permittees and regulatory authorities, since it may convey the impression that numeric water quality criteria would be applied as effluent limits to stormwater discharges at the point of discharge from the industrial site. Water quality standards (WQS) are meant to preserve designated uses of bodies of water. As defined by EPA, WQS are composed of designated uses, water quality criteria (WQC's) to protect those uses, and antidegradation policies. Water quality criteria are not meant to apply as effluent limits at the point of discharge.2015 EPA MSGP Response to Comments June 4, 2015

217 However, the way this section is worded may convey the impression that EPA's intent is that WQC's apply as effluent limits to stormwater discharges. In order to clarify the intent of the regulation, WEF

recommends that the section be revised to read as follows:

"Your discharge must be controlled as necessary to ensure receiving water bodies do not suffer violations of applicable water quality standards resulting from the discharge covered by the MSGP. (Note that

violatio ns of applicable WQS in a body of water may be due to other reasons that are not related to the discharge covered by the MSGP).

EPA expects that compliance with the conditions in this permit will control discharges as necessary to avoid violations of applicable water quality standards resulting from the regulated discharge. If, at any time you become aware, or EPA determines, that your discharge is causing violations to the applicable water quality standards, you must take corrective action as required in Part 4.1 and document the corrective actions as required in Part 4.3. You must also comply with any additional requirements that your state or tribe requires in Part 9."

Response EPA clarifies that the narrative effluent limit at Part 2.2.1 does not mean that “numeric water quality criteria would be applied as effluent limits to stormwater discharges at the point of discharge from the industrial site.” EPA has modified Part 2.2.1 to clarify that discharges “must not cause or contribute to an

exceedance of applicable water quality standards...” See response to Comment ID 0073.001.005.

Comment ID 0085.001.006 Issue Category: 2.2

Author Name: Zachary Griefen et al. WQ

- Based Effluent Limits

Organization: Conservation Law Foundation et al.

II. Water Quality Based Effluent Limits

A. Statutory Background on Water Quality Based Effluent Limits

The Clean Water Act requires each state to adopt Water Quality Standards ("WQSs") for all waters within

its boundaries and submit them to the U.S. En vironmental Protection Agency ("EPA") for approval. (33 U.S.C. §§ 1311(b)(1)(C), 1313.) WQSs include maximum permissible pollutant levels that must be sufficiently stringent to protect public health and enhance water quality, consistent with the uses for

w hich the water bodies have been designated. (33 U.S.C. § 1313(c)(2)(A).) WQSs provide the reference point "to prevent water quality from falling below acceptable levels." (PUD No. 1 of Jefferson County v. Washington Dep't of Ecology (1994) 511 U.S. 700, 70 4 [quotation omitted].) States also must identify as impaired any water bodies that fail to meet water quality standards. (33 U.S.C. § 1313(d).)

For impaired waters, states must establish TMDLs, which set a daily limit on the discharge of each pollutant necessary to achieve water quality standards. (Id. § 1313(d)(1).) The TMDL "assigns a waste load allocation (WLA) to each point source, which is that portion of the TMDL's total pollutant load, which is allocated to a point source for which a NPDES permit is required." (Communities for a Better Env't v. State Water Res. Control Bd. (2005) 132 Cal.App.4th 1313, 1321 (emphasis in original).) Critically, federal law requires that "once a TMDL is developed, effluent limitations in NPDES permits must be consistent with the WLA's in the TMDL." (Id., at 1322 (citing 40 C.F.R. § 122.44(d)(1)(vii)(B).) According to EPA, which overseas implementation of the CWA, "[w]here the TMDL includes WLAs for stormwater sources that provide numeric pollutant load . . . the WLA should, where feasible, be translated into numeric [water quality

- based effluent limitations] in the applicable stormwater permits." [FN48]2015 EPA MSGP Response to Comments June 4, 2015

218 NPDES permits must ensure that discharges of stormwater associated with industrial activity do not cause or contribute to a violation of water quality standards. See 33 U.S.C. § 1311(a); 1313; 1341(a); 1342(p). Renewal permits

- like the proposed MSGP, at issue

- may not contain weaker standards than those contained in the previous permit, except under limited circumstances. See 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(l). Federal and state law additionally require implementation of an antidegradation policy, that mandates that existing water quality in navigable waters be maintained unless degradation is justified by specifi c findings. (See, 40 C.F.R. § 131.12(a)(1).) Every NPDES permit must require the discharger to conduct monitoring sufficient to assure compliance with its permit limits. Id. § 122.44(i)(1) (every permit "shall include" monitoring "[t]o assure compliance wi th permit limitations"); see also 33 U.S.C. § 1342(a)(2) ("The Administrator shall prescribe conditions for such permits to assure compliance with the requirements" of the statute). This monitoring must be "representative" of the discharges being regulated : "All permits shall specify . . . [r]equired monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity." 40 C.F.R. § 122.48(b). "Samples and measurements taken for the purpose of monito ring shall be representative of the monitored activity." Id. § 122.41(j)(1), see also § 122.44(i)(5).

Finally, the CWA requires that NPDES Permits, Permit Applications, Notices of Intent ("NOI") to discharge pursuant to an NPDES Permit, or other document s that contain the substantive information about how a permittee will comply with effluent limitations of the Permit must be publically available, 33 USC §1342(j); and subject to public hearing and comment, before the Permit can be approved. [FN49]

B. EP A Has Not Completed the Reasonable Potential Analysis Needed to Establish Water Quality Based

Effluent Limits.

As noted above, NPDES permits must ensure that discharges of stormwater associated with industrial activity do not cause or contribute to a violation of water quality standards. See 33 U.S.C. § 1311(a); 1313; 1341(a); 1342(p). EPA regulations require EPA to ensure that every NPDES permit includes effluent limitations to control the discharge of all pollutants that have the "reasonable potential t o cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(1)(i).

To discharge this duty, EPA must decide whether the pollution generated at a facility has the "reasonable potential" to cause environmental harm by using "procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water." 40 C.F.R. § 122.44(d)( 1)(ii). A permit writer's determination based on these federally mandated procedures is commonly called a "reasonable potential analysis." Reasonable Potential Analysis ("RPA") is required in all NPDES Permits. See 40 CFR § 122.44(d)(1)(i). The RPA is a de fined, detailed process, and is required to be included in the Fact Sheet of the NPDES Permit. Id; See Also NPDES Permit Writers Manual, pp 6

- 12 to 6

- 23 (US EPA, Sept 2010).

The process of conducting a Reasonable Potential Analysis forces a permit writer to determine which pollutants likely are present in the discharge. But EPA did not conduct a reasonable potential analysis in developing this permit. As a consequence, the MSGP relies on an illogical set of parameters to gauge the performance of MSGP permittees. As the National Research Council explained,

EPA selected the benchmark analytical parameters for industry subsectors to monitor using data submitted by industrial groups in 1993 as part of their group applications. The industrial groups were

requ ired to sample a minimum of 10 percent of facilities within an industry group for pH, TSS, BOD5, oil and grease, COD, TKN, nitrate plus nitrite nitrogen, and total phosphorous. Each sampling facility within2015 EPA MSGP Response to Comments June 4, 2015

219 a group collected a minimum of one grab sample within the first 30 minutes of discharge and one flow

weighted composite sample. Other nonconventional pollutants such as fecal coliform bacteria, iron, and cobalt were analyzed only if the industry group expected it to be present. Similarly, toxic pollutant s such as lead, copper, and zinc were not sampled but rather self

- identified only if expected to be present in the stormwater discharge. As a result of the self

- directed nature of these exercises, the data submitted with the group applications were often i ncomplete, inconsistent, and not representative of the potential risk posed by the stormwater discharge to human health and aquatic life. EPA has not conducted or funded independent investigations and has relied solely on the data submitted by industry groups to determine which pollutant parameters are appropriate for the analytical monitoring of an industry subsector. Thus, there are glaring deficiencies; for example, the only benchmark parameter for asphalt paving and roofing materials is TSS, even though current science shows that the most harmful pollutants in stormwater discharges from the asphalt manufacturing industry are polycyclic aromatic hydrocarbons (compare Table

2- 5 with Mahler et al., 2005). [FN50]

To correct the "glaring deficiencies" criticized by the National Research Council, EPA should conduct a Reasonable Potential Analysis before issuing a final permit. EPA should begin with a complete review on a sector by sector basis of the different pollutants likely to be present in discharges of stormwater associated with industrial activity.

EPA must then revise the MSGP's monitoring requirements to require monitoring in each sector for all pollutants likely to be present and with reasonable potential to be discharged at high concentrations.

Co mmenters request that EPA add at least the following parameters to the MSGP's monitoring requirements:

•PAHs: Monitoring for PAHs at all industrial facilities that have applied pavement sealant (see below)

•Zinc: Monitoring at all industrial facilities , because of the prevalence of zinc in discharges from uncoated galvanized metal surfaces, including roofs;

•Iron: Monitoring at all industrial facilities because its widespread occurrence and high oxidation rate make it a very useful indicator of broader pollution concerns.

•BOD, COD, and Total Nitrogen: monitoring at all facilities in order to flag the possible release of a wide variety of pollutants that contribute to low dissolved oxygen, which is perhaps the most common impairment in the country. Additionally, these parameters are helpful in identifying illicit discharges to stormwater outfalls and discharges from improperly maintained septic systems.

•Mercury: monitoring at auto salvage yards because of the presence of mercury switches

•PCBs: m onitoring at scrap metal facilities because of the presence of scrapped equipment with a higher

likelihood of PCB contamination

•Volatile and Semi

- Volatile Organic Compounds: Monitoring at all industrial facilities, because of the prevalent use of VOC's and Semi

- VOCs including but not limited to acetone and toluene.

[FN48] Memorandum from James A. Hanlon and Denise Keehner, U.S. EPA, to Water Management Division Directors, Regions 1

- 10, re: Revisions to the November 22, 2002 Memorandum "Establishing

T otal Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs, November 12, 2010, ("EPA Hanlon Memo") at 3.

[FN49] 33 USC §1342(a)(l); See also Environmental Defence Center v. EPA, 3 44 F.3d 832; 854

- 856 (9th2015 EPA MSGP Response to Comments June 4, 2015

220 Cir. 2003) (programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the l evel required by the Clean Water Act); see also Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 498

- 504 (2d Cir. 2005) (failing to provide for permitting authority review and public participation of effluent limitations developed by permitted dischargers is a violation of the Clean Water Act).

[FN50] USM at 281 -282.

Response Regarding EPA’s reasonable potential analysis, see response to comment 0066.001.004 (Response to Comments document for Part 1). Regarding the MSGP’s benchmark monitoring requirements, see the monitoring response to comment essay. See also the Fact Sheet.

Comment ID 0085.001.008 Issue Category: 2.2

Author Name: Zachary Griefen et al. WQ

- Based Effluent Limits

Organization: Conservation Law Foundation et al.

D. EPA's Deferral of Reasonable Potential Analysis and Development of Water Quality Based Effluent Limitations Until After Issuance of the Permit Violates the Public Participation Requirements of the Act.

Section 2.2 of the proposed MSGP sets out the Water Quality Based Effluent Limitations for industrial storm water discharges. Section 2.2.2.1 provides that where a permittee discharges to an impaired water with a TMDL in place, EPA will determine at some time in the future whether additional effluent

lim itations are required to be consistent with the Waste Load Allocation or the TMDL. Section 2.2.2.2 requires compliance with existing Water Quality Standards for discharges to impaired waters without

TMDLs.

The proposed MSGP Fact Sheet explains that upon submission of an NOI, EPA will evaluate the facility and the receiving water(s), and determine whether additional WQBELs will be required to be consistent with a WLA, where it exists, or to comply with applicable WQS. Neither the proposed MSGP, nor the

Fac t Sheet, describe: 1) the data that would be considered (would it consist of past sampling results, future annual grab samples, MS4 sampling, receiving water samples, upstream sampling, or something else?); 2) what the analysis would consist of (simple comparison of end of pipe sampling to WQSs, modeling, or something else?); 3) the timing of the analysis and any resulting additional WQBELs; or 4)

how a determination of the effectiveness of the additional measures would be conducted.

The analysis which EP A proposes to potentially conduct some time in the future, on a site by site basis, is in fact the Reasonable Potential Analysis required in all NPDES Permits. See 40 CFR § 122.44(d)(1)(i). The RPA is a defined, detailed process, and is required to be included in the Fact Sheet of the NPDES Permit. Id; See Also NPDES Permit Writers Manual, p 6

- 23 (US EPA, Sept 2010). The additional measures to ensure compliance with TMDL WLA and/or WQSs which EPA may (or may not) impose would represent the actual meat of th e permit requirements for dischargers to impaired waters

- and yet those measures, or even how those measures might be developed, are nowhere articulated in the proposed MSGP. Further, any additional monitoring to evaluate compliance via these measures is al so left to the

indeterminate future.

These proposed provisions therefore leave the RPA analysis, the WQBELs, and the monitoring program, for at a minimum all industrial storm water dischargers to impaired waters, entirely to the discretion of EPA, with no deadline for completion, no public input, and no hearing process. This deferral of required2015 EPA MSGP Response to Comments June 4, 2015

221 elements of this NPDES permit, delegation to staff, and elimination of public process, are clearly inconsistent with the requirements of the Act. See 33 USC §1342(a)(l); Environmental Defense Center v. EPA, 344 F.3d at 856.

Response Regarding EPA’s reasonable potential analysis, see response to comment 0066.001.004 (Response to Comments document for Part 1). EPA adds that it will not be conducting additional rea sonable potential analyses after the permit is issued, nor will it will not add water quality

- based effluent limits to the permit after the permit is issued. Therefore, the limits applicable to dischargers under the MSGP have gone through the public input and review process. EPA may inform certain operators that additional stormwater controls are necessary to ensure that their discharges meet the permit’s already -established water quality

- based effluent limit, which has been through public comment. That doe s not mean that EPA is adding a WQBEL after permit issuance, rather it means that EPA may tell the permittee that more must be done for it to comply with the already

- established permit limits. EPA could do so in the context of an enforcement action, or in advance of an enforcement action (i.e., as part of a corrective action in hopes of avoiding having to take an enforcement action). See also the Fact Sheet.

Comment ID 0085.001.012 Issue Category: 2.2

Author Name: Zachary Griefen et al. WQ

- Based Effluent Limits

Organization: Conservation Law Foundation et al.

E. EPA should clarify that permitted discharges under the MSGP must be in attainment with ambient water quality standards

Because of long

- standing confusion by permittees, EPA should clarify that Part 2.2 of the MSGP requires the concentrations and mass of pollutants in permitted discharges to be restricted at or below the water quality criteria applicable to the receiving water body. On its face, the language of the MSGP seems to make this clear. The MSGP states that permittees must "control discharges as necessary to meet applicable water quality standards."[FN51] This statement has only one subject -"discharges"-which

should make it clear that it is the discharges themselves that must meet applicable water quality standards. And the Fact Sheet elaborates that "[i]f the permittee becomes aware, or EPA determines, that the discharge does not meet applicable water quality standa rds, corrective actions are required."[FN52] Finally, the permit states that corrective action is required if "control measures are not stringent enough for the discharge to meet applicable water quality standards . . . ."[FN53] Nonetheless, both experienc e and the record developed for this permit show that permittees do not accept that their discharges must meet water quality standards at the point of discharge and, in practice, routinely discharge stormwater that exceeds applicable water quality standards but fail to take corrective action.

The MSGP is also confusing in this respect because it states that benchmark exceedances are not violations of the permit and allows permittees who have exceeded benchmarks to conclude that "no further pollutant reductions . . . are necessary to meet the water -quality- based effluent limitations. . . ."[FN54] Yet in most cases, the benchmarks that permittees violate are equivalent to or many times higher than the applicable state water quality standards. For example, EPA 's national recommended water quality criteria are the basis for most state numeric water quality criteria. The national recommended water quality criterion for iron is 1.0 milligram/Liter (mg/L) and the salt water criterion for zinc is 81 micrograms/Liter (ug/L), or 0.081 mg/L, for chronic exposure. In comparison, the iron benchmark applicable to most sectors of the MSGP is 1.0 mg/L and the saltwater benchmark for zinc is 0.09 mg/L. [FN55] In many jurisdictions, if a covered discharge exceeds the benchmark s in the MSGP then the discharge is also in excess of the applicable water quality standards and therefore, by definition, is not controlled "as necessary to meet applicable water quality standards."[FN56]2015 EPA MSGP Response to Comments June 4, 2015

222 Commenters request that EPA please clarify in Pa rt 2.2 of the Permit that discharges permitted under the MSGP must be controlled such that the concentrations and mass of pollutants in the permitted discharge are at or below the water quality criteria applicable to the receiving water body.

[FN51] MSGP at 17 (Part 2.2.1).

[FN52] Fact Sheet at 30.

[FN53] MSGP at 23 (Part 4.1) (emphasis added).

[FN54] MSGP at 35 (Part 6.2.1.2).

[FN55] See generally MSGP Part 8.

[FN56] MSGP at 17 (Part 2.2.1).

Response EPA clarifies that its intent was not that stormwater discharges themselves must meet water quality standards, but rather that stormwater discharges must not cause or contribute to an exceedance of WQS in the receiving water. EPA has clarified this in the final 2015 MSGP. See response to comment

0066.001.004 and 0075.001.005. EPA further clarifies that benchmark concentrations are not enforceable limitations because a discharge above the benchmark level simply may not cause or contribute to an

exceedance of a water quality standard. Therefore, discharges are not in violation of the permit’s WQBELs if they are above criteria/benchmarks without any additional evidence demonstrating that such discharges cause or contribute to an exceedance of WQS in the receivi ng water.

Comment ID 0085.001.046 Issue Category: 2.2

Author Name: Zachary Griefen et al. WQ

- Based Effluent Limits

Organization: Conservation Law Foundation et al.

16. Clarify in Part 2.2 of the Permit that discharges permitted under the MSGP must be controlled such that the concentrations and mass of pollutants in the permitted discharge are at or below the water quality criteria applicable to the receiving water bo dy.

Response See response to comment 0085.001.012.

Comment ID 0086.001.011 Issue Category: 2.2

Author Name: Daniel Graham WQ

- Based Effluent Limits

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

Part 2.2.1: Without explanation, EPA changed the phrase "causes or contributes to an exceedance of applicable water quality standards" to "does not meet applicable water quality standards." EPA should retain the language from the 2008 MSGP, as that more accurately tracks the language in EPA's NDPES regulations. The proposed language does not appropriately account for assimilative capacity or mixing

zones.2015 EPA MSGP Response to Comments June 4, 2015

223 Response See response to comment 0075.001.005. See also the Fact Sheet.

Comment ID 0087.001.011 Issue Category: 2.2

Author Name: Kathleen Martin WQ

- Based Effluent Limits

Organization: Alcoa Inc.

Section 2.2 Water Quality

- Based Effluent Limitations

• The discussion in this section about EPA imposing additional water quality

- based limitations on a site

specific basis is concerning. Specifically in Section 2.2.1 Water Quality Standards, there can be problems with this because a point source discharger may be controlling its discharges but non

- point sources in the same area may be impacting the receiving stream leading to water quality

- impaired waters.

Response The Clean Water Act does not authorize EPA to directly regulate non

- point sources. Part 2.2.1 only applies to discharges authorized under the MSGP, and does not apply to non

- point source discharges to the receiving stream. See the Fact Sheet and related responses to comments for further explanation of the WQBELs in the permit.

Comment ID 0092. 001.003 Issue Category: 2.2

Author Name: Jeffrey Longsworth WQ

- Based Effluent Limits

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Regarding EPA's proposed water quality

- based effluent limitations, the MSGP should clarify that water quality standards can only be applied "in the receiving stream" (not at the point of discharge when that discharge is not directly into the receiving stream), which is the only way EPA can maintain consistency

with the scientific bases for such standards.

Response See response to comment 0066.001.004 (Response to Comment document, Part 1).

Comment ID 0092.001.026 Issue Category: 2.2

Author Name: Jeffre y Longsworth WQ

- Based Effluent Limits

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 2.2 (Water Quality

- Based Effluent Limitations): Applying water quality

- based effluent limitations (WQBELs) to potential permittees via a general permitting scheme is a significant challenge, which EPA recognizes and for which EPA has worked to deve lop an appropriate methodology in each new iteration of its MSGP. FSWA supports EPA's conclusion that compliance with non

- numeric effluent limits should provide compliance with WQBELs, including practical requirements for assessing potential impacts on imp aired waters (either with or without existing TMDLs). In sum, if a facility follows EPA's procedures set forth in Section 2.2 and does not hear from the Agency that additional requirements are necessary, it must be considered to be in full compliance with WQS.

However, if a facility must independently prove that its industrial stormwater discharges comply with2015 EPA MSGP Response to Comments June 4, 2015

224 WQS, EPA must continue to reiterate the standard it sets forth in its Fact Sheet (at 29) that applicable WQS determinations must be made "in the receiving waterbody" and not at the point of discharge from the industrial site, assuming those two points are not the same. In its subsequent Fact Sheet discussions, EPA describes how permittees can ensure that their discharges meet WQS, and EPA should make clear that it is not applying WQS directly to a facility's discharge that is not directly into the receiving waterbody. WQS were not designed to be applied anywhere other than in the receiving stream and there is no scientific or legal justification for applying such standards to discharges that may occur significant distances from a receiving stream.

FSWA supports EPA's determination that anti

- degradation considerations only apply to existing dischargers that undergo significant change, qualifying the facility as a "new source," or that significantly changes the nature and significantly increases the pollutant loads from the facility. See Fact Sheet Note 1 at 31 and Permit Section 7.7.[FN3]

[FN3] EPA reference in Fact Sheet Note 1 should be corrected t o reference Section 7.7, not 7.4

Response See response to comment 0066.001.004 (Response to Comment document, Part 1).

Comment ID 0093.001.018 Issue Category: 2.2

Author Name: Amanda Aspatore WQ

- Based Effluent Limits

Organization: National Mining Association (NMA)

II. Part 2

- Control Measures and Effluent Limits

Part 2.2.1: Without explanation, EPA changed the phrase "causes or contributes to an exceedance of applicable water quality standards" to "does not meet applicable water quality standards." As noted above, this revision is not appropriate. EPA should retain the language from the 2008 MSGP, as that accurately tracks the language in EPA's NDPES regulations. As noted, the proposed language also does not appropriately account for assimilative capacity or mixing zones.

Response See response to comment 0075.001.005. See also the Fact Sheet.

Comment ID 0094.001.013 Issue Category: 2.2

Author Name: Eric Fry WQ

- Based Effluent Limits

Organization: Peabody Energy

10) 2.2.1 Water Quality Standards (and all other sections where the phrase "cause or contributes to an exceedance of' is struck through (e.g., 1.1.4.7)). The trigger for corrective action and additional requirements in Section 2.2.1 and other sections of the permit has changed from "your discharge causes or contributes to an exceedance of applicable water quality standards" to "your discharge does not meet applicable water quality standards." This proposed language change implies that discharges have to mee t water quality standards at the point of discharge. Particularly in the case of stormwater discharges, this is an inappropriate test. EPA must revert to the language of the 2008 MSGP in any portion of the draft MSGP where this change in permit language is proposed.

Response See response to comment 0075.001.005. See also the Fact Sheet.2015 EPA MSGP Response to Comments June 4, 2015

225 

### Issue Category: Section 2.2.2 - Discharges to WQ -Impaired Waters

Comment ID 0021.001.004 Issue Category: 2.2.2

Author Name: Lee Epstein Discharges to WQ

- Impaired Wat ers
Organization: Chesapeake Bay Foundation

Part 2.2.2

- With regard to discharges to impaired waters, the regulation should require a full permit term

of semi

- annual monitoring of pollutants, in order to "ground

- truth" calculated Waste Load Allocations (WLA) against runoff for consistency with TMDL s, leading into the next permit cycle. Pollutant loading from certain industrial sites can include the very pollutants which are of paramount concern in the Chesapeake Bay watershed: nutrients from fertilizer handling, or sediment from solid waste manageme nt or concrete/cement mixing facilities, for example

- which facilities are located in the District of Columbia. Obtaining such data from several years of semi

- annual monitoring will assist the permittee and EPA in determining whether the permittee's contr ol measures are adequate, and whether any adjustment in the facility's calculated waste load will be necessary for the next permit cycle.

Response EPA will inform permittees of their monitoring responsibilities when there is an applicable TMDL, and

thes e requirements will be based on EPA’s examination of the applicable TMDL and wasteload allocation. EPA agrees that such monitoring would provide a useful tool to assess progress in meeting the goals of the TMDL.

Comment ID 0041.001.003 Issue Category: 2 .2.2

Author Name: Jason Ulseth & Jessica Sterling Discharges to WQ

- Impaired Waters

Organization: Chattahoochee Riverkeeper

Part 2.2.2.2

- It is our interpretation that a discharge into an impaired water occurs anywhere within the impaired waterway's watershed. During the stakeholder negotiation in 2006 for the Georgia Permit, some regulated entities took the interpretation that the discharge had to physically drain directly into the impaired waterway. In Georgia, parties came to an agreement that any discharge within 1

- linear mile and upstream of the impaired waterway would constitute a discharge into an impaired water. We reco mmend that EPA incorporate a similar approach in the 2013 MSGP.

Response EPA appreciates the comment and has done something similar (potentially broader or narrower depending on fate and transport of pollutants in stormwater discharge) in the 2015 MSGP. EPA defines the term “discharge point” as the point where the discharge leaves the facility, but it could include any other point up to where the discharge passes through an outfall directly into a receiving water. Therefore, if the receiving water is impaired, then the discharge is to an impaired water. From Part 2 of the 2015 MSGP: “You are considered to discharge to an impaired water if the first water of the U.S. to which you discharge is identified by a state, tribe or EPA as not meeting an applicable water quality standard.” EPA

also notes in the Fact Sheet: “ Where EPA has reason to believe that permitted facilities have the potential to cause or contribute to an impairment in a downstream water, i.e., a water quality standards exceedance, notwithstan ding any indication in permittees’ NOIs that they do not discharge to an impaired water, EPA may require them to perform additional monitoring and/or adopt additional control measures to address the potential contribution to the impairment, i.e., to ensure that the discharge is controlled as necessary to meet water quality standards. In these instances, EPA will notify permittees, in writing, of any additional obligations, including monitoring requirements, to meet such water quality

- based effluent

limit. ”2015 EPA MSGP Response to Comments June 4, 2015

226 Comment ID 0066.001.013 Issue Category: 2.2.2

Author Name: Timothy Carlstedt Discharges to WQ

- Impaired Waters

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 2.2.2.1 Existing Discharge to an Impaired Water with an EPA

- Approved or Established TMDL

The 2013 MSGP provides that if an existing discharge is to an impaired waterbody with an approved TMDL, EPA will let the discharger know if any additional limits or controls are necessary to be consistent with the assumptions of available WLAs in the TMDL. See also Part 6.2.4.2. The Fact Sheet explains that "[b]ecause WLAs for stormwater discharges may be specified in many different formats, EPA believes that it has not always been clear to permittees in the past what they need to do to comply with applicable WLAs. EPA has thus established a new process to ensure that these requirements are properly interpreted and communicated to the permittee in a way that can be implemented." Fact Sheet at p. 31.

UWAG agrees that implementation of TMDLs has been and continues often to be problematic. TMDLs at times have been developed with little apparent consideration given to the complexities involved in implementation. UWAG , therefore, is encouraged that EPA apparently has established a new implementation process (recognizing of course that the states, not EPA, have authority over actual implementation). However, the 2013 MSGP does not indicate what the new process is, sayin g only that EPA will let the discharger know what they need to do to comply with the TMDL. UWAG submits that until such time as the TMDL implementation process is addressed through appropriate rulemaking or guidance, existing discharges to impaired waterbo dies with approved TMDLs should be deemed in compliance with applicable WLAs if they are otherwise in compliance with the 2013 MSGP.

UWAG also notes what appears to be a typo in the last line of Part 2.2.2.1: there is no Part 1.5.1;

individual and altern ative permits are addressed in Part 1.2.3.

Part 2.2.2.2 Existing Discharge to an Impaired Water without an EPA

- Approved or Established TMDL

The 2013 MSGP says that this provision applies in situations where EPA determines that a discharge is

not contro lled as necessary to meet WQS in a downstream water segment, even if the discharge is to a receiving water not listed as an impaired waterbody. This statement contradicts statements made elsewhere in the permit that a project will be considered to discharge to an impaired waterbody if the first water of the U.S. to which a permittee discharges (i.e., the receiving water) is a 303(d) listed water body. See, e.g., Parts 1.1.4.8 and 2.2.2. See also Part 6.2.4.1 ("For the purposes of this permit, a permittee

di scharges to an impaired water if the discharge flows directly to the impaired water.")

UWAG requests that EPA revise Part 2.2.2.2 to clarify, consistent with the rest of the 2013 MSGP, that it applies only where the receiving water is listed as impaired, not when a downstream water segment is impaired.

Response It is appropriate for EPA to interpret TMDL language for its permittees. Simple compliance with the permit may be deemed sufficient for meeting a TMDL (owing to non

- specificity in WLAs, not addr essing SW as a source, etc.), but it may not be. Therefore, EPA has included language that the Agency will inform permittees exactly how to comply with the permit limits to comply with any EPA

- established or

EPA- approved TMDL.2015 EPA MSGP Response to Comments June 4, 2015

227 Generally speaking, Part 2.2 .2.2 applies to receiving waterbodies identified as impaired. Recognizing, however, the possibility that permitted discharges could cause or contribute to an impairment in a downstream water, EPA may inform the permittee that additional stormwater controls are needed in order for its discharge to be controlled as necessary to meet water quality standards, as required in the MSGP.

Comment ID 0071.001.007 Issue Category: 2.2.2

Author Name: Robert Barnes Discharges to WQ

- Impaired Waters

Organization: Midas Gold Inc. (MGI)

6. Existing Discharge to Impaired Water without a TMDL

This provision should not apply where the operator is discharging to a water segment not specifically identified on a Section 303(d) list. A party should not be required to meet additional TMDL monitoring provisions where the receiving water is not impaire d. This provision is inconsistent with the definition of "discharge to impaired water".

Response See response to comment 0066.001.013.

Comment ID 0074.001.003 Issue Category: 2.2.2

Author Name: Burl Ackerman Discharges to WQ

- Impaired Waters

Organization: J.R. Simplot Company

Part 2.2.2 Discharges to Water Quality

- Impaired Waters.

Simplot requests that EPA identify that if "the first water of the U.S. discharge to" is a tributary or drainage that is not impaired but the tributary flows into an impaired water then "the first water of the U.S. discharged to" is still unimpaired.

Re sponse Generally speaking, discharges to an unimpaired tributary are considered discharges to unimpaired waters, even if the water flows into an impaired water. Recognizing, however, the possibility that the discharge could cause or contribute to an impairment in a downstream impaired water, EPA may inform the permittee that additional stormwater controls are needed in order for its discharge to be controlled as necessary to meet water quality standards, as required in the MSGP.

Comment ID 0085.001.011 Iss ue Category: 2.2.2

Author Name: Zachary Griefen et al. Discharges to WQ

- Impaired Waters

Organization: Conservation Law Foundation et al.

Specifically, the Commenters note that the following provisions of the proposed MSGP grant an impermissible degree of discretion to EPA:

4. 2.2.2.1 Existing Discharge to an Impaired Water with an EPA

- Approved or Established TMDL. If you discharge to an impaired water with an EPA approved or established TMDL, EPA will inform you if any additional limits or controls are necessary for your discharge to be consistent with the assumptions of any available wasteload allocation in the TMDL, or if coverage unde r an individual permit is necessary in2015 EPA MSGP Response to Comments June 4, 2015

228 accordance with Part 1.5.1.

Response EPA needs further clarification about to understand how this provision grants an impermissible degree of discretion to the Agency.

Comment ID 0085.001.045 Issue Category: 2.2. 2

Author Name: Zachary Griefen et al. Discharges to WQ

- Impaired Waters

Organization: Conservation Law Foundation et al.

15. Set out deadline for completion, opportunity for public input, and hearing process for the Reasonable Potential Analysis and modify the following sections of the proposed MSGP to cure the impermissible degree of discretion to EPA:

d. 2.2.2.1 Existi ng Discharge to an Impaired Water with an EPA

- Approved or Established TMDL. If you discharge to an impaired water with an EPA approved or established TMDL, EPA will inform you if any additional limits or controls are necessary for your discharge to be consistent with the assumptions of any available wasteload allocation in the TMDL, or if coverage under an individual permit is necessary in

accordance with Part 1.5.1.

Response EPA needs further clarification to understand how this provision grants an impe rmissible degree of discretion to the Agency.

Comment ID 0088.001.003 Issue Category: 2.2.2

Author Name: Justin Hayes Discharges to WQ

- Impaired Waters

Organization: Idaho Conservation League

Numerous waters in Idaho are also listed on our State's 303(d) list for failing to meet various water quality standards. In instances were discharges seek to discharge pursuant to the MSGP, it would be inappropriate for the EPA to authorize dischargers to discharge pollutants for which a waterbody is failing to meet the water quality criteria for that pollutant. In many (if not most) instances, these dischargers would not have been assigned wasteload allocations in the TMDLs that have been developed to rest ore these waterways. And absent a wasteload allocation, a discharger may not discharge into the receiving water. For those waterways that do not yet have approved TMDLs, it would be inappropriate for EPA to authorize a new or ongoing discharge that contrib utes to an exceedance of water quality standards.

Response The MSGP includes provisions that will ensure discharges authorized and in compliance with the permit will meet water quality standards, i.e., not cause or contribute to an exceedance of WQS in the receiving waters. See Parts 1.1.4.7, 1.1.4.8, 1.1.4.9, and 2.2. See also the Fact Sheet.2015 EPA MSGP Response to Comments June 4, 2015

229 

### Issue Category: Section 2.2.3 - Tier 2 Antideg requirements

Comment ID 0037.001.003 Issue Category: 2.2.3

Author Name: Michael McIntyre Tier 2 Antideg requirements

Organization: Idaho Department of Environmental Quality

Page 18 2.2.3 Tier 2 Antidegradation Requirements for New or Increased Dischargers. The title of this section should say "Discharges", not "Dischargers".

EPA supplies no information to support the assumption that new or increased discharges, subject to stormwater control requirements of the permit, will not lower water quality in high quality waters. Under Idaho's Water Quality Standards, degradation is determined by whether there is a calculated change in concentration of pollutants in the receiving water, taking into account appropriate mixing under critical conditions. In general, in order to prevent degradation, the stormwater control requirements of the permit will have to prevent any increase in the concentration of pollutants in the receiving high quality water. DEQ believes it may be difficult for new dischargers to show there will be no lowering of water quality and thus to establish eligibility for coverage under the permit. States should be involved in determining eligibility for such dischargers. In addition, states must be involved in determining whether an existing discharger who plans to increase its discharge will meet Tier 2 requirements.

Se veral effluent limits in the proposed permit including pH, zinc and chromium do not comply with Idaho WQS. It is unclear how EPA developed end -of- pipe limits for all of the pollutants included in Part 8 of the permit (this is discussed in greater detail in ensuing comments). Without granting a mixing zone, how can DEQ ensure that WQS will be met in -stream?

Response

EPA has revised the title as follows: “ Tier 2 Antidegradation Requirements for New Dischargers, New Sources, or Increased Discharges .”

Regar ding the comments on high quality waters, see response to comment 0066.001.004. EPA maintains that compliance with the permit will result in discharges that meet water quality standards. EPA adds that the state, Idaho in this case, may add additional requirements deemed necessary to protect the quality of waters of the State as part of its 401 certification, which requirements will be listed in Part 9 of the permit. See also the Monitoring Response to Comment Essay (re benchmark concentrations at or above Idaho’s WQS).

Comment ID 0073.001.009 Issue Category: 2.2.3

Author Name: Kelly Norton Tier 2 Antideg requirements

Organization: Arizona Mining Association (AMA)

Parts 1.1.4.9 & 2.2.3: AMA respectfully requests that the new antidegradation provisions applicable to "new dischargers" or increased discharges to Tier 2 or Tier 2.5 waters be removed from the draft MSGP. EPA has always clarified that antidegradation policies are an essential part of each state's surface water quality standards and are therefore adopted on a state

- bystate basis. However, the provisions in Parts 1.1.4.9 and 2.2.3 attempt to define what EPA believes are the appropriate antidegradation policies for

each ind ividual state and how they should be applied through the MSGP. Compliance with state antidegradation policies, which are part of each state's surface water quality standards, already is addressed under other parts of the MSGP (see, for example, Part 2.2.1) . This confusing language should2015 EPA MSGP Response to Comments June 4, 2015

230 be removed and antidegradation standards or policies should be considered and appropriate provisions added if considered necessary through the state and tribal 401 certifications of the draft MSGP.

Response While antideg radation is a state responsibility vis -à- vis water quality standards, it is EPA’s responsibility as the NPDES permitting authority to put into place permit language that ensures applicable antidegradation requirements are met. When a new discharger or new source will discharge such that the Tier 2/2.5 water quality is lowered (or an operator cannot guarantee its discharges will not do so), EPA has deemed the MSGP is not the appropriate permit (because it would involve site

- specific analysis and

decision-mak ing regarding the importance of social or economic development in the area in which the waters are located). In such a case, the operator must obtain coverage under an individual or alternative permit.2015 EPA MSGP Response to Comments June 4, 2015

231 

### Issue Category: Section 3.0

- Inspections

- General

Comment ID 0033.001.002 Issue Category: 3.0

Author Name: Eileen Sottile Inspections

- General

Organization: LKQ Corporation

Reduced requirements for inspections (i.e., facilities no longer have to conduct a separate comprehensive site inspection). LKQ GAD supports this proposal.

Response EPA acknowledges the commenter’s support for eliminating the comprehensive site inspection requirement. EPA notes that the comprehensive site inspection is not a requirement in the final permit.

Comment ID 0087.001.012 Issue Category: 3.0

Author Name: Kathleen Martin Inspections

- General

Organization: Alcoa Inc.

Section 3 Inspections •Alcoa supports the inclusion of a visual inspection program, but believes that the language regarding frequency and scope of routine inspections is overly prescriptive and should be changed to indicate that inspection frequency and scope be defined by the SWPPP based on a case -by- case evaluation rather than a "one size fits all" approach.

Response EPA disagrees that the visual assessment requirements are overly prescriptive in the MSGP. Regular visual assessments are an inexpensive and valuable method for catching potential problems that could result in discharges that exceed water quality standards. EPA encourages all facilities, especially facilities with significant activities and materials exposed to stormwater, to consider conducting more frequent

v isual assessments.

For sectors not subject to analytical monitoring, visual assessments are especially critical because they may provide the only opportunity for permittees to assess the quality of stormwater discharges. For sectors subject to analytical monitoring, visual assessments allow permittees to identify issues that may not be identified by the required monitoring parameters, and to compare visual observations with laboratory results.

EPA notes that the MSGP contains exceptions that will reduce burdens associated with visual assessments for some facilities. Visual assessments can be distributed in other quarters for facilities facing adverse weather conditions or irregular stormwater runoff. Visual assessments do not apply for facilities

that are inactive, unstaffed, and where no industrial materials or activities are exposed to stormwater (except for Sectors G, H, and J, which are not required to meet the “no exposure” standard). In addition, EPA notes that the visual assessment can be conducted concurrently with other analytic monitoring requirements to reduce the permittee’s burden in terms of field activities.

Comment ID 0089.001.015 Issue Category: 3.0

Author Name: Kerry Kelly and Chuck White Inspections

- General

Organization: Waste Management (WM)2015 EPA MSGP Response to Comments June 4, 2015

232 Inspections

The comprehensive site inspection procedures and routine facility inspection procedures in the 2008 MSGP were essentially the same but with different documentation requirements. The proposed MSGP would combine these two inspection requirements into a single inspection mandate to eliminate redundancies. WM supports the combining of these two separate similar reports into a single document.

Response See response to comment 0033.001.002.

Comment ID 0092.001.027 Issue Category: 3.0

Author Name: Jeffrey Lo ngsworth Inspections

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 3 - Inspections

FSWA supports EPA's visual inspection requirements contained in Part 3. FSWA has always supported a thorough and comprehensive inspection program and believe that such inspections are the primary source for assessing the site's stormwater pollution control program. In addition, FSWA has supported enhanced inspections in lieu of benchmark monitoring as a far more effective and logical compliance check. As discussed in comments on EPA's benchmark requirements (see below), benchmark monitoring is inefficient, wasteful, and unjustified as a compliance tool.

Response EPA acknowledges the commenter’s support for the visual inspection requirements. Regarding benchmark monitoring, see the monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

233 

### Issue Category: Section 3.1 - Routi ne Inspections

Comment ID 0021.001.005 Issue Category: 3.1

Author Name: Lee Epstein Routine Inspections

Organization: Chesapeake Bay Foundation

Part 3.1

- The 2013 draft gainfully contains more detail concerning routine inspections of facilities. On the other hand, the section should state that all discharge points must be inspected, with exceptions as noted. Unlike municipal permits which cover sometimes hundreds or thousands of outfalls, industrial sites are likely to, have substantially fewer, and these can readily and regularly all be inspected.

Response EPA acknowledges the commenter’s support for the permit’s requirements for routine inspections. EPA

notes that the MSGP does require that all discharge points be inspected during a routine facility inspection required under Part 3.1.

Comment ID 0034.001. 001 Issue Category: 3.1

Author Name: Steven Black Routine Inspections

Organization: U.S. Department of Energy

1. Paragraph 3.1, second paragraph, last sentence

- Regarding routine facility inspections, this sentence states "At least one of your routine inspections must be conducted during a period when a stormwater discharge is occurring". This should clarify if t his means at least one of your routine inspections per year must be conducted during a period when a stormwater discharge is occurring.

Response EPA has addressed this comment by modifying Part 3.1 to read as follows: “At least once each calendar

year, the routine inspection must be conducted during a period when a stormwater discharge is occurring.”

Comment ID 0042.001.004 Issue Category: 3.1

Author Name: Joshua Rodriguez Routine Inspections

Organization: District Department of the Environment
Part 3.1 Routine Facility Inspections

DDOE agrees and supports the reduction in inspection frequency, by allowing a comprehensive site inspection to be conducted during the course of a quarterly inspection, easing the burden on facility operators. DDOE believes this revision should not adverse ly affect a site's ability to determine their SWPPP's effectiveness in reducing pollutant migration. DDOE agrees and supports the additional emphasis and clarification that inspections can be required monthly, and quarterly inspections are not always appro priate, especially in regards to deicing and will prevent confusion with applicants.

Response See response to comment 0033.001.002.

Comment ID 0070.001.001 Issue Category: 3.1

Author Name: Beth Goodnough Routine Inspections2015 EPA MSGP Response to Comments June 4, 2015

234 Organization: Western Fuels Association Inc.

A. Frequency of Inspections: We are very concerned about the frequency and confusing schedule for inspections. Below is our understanding of how this would work at a typical coal mine:

1. Part 3.1 will require inspections at least quarterly, with one inspection conducted during a period when a stormwater discharge is occurring.

Response The commenter’s understanding that Part 3.1 requires inspections to be conducted quarterly at a

min imum, with one inspection conducted during a period when a stormwater discharge is occurring, is correct. EPA clarifies that each calendar year, the routine inspection must be conducted during a period when a stormwater discharge is occurring.

Comment ID 0070.001.008 Issue Category: 3.1

Author Name: Beth Goodnough Routine Inspections

Organization: Western Fuels Association Inc.

Part 3.1 (page 19 of the Proposed 2013 MSGP) states "Tracking or blowing of raw, final or waste materials from areas of no exposure to exposed areas." Is this reversed?

Response No, this permit language is consistent with the Agency’s intent, which is to ensure that the inspection include an examination for any raw, final, or waste materials tracked onto areas of the site that are exposed to stormwater, because this occurrence could result in a discharge of pollutants in stormwater.

Comment ID 0073.001.014 Issue Category: 3.1

Author Name: Kelly Norton Routine Inspections

Organization: Arizona Mining Association (AMA)

Part 3.1: The requirement to conduct a facility inspection at least once during a period when a stormwater discharge is occurring is inappropriate for mining facilities in the arid southwest. In Arizona, for example, storm events are infrequent, and can be both geographically isolated and of short duration. At a large Arizona mine, it may not be possible to conduct a complete facility inspection within the geographic breadth and duration of a storm event. Given the nature of Arizona storms, safety considera tions, particularly related to flooding, can preclude inspections during certain storm events. For these reasons, we suggest revising the language in Part 3.1, to clarify that the requirement to conduct one of the annual routine inspections during a period when a storm discharge is occurring will be required only "if practicable."

Response EPA disagrees that it is inappropriate for mining facilities in the arid southwest to conduct a facility inspection at least once during a period when a stormwater discharge is occurring. It is important that at least one routine inspection each year occur during a stormwater discharge to provide the operator a visual demonstration of the adequacy of existing controls. To clarify the requirement, the inspection must occur during a period when a stormwater discharge is occurring, which means that the inspect ion does not necessarily need to cover the entire facility coincident with the storm’s duration (i.e., it can occur after2015 EPA MSGP Response to Comments June 4, 2015

235 the storm event has ended provided a discharge is occurring). Because such an inspection must occur only once in a calendar year, EPA is convinced that operators covered under the MSGP will be able to meet the requirement.

Comment ID 0075.001.007 Issue Category: 3.1

Author Name: Claudio Ternieden Routine Inspections

Organization: Water Environment Federation (WEF)

8. Annual Reports and Routine Inspections

a. WEF supports the proposed changes to eliminate the annual comprehensive site assessment requirement and instead rely on the four required routine facility inspections. WEF expects that these inspections will be more effective and possibly less expensive in ensuring ongoing compliance.

Response See response to comment 0033.001.002.2015 EPA MSGP Response to Comments June 4, 2015

236 

### Issue Category: Section 3.2

- Quarterly Visual Assessments

Comment ID 0036.001.001 Issue Category: 3.2

Author Name: Anonymous Public Comment Quarterly Visual Assessmen ts
Organization: Private Citizen

Section 3.2.3 of the Proposed Multi

- Sector General Permit states "In areas subject to snow, at least one quarterly visual assessment must capture snowmelt discharge, as described in Part 6.1.3, taking into account the exception described above for climates with irregular stormwater runoff." Please consider changing the phrase "at least one quarterly visual assessment must" to "one quarterly visual assessment may" to provide the option for permittees to capture either stormwater runoff or snowmelt depending on weather conditions. As written this seems to require collection of snowmelt samples in areas subject to snow, even though, in addition to snowmelt, there may be valid rain events during each quarter that could be sampled.

Response EPA declines to make the change requested by the commenter. It is important that at least one visual assessment be from snowmelt because the pollutant characteristics of such discharges may differ from stormwater coming from a rain event. For example, snow piles sometimes contain buried trash and other debris that has been picked up through plowing or shoveling and could be discharged in snowmelt. Snow piles also can contain products used for deicing, such as salt, sand, and chemical deicers that could be

d ischarged in snowmelt. For these reasons, snowmelt needs to be assessed to ensure the controls are adequately minimizing pollutants from such discharges.

Comment ID 0070.001.002 Issue Category: 3.2

Author Name: Beth Goodnough Quarterly Visual Assessme nts
Organization: Western Fuels Association Inc.

2. Part 3.2.1 will require a collection of a stormwater sample from each outfall once each quarter for the entire permit term.

Response EPA clarifies that Part 3.2.1 does not require samples to be taken from outfalls that are substantially identical to other outfalls that are being sampled.

Comment ID 0083.001.009 Issue Category: 3.2

Author Name: David Wagger Quarterly Visual Assessmen ts
Organization: Institute of Scrap Recycling Industries, Inc. (ISRI)

Quarterly Visual Assessment of Stormwater Discharges Should Clarify the Regulatory Status of Storm Events During Non

- Business Hours.

Proposed §3.2 ("Quarterly Visual Assessment of Stormwater Discharges") includes a number of exceptions (e.g., adverse weather conditions) to quarterly visual assessment in §3.2.3 ("Exceptions to Quarterly Visual Assessment"). The proposed exceptions do not include a storm event commencing during non

- business hours and thus create regulatory uncertainty about any requirements related to such a2015 EPA MSGP Response to Comments June 4, 2015

237 storm event. Because a storm event during non

- business hours may not produce a representative discharge (i.e., a dis charge reflecting industrial activity), there is an argument that it cannot be used for a quarterly visual assessment. However, given the requirement that samples collected more than 30 minutes after the onset of a discharge from a qualifying storm event must be documented with an explanation for the delay, it may be that a storm event commencing during non

- business hours could be used for quarterly visual assessment, with an explanation. Yet, if such a storm event were the only storm event of the quarter

a nd it occurred without visual assessment, would the lack of a visual assessment during that quarter constitute a permit violation? This bespeaks the unknown regulatory status of a storm event commencing during non

- business hours. Because of the potential difficulty in mobilizing personnel to collect a discharge sample during non

- business hours, which itself could be dangerous (e.g., in the dark), an exception should be added to §3.2.3 for storm events commencing during non

- business hours.

This same excep tion should be added to §6.1 ("Monitoring Procedures") in the case of benchmark and other monitoring.

Response Because of the infrequency of visual assessments (quarterly), EPA expects that operators will be able to comply with the requirement during n ormal business hours. EPA points out that there are many sources of weather forecast information available to operators so that adequate preparation for monitoring storm events, whether during business hours or not, can be done. For the rare case when an o perator is not able to conduct the assessment in the quarter because of the paucity or poor timing of storm events, the permit provides the option of scheduling the “quarterly” assessment in other seasons when storm events are more accessible, which addres ses the commenter’s concerns about potential safety issues and permit violations.2015 EPA MSGP Response to Comments June 4, 2015

238 

### Issue Category: Section 4.0

- Corrective Actions -General

Comment ID 0029.001.009 Issue Category: 4.0

Author Name: Kim Cox Corrective Actions

- General

Organization: City of Portland Environmental Services

4. Should EPA grant waivers from costly corrective actions if exceedances are due to background conditions or factors beyond a facility's control?

In theory such waivers seem reasonable, but in practice these waivers could be challenging to implement. EPA would need to very clearly and narrowly define what the waiver conditions might be, and provide specific information on the approval criteria EPA will use to grant the waiver.

Response See monitoring response to comment essay

Comment ID 0066.001.014 Issue Category: 4.0

Author Name: Timothy Carlstedt Corrective Actions

- General

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 4 Corrective Actions

As discussed in the following sections, UWAG has both clarifying and substantive comments on this section of the permit.

Response No response necessary.

Comment ID 0073.001.006 Issue Category: 4.0

Author Name: Kelly Norton Corrective Actions

- General

Organization: Arizona Mining Association (AMA)

Corrective Action Provisions

AMA has serious concerns with the proposed revisions to the corrective action provisions in the draft MSGP. In the first place, the federal NPDES regulations do not contain any reference to "corrective action" as applied to stormwater or other NPDES permits. Consequently, the legal authority or basis for the application of this concept to stormwater permitting is suspect. In addition, the draft permit already imposes requirements to maintain stormwater control measures (Part 2.1.2.3), eliminate unauthorized discharges (Part 5.2.3.4), and to ensure that authorized discharges meet applicable water quality standards in the receiving waterbody (Part 2.2.1 (as further explained by the draft fact sheet)). The corrective action provisions add additional and burdensome requirements to the draft MSGP that are not necessary or appropriate.

Further, while the corrective action provisions in the 2008 MSGP were difficult to implement and understand, the proposed revisions create additional implementation and interpretat ional issues. For instance, the exceedance of a benchmark based on the average of four quarterly samples has been moved2015 EPA MSGP Response to Comments June 4, 2015

23 9 from a separate part in the 2008 MSGP (Part 3.2), which only required review of control measures, into the section of correction action (Part 4.1) that requires elimination of the condition triggering corrective action and the prevention of the condition's reoccurrence. Although EPA has stated that benchmarks are not enforceable, EPA repeatedly emphasizes in the fact sheet to the draft MSG P (see pages 36

- 38 of 72) that the new requirement to undertake "corrective action" as necessary to "eliminate" benchmark exceedances and "prevent" their reoccurrence are enforceable. This new requirement, which derives from the proposed consolidation of Parts 3.1 and 3.2 in the 2008 MSGP, has the effect of making the benchmarks de facto discharge limitations. Because the required responses to benchmark exceedances already are addressed in separate provisions of the draft MSGP (Part 6.2.1.2), the reference to benchmark exceedances triggering corrective action should be removed from the corrective action provisions in the draft MSGP or at the very least the benchmark provisions in the corrective action section of the 2008 MSGP (Part 3.2) should be retained.

The requirement to conduct corrective action in the event of any "unauthorized release or discharge" (Part 4.1), regardless of impact or location, is overly broad and should be removed. If retained, the provision should be limited to unauthorized discharge to "waters of the United States" that occur within the capture areas for stormwater discharges otherwise authorized under the MSGP.

The requirement to conduct corrective action if a "required control measure" was never installed or is not being properl y operated and maintained is entirely subjective. First, it is unclear what is considered as a "required control measure." Second, it is unclear when a control measure is not being properly operated or maintained. For instance, if one control measure is de termined during a routine inspection to need maintenance, would such a finding trigger corrective action (including all the associated reporting obligations) or would the permittee simply need to perform the necessary maintenance? A distinction

needs to be made between routine maintenance, which should not trigger corrective action, and a fundamental failure of a control measure previously identified by the permittee

- only the latter should trigger corrective action.

The new requirement to trigger correc tive action if a visual assessment indicates obvious signs of stormwater pollution is problematic and should be removed. First, it is unclear what is meant by "stormwater pollution" and whether it has any relation to actual discharges or impacts to receivi ng waters. Further, this new corrective action trigger is especially problematic in the arid southwest where stormwater discharges always have visible signs of solids due to the naturally erodible nature of the soils and the associated topography.

Respo nse See mining response to comment essay.

Comment ID 0085.001.023 Issue Category: 4.0

Author Name: Zachary Griefen et al. Corrective Actions

- General

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's monitoring data, reports and plans to be online and readily available to EPA and the public relates to several sections of the proposed MSGP, as follows:

•4.3 Corrective Action Documentation. You must document the existence of any of the conditions listed in Part 4.1 within 24 hours of becoming aware of such condition. You are not required to submit your corrective action documentation to EPA, unless specifically requested to do so.2015 EPA MSGP Response to Comments June 4, 2015

240 o Commenters note that permittees should be required to post corrective action documentation online and such documentation should be readily available to EPA and the public in order demonstrate that corrective action has been taken and facilitate a review of the adequacy of the corrective action.

Response The 2015 MSGP requires a summary of corrective action documentation to be included in the facility’s annual report, which is submitted through the NPDES eReporting Tool (NeT), and will be available to the public through EPA’s Enforcement and Compliance History Online (ECHO) tool.

Comment ID 0085.001.038 Issue Category: 4.0

Author Name: Zachary Griefen et al. Corrective Actions

- General

Organization: Conservation Law Foundation et al.

7. Include in Part 4 of the MSGP a requirement for any covered facility that is required to conduct a review pursuant to Section 4.1 to continue its corrective action process until it has either met benchmarks

or has exhausted all of the BMPs that EPA identifies as available for the industrial sector.

8. To ensure that permittees progress through their available options in a timely manner and select sufficiently aggressive BMPs, EPA should specify in Part 4 of the permit that exceeding benchmarks a

second time, i.e. after corrective action is taken, is a violation of the permit.

Response EPA declines to modify Part 4 in accordance with the commenter’s suggestions. The corrective action triggering conditions in Part 4.1 of the permit are sufficiently stringent to ensure that the non -numeric effluent limits and the applicable water quality standards are being met. Additionally, there are several reasons that make it inappropriate for EPA to consider follow

- up benchmark monitoring exceedances a permit viola tion. For example, such exceedances may not actually cause the facility’s stormwater discharges to exceed water quality standards. Additionally, any such exceedances may be attributable to pollutants in the natural background.

Comment ID 0085.001.054 Issu e Category: 4.0

Author Name: Zachary Griefen et al. Corrective Actions

- General

Organization: Conservation Law Foundation et al.

24. Require permittees to post corrective action documentation online and make such documentation readily available to the public in order demonstrate that corrective action has been taken and facilitate a review of the adequacy of the corrective action;

Response See response to 0085.001.023.

Comment ID 0087.001.014 Issue Category: 4.0

Author Name: Kathleen Martin Corrective Actions

- General

Organization: Alcoa Inc.

Section 4.3 Corrective Action Documentation2015 EPA MSGP Response to Comments June 4, 2015

241 • This section is overly prescriptive, requiring documentation within 24 hours. As with the previously mentioned timeframe for the actions, the documentation of issues will be problematic in the tight timeframe that is proposed by EPA. More flexibility should be allowed.

Response EPA disagrees that the corrective action documentation timeframes are overly prescriptive. The permit requires minimal information in the initial corrective action report, including a description of the issue,

the date the issue was identified, and a description of any immediate actions taken to address the issue. EPA anticipates that such documentation would take part in conjunction with the requirement to take immediate actions in Part 4.1 (i.e., a component of an “immediate action” is documenting the issue). This requirement is substantially similar to documentation requirements in the 2008 MSGP.

Comment ID 0092.001.028 Issue Category: 4.0

Author Name: Jeffrey Longsworth Corrective Actions

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 4

- Corrective Actions

Similar to the SWPPP and non

- numeric effluent limits issues discussed above, corrective actions must have a causal connection directly to the industrial stormwater pollutant discharges through a point source to a water of the U.S. or other mandate in furtherance of the Clean Water Act or related EPA regulations. For example, a facility could have an "unauthorized release" of a material (i.e., in gaseous form) that does not relate to the discharge of pollutants via stormwater, and thus corrective actions would not be appropriate under the MSGP. Again, the easy fix for this and related circumstances is for EPA to explain categorically that the mandates contained in the MSGP are intended to address only those circumstances that would lead to a discharge of pollutants through a point source to a water of the U.S. in violation of technology or water quality

- based effluent limitations.

Response The corrective action triggering conditions in Part 4.1 (Conditions Requiring SWPPP Review and Revision) all relate to violations, or potentially imminent violations, of the technology

- based and/or

water- quality based effluent limits in the permit, which all relate to discharges of pollutants from a point source to a water of the U.S. For the triggering conditions that are not in and of themselves permit violations, corrective action is required to ensure that a future violation does not occur, where, again, that violation would relate to controlling the discharge of pollutants from a point source to a water of the U.S.

C omment ID 0092.001.030 Issue Category: 4.0

Author Name: Jeffrey Longsworth Corrective Actions

- General

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 4.4 states that, "If the event triggering the review is a permit violation (e.g., non

- compliance with an effluent limit), correcting it does not remove the original violation." EPA should be clear that corrective actions are not only triggered by potential permit violations, but may be initiated for situations in which improvements can be made that further reduce pollutant discharges, but that are not themselves permit violations.2015 EPA MSGP Response to Comments June 4, 2015

242 In other words, EPA should make clear that the mere act of initiating a corrective action does not mean that an underlying permit violation already has occurred. Both the draft permit language and Fact Sheet could be read to imply corrective actions occur only in response to permit violations, creating a double threat to compliance associated with the initial permit violation and then failure to take timely corrective action. This may discourage facilities from taking certain corrective actions in the first place.

Response EPA agrees and confirms that not all Part 4.1 corrective action triggering conditions are in and of themselves permit violations. Because the language in Part 4.5 (Effect of Corrective Action) states “ If the event triggering the review is a permit violation...” (emphasis added), the permit language makes clear that not all corrective action triggering conditions are violations, and thus additional clarity is not needed.2015 EPA MSGP Response to Comments June 4, 2015

243 

### Issue Category: Section 4.1

- Conditions requiring SWPPP Review

Comment ID 0066.001.015 Issue Category: 4.1

Author Name: Timothy Carlstedt Conditions requiring SWPPP Review

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 4.1 Conditions Requiring SWPPP Review and Revision to Eliminate Problems

This provision requires dischargers to review their SWPPPs and determine if and where revisions are needed when certain designated conditions occur. UWAG respectfully requests that EPA clarify that this is considered "corrective action" under the permit.

Also, in keeping with a theme of these comments, UWAG requests that EPA revise the third bullet by omitting "applicable water quality standards or." The revised bullet, therefore, would read:

•Your control measures are not stringent enough for the disch arge to meet the nonnumeric effluent limits in this permit.

As noted elsewhere in these comments, discharges are not required to meet WQS; WQS are achieved (or not) in the receiving water.

Response EPA confirms that in some cases, a SWPPP review is co nsidered an appropriate corrective action. However, there are some events where stormwater control modifications are necessary to ensure that the technology- based and water quality

- based effluent limits in the permit are met. Therefore, EPA has

revised Par t 4 to differentiate corrective action

- triggering conditions that require SWPPP review and revision (Part 4.1), and corrective action

- triggering conditions that require SWPPP review to determine if modifications are necessary (Part 4.2).

EPA has clarified in other parts of the permit that meeting water quality standards means that discharges must not cause or contribute to an exceedance of applicable water quality standards. This clarity addresses the commenter’s concern, and therefore, revisions to Part 4.1 are not necessary. See also response to

comment 0066.001.004.

Comment ID 0070.001.009 Issue Category: 4.1

Author Name: Beth Goodnough Conditions requiring SWPPP Review

Organization: Western Fuels Association Inc.

Part 4.1 has a new bullet stating "Visual assessments indicate obvious signs of stormwater pollution (e.g., color, odor, floating solids, settled solids, suspended solids, foam). Can a reference be inserted that specifies what levels of color changes, odor, floating solids, settled solids, suspended solids or foam are considered "polluted" by these visual parameters? Can we compare the observations with similar native runoff and use that comparison to show that the SWPPP plan is adequate?

Response It is not possible for EPA to list each and every possible sign of stormwater pollution. A determination of whether there is evidence of stormwater pollution in a discharge is site

- specific and depends on many factors (e.g., the nature of industrial activities t aking place). However, to provide clarity for the2015 EPA MSGP Response to Comments June 4, 2015

244 commenter, examples of stormwater pollution evidence could include algal growth or a visible oil sheen in or near the stormwater drainage area or outfall. Comparing the visual assessment sample to native

ru noff is not required, nor was it envisioned by EPA as a way to make a determination of a potential needed corrective action. If the evidence of stormwater pollution is attributable to industrial activities (as opposed to natural background levels of the po llutant of concern), then corrective action is required. Note that natural background pollutants do not include legacy pollutants from earlier activity on your site, or pollutants in run

- on from neighboring sources, which are not naturally occurring, such as other industrial sites or roadways.

Comment ID 0073.001.015 Issue Category: 4.1

Author Name: Kelly Norton Conditions requiring SWPPP Review

Organization: Arizona Mining Association (AMA)

Part 4.1: Consistent with the comments above regarding compliance with water quality standards, this part should be revised as follows:

4.1 Conditions Requiring SWPPP Review and Revision to Eliminate Problems

. . . . .

• Your control measures are not stringent enough for the discharge to not cause or contribute to an exceedance of meet applicable water quality standards in the receiving waterbody or the non -numeric effluent limits in this permit.

Response See response to comment 0066.001.015 and res ponse to comment 0066.001.004.

Comment ID 0089.001.002 Issue Category: 4.1

Author Name: Kerry Kelly and Chuck White Conditions requiring SWPPP Review

Organization: Waste Management (WM)

The Permit should explain how a facility determines whether its discharges meet applicable water quality standards. [Section 4.1]

Section 4.1 of the Permit states:

When any of the following conditions occur or are detected during an inspection, monitor ing or other means, or the EPA, or local, state or tribal entity informs you that any of the following conditions has occurred, you must review your SWPPP (e.g., sources of pollution, spill and leak procedures, non -storm water discharges, selection, design, installation and implementation of your control measures) to determine if and where revisions may need to be made to eliminate the condition, prevent its reoccurrence, and ensure that effluent limits are met:

...

Your control measures are not stringent enough for the discharge to meet applicable water quality

standards or the non

- numeric effluent limits in this permit.2015 EPA MSGP Response to Comments June 4, 2015

245 The Permit does not explain how a permittee should determine whether its discharge meets applicable water quality standards. Complianc e with water quality standards is determined based on whether the receiving water is meeting water quality standards. Thus, it is often difficult for a facility operator who is sampling its discharge only

- and not the receiving waters

- to know whether it s small storm water flow is causing or contributing to an exceedance of a water quality standard. This is especially true where the receiving water may be a long distance from the permitted facility and where its discharge commingles with discharges from o ther facilities before the commingled flow discharges into the receiving water.

Response See response to comment 0066.001.015 and response to comment 0066.001.004.2015 EPA MSGP Response to Comments June 4, 2015

246 

### Issue Category: Section 4.2

- Corrective Actions Deadlines

Comment ID 0033.001.003 Issue Category: 4.2

Author Name: Eileen Sottile Corrective Actions Deadlines

Organization: LKQ Corporation

Specific deadlines for taking corrective actions. LKQ supports this proposal as long as the deadlines allow for the proper implementation of some advanced BMPs. National corporations, like LKQ, will always adjust BMPs as necessary to get into compliance with environmental regulations. However, most of the management practice changes will not be able to be proven effective until one or two storm water events occur to test the changes. We request EPA to add this to it analysis of implementing corrective actio n deadlines. We would request the deadlines "reset" upon BMPs changes directed to correct a non

compliance level or event.

Response When it is determined that corrective action is needed, the 2015 MSGP requires permittees to immediately take all reasonable steps necessary to minimize or prevent the discharge of pollutants until a permanent solution is installed and made operational. “All reasonable steps” means that the permittee has undertaken initial actions to assess and address the condition causing the corrective action, including, for example, cleaning up any exposed materials that may be discharged in a storm event (e.g., through sweeping, vacuuming) or making arrangements (i.e., scheduling) for a new BMP to be installed at a later

date. “Al l reasonable steps” does not necessitate taking action when it is unsafe to do so (e.g., due to inclement weather). The permit also states that if a problem is identified at a time in the work day when it is too late to initiate corrective action, the initiation of corrective action must begin no later than the following work day.

If additional actions are necessary (i.e., the installment of a new BMP), the permit requires that the action be taken within 14 days of the time of discovery of the condition. However, EPA also recognizes that there may be circumstances where it is not feasible to complete needed corrective actions within 14 days, and therefore provides that permittees may modify the schedule for completing the corrective action so that corrective action is taken as soon as practicable after the 14

- day timeframe, and is completed no later than 45 days after discovery of the triggering condition. The permittee must document the reason and

include a modified timeframe in the SWPPP.

These timeframe s are a clarification of what EPA expected under the 2008 MSGP, which required the documentation of corrective actions taken or to be taken within 14 days of discovery of the triggering condition, and specified that changes to control measures be made before the next storm event, or as soon as practicable following that storm event. It is therefore evident that under the 2008 MSGP, EPA expected that corrective actions would be taken in a timeframe not exceeding 45 days. However, after gaining experience in implementing the corrective action requirements in the 2008 MSGP, EPA determined that a specific deadline is needed to minimize the likelihood that water quality issues persist indefinitely and are addressed expeditiously. EPA does recognize that there may be some extreme circumstances in which 45 days is not enough time to complete the corrective action. Accordingly, EPA added the following to Part

4.3.2: “ If the completion of corrective action will exceed the 45 day timeframe, you may take the minimum

add itional time necessary to complete the corrective action, provided that you notify the EPA Regional Office of your intention to exceed 45 days, your rationale for an extension, and a completion date, which you must also include in your corrective action documentation (see Part 4.4) .”

EPA also would like to highlight that the corrective action process envisioned by EPA is more reasonable than many commenters acknowledge. As described in the fact sheet, EPA recognizes that identifying both2015 EPA MSGP Response to Comments June 4, 2015

247 the need to take corrective action and the appropriate modifications to the control measures will, in some cases, be an iterative process. Several storm events may be needed to determine how to fully resolve the triggering issue(s). In such cases, the corr ective action review process would be reset after each corrective action is taken. Additionally, in EPA’s experience, the vast majority of corrective actions necessary under the MSGP would not require radical redesigns or extensive repairs that would take up to half a year (as a commenter suggested).

Importantly, the corrective action requirements in the 2015 MSGP, in combination with the inspection and monitoring requirements and the permit’s effluent limits, are necessary to ensure that discharges are

c ontrolled as necessary to meet applicable water quality standards. The triggers that necessitate a corrective action under the MSGP are all serious events that indicate the permit’s effluent limits may not be met (e.g., the occurrence of an unauthorized release or discharge, a violation of a numeric effluent limit, an exceedance of water quality standards, the failure to install a required control). A nearly open

ended deadline for taking corrective action could allow permittees to discharge high levels of pollutants with no sense of urgency to make fixes. Accordingly, EPA has found that the corrective action deadlines are necessary to minimize the length of time that the permit’s effluent limits are not being met.

For the reasons described above, the corrective action deadlines in the 2015 MSGP are sufficiently flexible, accommodate the vast majority of scenarios permittees covered under the MSGP will encounter, and are necessary to ensure discharges authorized under the permit are controlled as necessary to meet water quality standards.

EPA emphasizes that the corrective action timeframes are not grace periods within which an operator is relieved of any liability for a permit violation that may have triggered the corrective action. If the original inadeq uacy triggering a corrective action constitutes a permit violation, then that violation is not deferred or erased by the timeframe EPA has allotted for corrective action. Therefore, it is critical that there be sufficiently stringent deadlines to minimize the length of time that the permit’s effluent limits are not being met, and to minimize the number of days a potential permit violation is occurring.

Comment ID 0040.001.008 Issue Category: 4.2

Author Name: Kevin Walgenbach Corrective Actions Deadlines

Organization: National Ready Mixed Concrete Association (NRMCA)

8. Corrective Action

- NRMCA strongly opposes the inclusion to the permit of requiring corrective actions be taken within 14 calendar days. The ready mixed concrete industry is committed to preventing pollution of our nation's waterways and goes to great lengths to assure as much. However, it is simply impossible in many instances to complete corrective actions within such a short time frame. Very often, corrective actions require local, state and/or federal permits before any corrective action can be taken; such as corrective action for discharges in a floodplain or areas under the jurisdiction of the U.S. Army Corps of Engineers. Unfortunately, while at the mercy of local, state and federal government workings, obtaining such permits regularly takes much, much longer than 14 calendar days. To account for such regular and routine permit delays, NRMCA suggests changing the 14 calendar day time frame to 180 calendar days, which would be a more appropriate and realistic timeframe.

Response

See res ponse to comment 0033.001.003. EPA points out that the requirements are more reasonable than the commenter acknowledges. The permit allows up to 45 days to complete a corrective action in certain cases, which will accommodate scenarios anticipated by EPA as appropriate for MSGP coverage. Additionally, the permit provides additional time if needed provided the Region is notified.2015 EPA MSGP Response to Comments June 4, 2015

248 Comment ID 0053.001.001 Issue Category: 4.2

Author Name: Emily Coyner Corrective Actions Deadlines

Organization: National Stone, Sand, & Gravel Association (NSSGA)

Corrective Action Time Limits are Unreasonable

The time limits required for corrective action are unreasonable and unjustified, particularly the maximum of 45 days. Part 4.2.2 of the proposed 2013 MSGP states:

If you determine that additional changes are necessary beyond those implemented pursuant to Part 4.2.1, you must install a new or modified control and make it operational, or complete the repair, before the next storm event if possible, and within 14 calendar days from the time of discovery. If it is infeasible to complete the installation or repair within 14 calendar days, you must document why it is infeasible to complete the installation or repair within the 14 day timeframe. You must also identify your schedule for completing the work, which must be done as soon as practicable after the 14 day timeframe but no longer than 45 days after discovery... These time intervals are not grace periods, but are schedules considered reasonable for documenting yo15ur findings and for making repairs and improvements. They are included in this permit to ensure that the conditions prompting the need for these repairs and improvements are not allowed to persist indefinitely.

EPA does not demonstrate where that the previous requirement of corrective action as soon as feasible was inadequate. Furthermore, these ti me limits are unreasonable, and in numerous cases, impossible for aggregates operators to safely achieve. A stormwater pond may need to be accessed to remove silt in order to meet effluent limits for TSS. If a facility discovers it exceeds the TSS effluent limit in late December, the pond may be frozen until the end of February. This pond could not be safely accessed until it has thawed completely, which would exceed the 45 days and therefore be out of compliance.

Additionally, in order to access a pond, the operator may need to alter a jurisdictional wetlands or other water feature subject to Clean Water Act Section 404B permitting, or it may require another state or local permit. It is rare to obtain a 404B permit in less than 45 days, let alone prepare the work required for such a permit; these permits can take years to obtain. In this case the operator would face the decision to either be out of compliance with the MSGP or another requirement. Surely EPA cannot intend an operator to face this sort of quandary. EPA offers no justification for this unreasonable time limit, and because it can affect other permitting requirements and operator safety, it should be removed.

Response See responses to comments 0033.001.003 and 0040.001.008.

Comment ID 005 8.001.001 Issue Category: 4.2

Author Name: Anonymous Public Comment Corrective Actions Deadlines

Organization: Private Citizen

Reference: Permit section 4.2.2, page 23 of 146.

At the end of the first paragraph, the phrase "...but no longer than 45 days after discovery" should be replaced with "...in a reasonable amount of time considering budget, capital expenditures, state and local permitting requirements, equipment availability, among other factors affecting scheduling." Alternatively, the 45 day limit could refer to preparation of an anticipated schedule for the corrective action to occur.2015 EPA MSGP Response to Comments June 4, 2015

249 EPA offers no justification for this unreasonable time limit, and strict compliance with th e time limit could conflict with other permitting requirements, such as wetland or shoreland protection.

It is conceivable that a pollutant may not be originating from the expected activity or location onsite. A study, which would require time to prepare and execute a scope of work, would have to be initiated. The corrective actions recommended in the study could take up to several months of planning, permitting, and additional capital expenditure, especially if the corrective actions require disturbance of wetlands, protected shorelands, or changes in the groundwater regime.

To illustrate this point, an actual scenario that occurred in 2010 is described here: a regulated company had to take corrective actions according to 2008 MSGP requirements (based o n an exceedance of a benchmark threshold). The corrective action required installation of ground water monitoring wells, development of a ground water conceptual model, and execution of monitoring well testing, engineering, excavation, and construction phases. The entire project took 3+ months to complete due to 1) time needed to evaluate the problem, 2) time needed to propose a solution, 3) actual field work, and 4) adverse wintertime conditions for this type of construction. This facility would have been in violation of the 2013 MSGP even though it was on

- task and addressing the corrective action as intended in the permit.

THEREFORE: The requirement should be removed or edited as recommended above. It is unreasonable to require all corrective actions be accomplished within 45 days. A more reasonable approach would be to require that an anticipated schedule be prepared within the 45

- day limit. The 2008 MSGP requirements are satisfactory, because EPA will still be able to monitor progress through the curren t corrective action schedules and annual reporting requirements.

Response See responses to comments 0033.001.003 and 0040.001.008.

Comment ID 0060.001.002 Issue Category: 4.2

Author Name: Katherine Preston Corrective Actions Deadlines

Organization: Airports Council International

- North America (ACI

NA)

Section 4.2: Corrective Actions and Deadlines

"4.2.2 Subsequent Actions: If you determine that additional changes are necessary beyond those implemented pursuant to Part 4.2.1, you must install a new or modified control and make it operational, or complete the repair, before the next storm event if possible, and within 14 calendar days from the time of discovery. If it is infeasible to complete the installation or repair within 14 calendar days, you must document why it is infeasible to complete the installation or repair within the 14

- day timeframe. Y ou must also identify your schedule for completing the work, which must be done as soon as practicable after

the 14

- day timeframe but no longer than 45 days after discovery.

Where your corrective actions result in changes to any of the controls or procedures documented in your SWPPP, you must modify your SWPPP accordingly within 14 calendar days of completing corrective

action work."

Considering the ephemeral nature of stormwater, and the complexity of airport storm sewer systems, it may not be possible to even determine the cause of a benchmark exceedance within 14 days, let alone identify and implement a permanent solution that may require infrastructure modifications. The required time for developing plans for permanent infrastructure changes should p rovide flexibility that considers2015 EPA MSGP Response to Comments June 4, 2015

250 the additional complexity that can be encountered when trying to determine the cause of an exceedance. Moreover, the timing requirement for developing a schedule to complete possibly large scale corrective actions, and the n actually constructing them, should provide flexibility through coordination with the regulator.

Response See responses to comments 0033.001.003 and 0040.001.008.

Comment ID 0063.001.005 Issue Category: 4.2

Author Name: Paul Nazaryk Corrective Actions Deadlines

Organization: BHP Billiton New Mexico Coal

3. The proposed MSGP establishes new and expanded corrective action provisions. It would not be possible for a large mining operation to comply with these new provisions, particularly those in § 4.2.1 pertaining to "immediate actions". We respectfully maintain that the corrective action provisions found in

the 2008 MSGP should be retained.

The proposed MSGP includes much more detailed and extensive corrective action requirements at § 4, including a new section on "immediate" corrective actions found at § 4.2.1. This new provision requires correction of a problem on the same day a condition is found or the next work day, if a problem is detected too late in the day to initiate corrective action.

We believe that the proposed requirements are "well meaning" and possibly appropriate for smaller sites (i.e., less than 100 acres). In developing the proposed standards, EPA clearly did not envision a site of the magnitude of a major Western mining operation, covering 20,000 or more acres with hundreds of storm

wa ter best management controls and dozens of containment ponds and other storm water management

structures.

Considering the size of our operations, it may be physically impossible after a "monsoon" event, even with crews working "around the clock", to comp ly with the deadlines outlined in the proposed MSGP and repair the hundred or so storm water controls that could be impacted. As a result, we respectfully submit that the deadlines proposed in the draft are unnecessarily onerous and impracticable and that the corrective action provisions found in the current 2008 MSGP should be retained.

Response See responses to comments 0033.001.003 and 0040.001.008 and the mining response to comment essay.

Comment ID 0064.001.006 Issue Category: 4.2

Author Name: Katie Kistler Corrective Actions Deadlines

Organization: AK Steel Corporation

Corrective Actions and Deadlines Sections 4.2 and 4.3 Correct Actions and Deadlines

The actions that must be taken within the time frames listed in Sections 4.2.2 and 4.3 are unclear to AK Steel. The requirements of Section 4.2.2 appear to be that corrective actions required to eliminate specific problems listed in the permit be implemented within 14 days of discovery, and if that is not feasible, that a schedule for implementation of the corrective action must be developed within 45 days. In other words, the implemented corrective action does not need to be completed within 45 days, but a schedule for its implementation must be completed within 45 days. This means that a solution would need to be identified2015 EPA MSGP Response to Comments June 4, 2015

251 in the 45 day period. Whatever the case, a 45 day period may not be adequate to identify a solution to a specific problem, let alone i mplement changes to address it. Engineering investigations and feasibility studies often take much more time than 45 days. A 45

- day period for conceptual design, engineering, construction bidding and actual construction is totally inadequate. AK Steel sugg ests a more realistic approach:

• Complete all corrective actions as soon as reasonably practical; • Complete corrective action within 14 days, if practical. If not , state the reasons in the corrective action documentation and follow the following sche dule:

o Identify a corrective action within 6 months; o Implement the corrective action within 24 months; o If this schedule is not feasible or practical for the identified corrective action, state the reasons why and

include an alternate schedule in t he SWPPP and corrective action documentation.

Response The permit clearly requires that all corrective actions must be completed within 45 days (if it is infeasible to complete the action within 14 days). See also responses to comments 0033.001.003 and 0040.001.008.

Comment ID 0066.001.016 Issue Category: 4.2

Author Name: Timothy Carlstedt Corrective Actions Deadlines

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 4.2.1 Immediate Actions

This provision says that "[i]n all circumstances, you must immediately take all reasonable steps..." It is not clear what is meant by "in all circumstances." Given its placement in the Corrective Action section of the permit, and that it follows the list of conditions that require initial Corrective Action (as noted above), UWAG believes that the phrase "in all circumstances" means "upon occurrence of any of the conditions listed in Part 4.1." UWAG requests that EPA clarify the meaning of this provision accor dingly.

Part 4.2.2 Subsequent Actions

This provision provides that when additional corrective action measures are necessary, they must be completed within 14 days of discovery of the condition requiring corrective action, unless infeasible. If

infeasib le to complete the work within 14 days, the discharger must complete it as soon as practicable thereafter, but no longer than 45 days after discovery. By comparison, the 2008 MSGP required corrective action before the next storm event if possible or as soon as practicable thereafter.

UWAG agrees that conditions needing corrective action should not be allowed to "persist indefinitely." However, just as there may be instances when 14 days is insufficient to complete installation or repairs of control equipm ent, so too there may be times when 45 days is insufficient. UWAG suggests that EPA revise the 2013 MSGP consistent with the 2008 MSGP. Alternatively, the 2013 MSGP should allow dischargers to seek, for good cause, an extension of the 45

- day deadline on a case -by- case basis.

Response EPA has revised Part 4.3 to state: “If corrective action is needed...” (instead of stating “In all circumstances...”). EPA clarifies that the requirement does apply to the corrective action

- triggering conditions in Part 4.1 and in Part 4.2, where correction actions are determined to be necessary.2015 EPA MSGP Response to Comments June 4, 2015

252 See also responses to comments 0033.001.003 and 0040.001.008.

Comment ID 0070.001.010 Issue Category: 4.2

Author Name: Beth Goodnough Corrective Actions Deadlines

Organization: Western Fuels Association Inc.

Parts 4.2.1 and 4.3. We have significant concern with the proposed language in Parts 4.2.1 and 4.3. Proposed Part 4.2.1 of the 2013 MSGP requires in all circumstances, immediate steps be taken to minimize or prevent discharge until the permanent solution is implemented. Part 4.3 requires documentation of the conditions listed in part 4.1 within 24 hours of being aware of the condition. We object to both these parts, because it is unrealistic of EPA to expect our limited staff to meet the increased inspectio n frequency, while beginning to line out personnel, materials and equipment to make repairs, and also begin writing reports to EPA, all at the same time. With the increase in inspection frequency, it will be difficult to inspect and begin maintenance on the same day, particularly if EPA expands the items covered to include exploration access roads. Often only a limited number of staff are available at our operations who know where the stormwater controls are, and also know the locations of the exploration

d rill hole roads. Our staff simply cannot be inspecting all these items at the frequency required and also be running around getting personnel and equipment lined up to start maintaining them that same day, and also write the correction report by the end of the next day. We are concerned this could lead to rushed decisions, and pressure to bypass required safety procedures in an effort to meet overly aggressive regulatory deadlines. Areas receiving significant runoff at surface coal mines must be inspected f or safety concerns, and those concerns must be mitigated prior to the equipment being available to repair the

stormwater measures. We are also concerned that this will lead to rushed decisions to either install inappropriate control measures, or overly expensive temporary measures just to meet EPA deadlines. At a minimum, EPA should justify this huge increase in their expectations for timing of corrective actions. The inspection and corrective action schedule in the 2008 MSGP, at Part 3.4, specified immedia te documentation of the problem, with further documentation of the date corrective action was initiated, and within 14 days, documentation of the date the corrective action was completed (that is consistent with proposed Part 4.2.2). The 2008 MSGP language at Part 3.4 was more realistic and should be retained. EPA should realize that often the inspector needs a minute or two to think about the best possible method to safely alleviate an issue. Rushed actions often lead to further complications.

Response See responses to comments 0033.001.003 and 0040.001.008, and the mining response to comment essay.

Comment ID 0071.001.008 Issue Category: 4.2

Author Name: Robert Barnes Corrective Actions Deadlines

Organization: Midas Gold Inc. (MGI)

7. Corrective Actions

The definitions for "infeasible" and "immediate actions" are over

- restrictive, unnecessary and impracticable to implement in a remote area like the Project. To not be technologically possible or economically practicable and effectively achievable provides no realistic sideboards on the definition of "infeasible". Likewise, the "immediate action" sideboard for determining the 14

- day time limit to complete all necessary repairs may in fact restrict an operator from doing a competent co rrective action. Again, we would stress the need for sight

- specific, project

- specific solutions and the concept of less prescriptive measures and more effective field engineering.2015 EPA MSGP Response to Comments June 4, 2015

253 Response EPA disagrees with the commenter’s concerns regarding the definition for “infeasible” in the 2015

MSGP. The 2015 MSGP defines “infeasible” to mean not technologically available or not economically practicable and achievable in light of best industry practices. This definition is consistent with the term

“minimize” tha t was used in the 2008 MSGP, and is also consistent with the definition of “infeasible” included as part of the effluent limitation guideline for stormwater discharges from construction sites. This definition provides discretion to the permittee in making a determination about whether a requirement can be met (it does not specify the degree to which a permittee must consider whether a specific technology is available and/or economically practicable), and therefore, the requirement is not overly restrictive (nor unnecessary and impracticable to implement, even in remote areas).

Regarding the commenter’s concerns about the corrective action deadlines, see responses to comments

0033.001.003 and 0040.001.008.

Comment ID 0073.001.007 Issue Category: 4.2

Author Name: Kelly Norton Corrective Actions Deadlines

Organization: Arizona Mining Association (AMA)

AMA also has serious concerns with the new proposed corrective action deadlines and believe they are entirely unworkable as applied to large mining operations. The existing deadlines in the 2008 MSGP are more than satisfactory and should be retained in the MSGP (or EPA should explain and document why a change in the deadlines are needed).

Response

See the mining response to comment essay. See also responses to comments 0033.001.003 and

0040.001.008.

Comment ID 0077.001.001 Issue Category: 4.2

Author Name: Pamela Faggert Corrective Actions Deadlines

Organization: Dominion

Corrective Actions and Deadlines

The corrective action deadlines in the draft MSGP are similar to the corresponding deadlines in the 2008 MSGP, but have been modified to further specify what actions must be taken by the deadlines. Part 4.2.1 of the draft permit now requires that "reasonable" steps be taken immediately (i.e., on the same day the condition was found) to minimize or prevent discharge until a permanent solution is operational. This section states if the problem is identified during the work day when it is too late to initiate corrective action, the initiation of corrective action must begin on the following work day. Part 4.2.2 of the draft MSGP requires that if subsequent action is needed, the permittee must install a new or modified control and make operational, or complete the repair, before the next storm event if possible, and within 14 calendar days from the time of discovery. If it is infeasible to complete the repair within the 14 calendar days, the permittee must document why it is infeasible to complete the repair within the 14 -day timeframe, and identify the schedule for completing the work as soon as practicable after the 14 -day timeframe, but no longer than 45 days after discovery.

The 2008 MSGP requires documentation of discovery of a problem requiring corrective action within 24 hours of making such discovery and documentation of corrective actions to be taken within 14 days. In2015 EPA MSGP Response to Comments June 4, 2015

254 the 2008 MSGP, any modifications to control measures must be made before the next storm event if possible or as soon as practicable follo wing that storm event. The new deadlines in the draft MSGP, specifically immediate commencement of corrective actions and no more than 45 days for completing work could be problematic in certain situations. Identifying the problem, determining the correcti ve action needed and completion of the corrective action may take longer than 45 days. Equipment purchase and subsequent construction necessary to correct a problem could make meeting the timelines in the draft MSGP problematic. We request that the existing language for corrective action deadlines in the 2008 MSGP remain in the draft MSGP or that the draft MSGP language be revised to allow discharges to seek

a waiver of the 45

- day deadline for completing corrective actions on a case -by- case basis.

Response See responses to comments 0033.001.003 and 0040.001.008.

Comment ID 0080.001.005 Issue Category: 4.2

Author Name: Louis Warchot and Michael Rush Corrective Actions Deadlines

Organization: The Association of American Railroads (AAR)

5. Practical Leeway in the Definition of the Word "Immediately" Needs to be placed in the Permit.

In Part 4.2, AAR understands that "immediately" means that all reasonable steps must be taken on the same day a corrective action condition is found until a permanent solution is installed and becomes operational. There are several occurrences that could take several days to troubleshoot and might include

off- site influence not easily detected. Underground piping, storage and other structures may restrict

i mmediate action. In severe cases, flooding and backwater conditions could limit the investigation and corrective action that might occur. Some solutions might require detailed engineering design, substantial construction activities, purchase of equipment, and more. All of these would require substantial time to complete. Due process and notice requirements mandate that EPA include some parameters in defining the permit requirement and set forth reasonable expectations regarding steps and timeliness in the case of

need for corrective action.

Response See responses to comments 0033.001.003 and 0040.001.008. EPA notes that actions associated with troubleshooting constitute “immediate actions” for the purposes of MSGP Part 4.3.1.

Comment ID 0086.001.003 Is sue Category: 4.2

Author Name: Daniel Graham Corrective Actions Deadlines

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association

III. The Revised Corrective Action Deadlines are Unreasonable

The proposed deadlines for corrective actions in Part 4.2 are onerous and unworkable. Rather than finalizing them, EPA should retain the existing corrective action deadlines from Part 3.3 the 2008 MSGP. Part 4.2.1 of the proposed permit would require that facilities "immediately take all reasonable steps necessary to minimize or prevent the discharge until a permanent solution is installed and made operational," and it further clarifies that "immediately" requires action on the same day or on the following work day, if a problem is identified at a time during the work day when it is too late to initiate corrective action. In addition, part 4.2.2 of the proposed permit would require additional changes (beyond2015 EPA MSGP Response to Comments June 4, 2015

255 those that must be immediately implemented under part 4.2.1) before the next storm event if possible, and within 14 calendar days of discovery that such changes are necessary.

The proposed deadlines go far beyond what is currently required under the 2008 MSGP without sufficient justification for the c hange. Under the existing permit, covered facilities were obligated to: (i) within 24 hours, document the discovery of any of the conditions in Parts 3.1 and 3.2; (ii) within 14 days, document any corrective actions to be taken to eliminate or further investigate the condition; and (iii) before the next storm event (as soon as practicable following that storm event), make any modifications to control measures. Those deadlines were adequately protective of water quality, and EPA has done nothing to show otherwise. Quite the contrary, EPA simply claims that the proposed deadlines "are similar" to the corresponding deadlines in the 2008 MSGP. See Fact Sheet at p. 37. This claim is demonstrably false. Even a cursory comparison of the two permits reveals the obvi ous differences.

The existing deadlines under the 2008 MSGP are far more reasonable and appropriate for general application across various industrial sectors. Under the existing permit, facilities already have a strong incentive to take prompt and comprehensive corrective action to protect water quality. For example, Part 3.5 states that "EPA will consider the appropriateness and promptness of corrective action in determining enforcement responses to permit violations." There is no need to impose the unr ealistic deadlines in the proposed permit. Moreover, what can be accomplished at a given facility will vary widely depending on the nature of the industrial activity, the size of the facility, the proximity of support facilities, etc. The mining industry i s particularly unique, as other industrial sectors do not face the same logistical challenges caused by differences in location and infrastructure. To illustrate, often only a limited number

of staff are available at ACA's members' facilities who know wher e stormwater controls are and also know the locations of the exploration drill hole roads. Staff simply cannot be inspecting all of these items at the frequency at which EPA would require, if they are also required to: (i) ensure that the proper personnel and equipment will be in place to start maintaining controls that same day; and (ii) prepare a correction report by the end of the next day. ACA is concerned that these unreasonable requirements could lead to rushed decision making (e.g., to install inappr opriate control measures) and will pressure facilities to bypass required safety procedures in an effort to try to meet overly aggressive deadlines. Areas receiving significant runoff at surface coal mines, for example, must be inspected for safety

concern s, and those concerns must be mitigated prior to putting equipment in place to address stormwater

control measures.

Although EPA's goal of requiring immediate action within 24 hours and further changes within 14 days is ambitious and may be workable for some facilities, it will be very difficult (or even impossible) for many mining facilities to meet those tight deadlines. Therefore, EPA should retain the existing deadlines from the 2008 MSGP rather than finalize the proposed revisions. Alternatively, if EPA chooses to finalize the proposed revisions, ACA offers additional comments on Parts 4.1 and 4.2 below.

Response See responses to comments 0033.001.003 and 0040.001.008, and the mining response to comment essay.

Comment ID 0087.001.013 Issue Category: 4.2

Author Name: Kathleen Martin Corrective Actions Deadlines

Organization: Alcoa Inc.

Section 4.2.1 Immediate Actions

• The language regarding immediate action in Section 4.2.1 is too restrictive and does not allow the facility to properly determine a root cause to address the potential issue. There are other instances in2015 EPA MSGP Response to Comments June 4, 2015

256 which immediate action, as defined in the draft MSGP, is not possible due to resource/manpower availability, etc. This definition should be revised as noted in our comments for Section 2.1.2.3 above to allow flexibility for regulated facilities to implement appropriate corrective actions.

Section 4.2.2 Subsequent Actions

• The implementation schedule included in the draft MSGP is overly prescriptive, and the 45 day maximum allowed for implementation may be impossible to meet, especially in cases in which a capital repair or new controls are needed. The language should be revised to allow more flexibility.

Response See responses to comments 0033.001.003 and 0040.001.008, and the mining response to comment essay. EPA clarifies that actions associated with troubleshooting constitute “immediate actions” for the purposes

of MSGP Part 4.3.1.

Comment ID 0089.001.003 Issue Category: 4.2

Author Name: Kerry Kelly and Chuck White Corrective Actions Deadlines

Organization: Waste Management (WM)

The Permit should allow more time for implementing "Subsequent Action" under Section 4.2.2.

As drafted, the proposed MSGP requires that "subsequent action must be taken to install a new or modified control and make operational, or complete the repair, by no later than 14 calendar days from the discovery of the condition." Such a short period -of- time will be unreasonable and impracticable in almost all situations. This proposed requirement is significantly more stringent than the corresponding 2008

MSGP re quirement for subsequent action. The 2008 MSGP required that within 14 days the corrective action plan be documented. The proposed 2013 MSGP specifies that corrective action must be completed within 14 days (and before the next storm event if possible), un less infeasible (in which case the permit requires that the corrective action be taken as soon as practicable after the 14

- day timeframe but no longer than 45 days after discovery). While the proposed timeframe provides some flexibility where the 14 -day

re quirement is infeasible, the absolute time limit of 45 days may compromise the operator's ability to take appropriate corrective action if extensive corrective action is required.

A new or modified storm water, control system will often require significa nt time for design, permitting, construction, testing, and implementation. It is unreasonable to impose either a stringent 14

- day or 45 -day presumptive deadline. WM recommends that at least 60 days be allowed to install new or modified

controls if the 14 -d ay period is infeasible. For more extensive construction of new, or modified controls costing more than $10,000, we recommend that up to a year should be allowed for such installation to accommodate design, permitting, mobilization and construction. WM further recommends that a mechanism be provided to allow reasonable extensions to these time frames based upon documentation of adequate justification within the operating records of the site.

Response See responses to comments 0033.001.003 and 0040.001.00 8.

Comment ID 0092.001.004 Issue Category: 4.2

Author Name: Jeffrey Longsworth Corrective Actions Deadlines

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)2015 EPA MSGP Response to Comments June 4, 2015

257 FSWA's next significant comments address EPA's proposed corrective action mandates contained in Part 5. FSWA does not believe that there is any need for or justification for "immediate" corrective actions when the existing corrective action timing requirements favor taking such action before the next storm event when appropriate.

Response Because storm events are sometimes not forecasted until they are imminent (and sometimes are not forecasted at all), it is important and reasonably necessary that actio ns be taken immediately to begin to

address the corrective action

- triggering condition in order to minimize the discharge of pollutants in stormwater from the facility once a storm event does result in a discharge. EPA has also clarified that

“immediate” a ctions entail activities such as cleaning up any exposed materials that may be discharged in a storm event (e.g., through sweeping, vacuuming) or making arrangements (i.e., scheduling) for a new

BMP to be installed at a later date.

Comment ID 0092.001.0 29 Issue Category: 4.2

Author Name: Jeffrey Longsworth Corrective Actions Deadlines

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 4.2.1 requires "immediate" corrective actions. This is a new requirement for the MSGP, but it is unnecessary and should be deleted. Not only is it illogical to mandate immediate action (that day) if, for example, you receive laboratory results by m ail (or email) regarding a storm that occurred weeks ago that might indicate corrective action may be needed. Why should EPA mandate such immediacy when the information generating the need for corrective action clearly reflects a more random timing? In fact, the key requirements contained in Section 4.2.2 (take corrective action "before next storm event, if possible," and within 14 calendar days unless an appropriate reason is documented) addresses any issues or concerns regarding corrective action timing. That is how EPA has always approached this issue; when corrective action is required, take the action before the next storm event (i.e., potential pollutant discharge situation), within 14 days if more time is needed, or pursuant to a schedule documented a nd justified in the SWPPP.

Response See response to comment 0092.001.004.

Comment ID 0093.001.003 Issue Category: 4.2

Author Name: Amanda Aspatore Corrective Actions Deadlines

Organization: National Mining Association (NMA)

•The proposed corrective action deadlines are not reasonable. EPA should retain the existing deadlines from the 2008 MSGP. Additionally, EPA should remove the overly broad definition of "Corrective Action" from Appendix A of the MSGP.

Response EPA declines to remove the definition of “Corrective Action” from Appendix A of the MSGP because the definition may help permittees to understand what types of activities constitute corrective action for the purposes of meeting the requirements in the permit. The c orrective action

- triggering conditions are narrowly defined in the permit itself (Parts 4.1 and 4.2), and therefore, the concern regarding the broadness of the definition in Appendix A is not substantiated. See also responses to comments

0033.001.003 and 0 040.001.008.2015 EPA MSGP Response to Comments June 4, 2015

258 Comment ID 0093.001.010 Issue Category: 4.2

Author Name: Amanda Aspatore Corrective Actions Deadlines

Organization: National Mining Association (NMA)

The proposed deadlines for corrective actions in Part 4.2 are onerous and unworkable. Rather than finalizing them, EPA should retain the existing corrective action deadlines from Part 3.3 the 2008 MSGP. Part 4.2.1 of the proposed permit would require that facilities "immediately take all reasonable steps necessary to minimize or prevent the discharge until a permanent solution is installed and made operational," and it further clarifies that "immediately" requires action on the same day or on the following work day, if a problem is identified at a time during the work day when it is too late to initiate corrective action. In addition, part 4.2.2 of the proposed permit would require additional changes (beyond those that must be immediately implemented under part 4.2.1) before the next storm event if possible, and within 14 calendar days of discovery that such changes are necessary.

The proposed deadlines go far beyond what is currently required under the 2008 MSGP without sufficient justification for the cha nge. Under the existing permit, covered facilities were obligated to: (i) within 24 hours, document the discovery of any of the conditions in Parts 3.1 and 3.2; (ii) within 14 days, document any corrective actions to be taken to eliminate or further investigate the condition; and (iii) before the next storm event (as soon as practicable following that storm event), make any modifications to control measures. Those deadlines were adequately protective of water quality, and EPA has done nothing to show otherwise. Quite the contrary, EPA simply claims that the proposed deadlines "are similar" to the corresponding deadlines in the 2008 MSGP. See Fact Sheet at p. 37. This claim is demonstrably false. Even a cursory comparison of the two permits reveals many obvio us differences.

The existing deadlines under the 2008 MSGP are far more reasonable, realistic, and appropriate for general application across various industrial sectors. Under the existing permit, facilities already have a strong incentive to take prompt and comprehensive corrective action to protect water quality. For example, Part 3.5 states that "EPA will consider the appropriateness and promptness of corrective action in determining enforcement responses to permit violations." There is no need to impo se the unrealistic deadlines in the proposed permit. Moreover, what can be accomplished at a given facility will vary widely depending on the nature of the industrial activity, the size of the facility, the proximity of support facilities, etc. The mining industry is particularly unique, as other industrial sectors do not face the same logistical challenges caused by differences in location and infrastructure. To illustrate, often only a

limited number of staff are available at NMA's members' facilities who know where stormwater controls are and also know the locations of exploration drill hole roads. Staff simply cannot inspect all of these items at the frequency at which EPA would require, if they are also required to: (i) ensure that the proper personnel and equipment will be in place to start maintaining controls that same day; and (ii) prepare a correction report by the end of the next day. NMA is concerned that these unreasonable requirements

could lead to rushed decision

- making (e.g., to install inappr opriate control measures) and will pressure facilities to bypass other federally required safety procedures in an effort to try to meet the proposed, overly aggressive deadlines. Areas receiving significant runoff at surface coal mines, for example, must

b e inspected for safety concerns, and those concerns must be mitigated prior to safely addressing

stormwater control measures.

Although EPA's goal of requiring immediate action within 24 hours and further changes within 14 days is ambitious and may be workable for some facilities, it will be very difficult (if not impossible) for many mining facilities to meet those tight deadlines. Therefore, EPA should retain the existing deadlines from the 2008 MSGP rather than finalize the proposed revisions. EPA should also remove the definition of2015 EPA MSGP Response to Comments June 4, 2015

259 "Corrective Action" from the proposed MSGP, thereby limiting the applicability of the corrective action provisions in Part 4 to instances where one of the specified conditions occur or are detected.

Alternatively, if EPA c hooses to finalize the proposed revisions, NMA offers the following comments on Parts 4.1 and 4.2. EPA should revise the heading for Part 4.1 to read "Conditions Requiring Review to Determine if Modifications are Necessary." Modifications may not always be necessary to address the enumerated conditions. Indeed, the text of this proposed part recognizes this and hence, only requires a facility to review its SWPPP to determine whether revisions are necessary. To avoid any confusion regarding a facility's obli gations to actually revise its SWPPP, EPA should revise the heading accordingly. Additionally, EPA should clarify in the text of Part 4.2.1 what "all reasonable steps" means. EPA's Fact Sheet (at p. 37) states that "all reasonable steps" does not require t aking action when it is unsafe to do so (e.g., due to inclement weather). That text should appear in the permit itself.

Response See responses to comments 0033.001.003 and 0040.001.008, and the mining response to comment essay. EPA declines to insert the requested text from the fact sheet into the permit itself in the interest of keeping the permit more streamlined.

Comment ID 0094.001.014 Issue Category: 4.2

Author Name: Eric Fry Corrective Actions Deadlines

Organization: Peabody Energy

11) 4.2 Corrective Actions and Deadlines and 4.2.1 Immediate Actions. EPA should keep 2008 MSGP Part 3.3 because the deadlines and requirements proposed in this section are burdensome, unreasonable and if finalized, would produce many unintended consequenc es. Going beyond what is currently required under the 2008 MSGP without explaining why the changes are necessary fails the transparency test. EPA will sacrifice safety if the agency finalizes these unrealistic requirements on the coal mining industry.

Furt hermore, in Section 4.2.1 EPA should describe what is meant by "all reasonable steps."

Response See responses to comments 0033.001.003 and 0040.001.008, and the mining response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

260 

### Issue Category: Section 5.0

- SWPPP

- General Comments

Comment ID 0021.001.006 Issue Category: 5.0

Author Name: Lee Epstein SWPPP

- General Comments

Organization: Chesapeake Bay Foundation

Part 5
- The draft general permit requires the SWPPP to be completed prior to submitting a Notice of Intent (NOI) to come under the permit; it also notes at 5.4 that the Plan must be made available to the public. These are important and useful features, but it should be made clear that the Plan should be made available to the public prior to, or concomitant with the submission of an NOI, so that the public has the opportunity to comment on it within the 30 day permit review period, as appropriate. Otherwise , this most important component of the General Permit, which sets out how a facility will manage its stormwater, may not be reviewed by the public prior to permit coverage beginning.

Response The final 2015 MSGP lays out the option of having a SWPPP available online at a URL, or providing certain aspects of the SWPPP to be included in the NOI. Therefore, the SWPPP or the most relevant requirements in the SWPPP will be available to EPA at the same time the NOI is submitted to EPA. The public will have acc ess to SWPPP information after the NOI is active through EPA’s ECHO tool. However, EPA does not consider it necessary for the public to review the SWPPP prior to permittee authorization because the SWPPP is not an effluent limitation. The permit contains the effluent limitations; the SWPPP is simply documentation of how the discharger intends to meet the effluent limitations in the permit. EPA provided an adequate opportunity for the public to comment on the effluent limitations contained in the permit, and by making the SWPPP or portions of the SWPPP available to the public after permit authorization, is providing ample means for the public to obtain information about the measures the discharger is using in an effort to comply with the effluent limitations in the permit. Previously this information was only available upon request to EPA.

Comment ID 0029.001.003 Issue Category: 5.0

Author Name: Kim Cox SWPPP

- General Comments

Organization: City of Portland Environmental Services

EPA should also identify how the SWPPP will address transitory construction periods. We suggest a limited term amendment to the SWPPP effective for the period of construction that is required to specifically include the erosion control BMPs the site. Preve ntion of track out of material, stockpile management and perimeter controls should be the minimum BMPs required.

Response If there is construction occurring at the industrial facility that is not covered under a separate permit (e.g., the Construction General Permit) and discharges from such activities commingle with discharges under the MSGP, the SWPPP must include the erosion and sediment controls that will be implemented consistent with the effluent limit in MSGP Part 2.1.2.5 regarding the implementation of erosion and

sediment controls.

Comment ID 0033.001.001 Issue Category: 5.0

Author Name: Eileen Sottile SWPPP

- General Comments

Organization: LKQ Corporation2015 EPA MSGP Response to Comments June 4, 2015

261 Streamlining of Stormwater Pollution Prevention Plan (SWPPP) documentation (i.e., facilities do not have to expound on their compliance with certain effluent limits). LKQ GAD supports this proposal.

Response EPA thanks the commenter for the support of streamlining the SWPPP documentation in the final 2015

MSGP.

Comment ID 0087.001.015 Issue Category: 5.0

Author Name: Kathleen Martin SWPPP

- General Comments

Organization: Alcoa Inc.

Section 5 Stormwater Pollution Prevention Plan (SWPPP)

• The proposed SWPPP requirements are onerous and do not serve the purpose of addressing the needs of storm water pollution prevention for certain facilities. Rather than having a one size fits all approach, EPA should implement a tiered approach breaking the requirements down to large and small facilities.

Response EPA disagrees that the SWPPP requirements are onerous. The SWPPP requirements are not changed substantially from previous versions of the permit. The amount and type of information required to be documented in the SWPPP is reasonable and appropriate to support the purpose of documenting how an operator’s selection, design, installation, and implementation of control measures achieve applicable effluent limits. Additionally, EPA will be making available an updated SWPPP template to assist MSGP permittees in developing a SWPPP consistent with the requirements in the new permit.

Regarding the suggestion to break out the requirements based upon facility size, because the permit’s

effluent limits are not based upon facility size, the requirements to document the controls to be implemented to meet the effluent limits in the SWPPP should not be based upon facility size.

Comment ID 0087.001.022 Issue Category: 5.0

Author Name: Kathleen Martin SWPPP

- General Comments

Organization: Alcoa Inc.

Section 5.5 Additional Documentation Requirements • Alcoa believes this documentation requirement has the potential to be extensive. Some of Alcoa location's SWPPP plans take up a 3" binder, without including many of the items listed in this section. Rather than requiring that these records be kept with t he plan, facilities should be able to reference where these records may be kept and only an abbreviated list of critical items retained with the plan. In addition, if EPA is proposing that these additional items be made available to the public through a URL, Alcoa strongly objects to this.

Response According to 40 C.F.R. § 122.41(j)(2), “the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip charge recordings for continuo us monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years form the date of the sample, measurement, report, or application.” 40 C.F.R. § 122.41(i)(2) states that the permittee must allow the Director or any authorized representative to “have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit...” With those two provisions, EPA decided that it2015 EPA MSGP Response to Comments June 4, 2015

262 would be more efficient for these records be kept with the SWPPP, so that when inspections occur, all records will be in one place. EPA also notes that the “Additional Documentation Requirements” in Part 5.5 were all required to be included in the SWPPP under the 2008 MSGP. For existing dischargers, EPA anticipates that only minor SWPPP updates will be needed, and these updates are not expected to be

onerous.

Regarding the comment on making the SWPPP publicly available, see response to comme nt ID

0053.001.002.

Comment ID 0092.001.005 Issue Category: 5.0

Author Name: Jeffrey Longsworth SWPPP

- General Comments

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

FSWA also has provided comments to help streamline EPA's proposed stormwater pollution prevention plan requirements, make them more efficient, and ensure that the draft MSGP and its Fact Sheet language

are consistent.

Response EPA has responded to the aforementioned comments elsewhere, thus no response is required to this

comment.

Comment ID 0092.001.031 Issue Category: 5.0

Author Name: Jeffrey Longsworth SWPPP

- General Comments

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 5
- Stormwater Pollution Prevention Plans (SWPPP)

Generally, EPA should relate and communicate that all SWPPP requirements

- from site descriptions to identification of pollutant sources etc.

- should be limited to and directly related to efforts to reduce the stormwater discharge of pollutants associated with that facility's industrial activity through a point source to waters of the U.S. So, for example, mapping locations where run

- on from adjacent property enters the site (Section 5.2.2) may be helpful but should not be considered an "enforceable mandat e." Other examples are provided below, but do not reflect the entire list of such situations. EPA must assess every mandate relative to its CWA authority to permit pollutant discharges.

Section 5.2 states: Where your SWPPP refers to procedures in other facility documents, such as a Spill Prevention, Control and Countermeasure (SPCC) Plan or an Environmental Management System (EMS), copies of the relevant portions of those documents must be kept with your SWPPP.

In fact, the last phrase should be amended to state "kept on site" to be consistent with the Fact Sheet explanation that facility does not need to recreate the same text from such other documents, but can merely refer to them provided that those other documents are appropriately available.

Resp onse EPA agrees with the commenter that the SWPPP requirements should relate to stormwater discharges of pollutants associated with industrial activity through a point source to waters of the U.S. EPA maintains2015 EPA MSGP Response to Comments June 4, 2015

263 that all SWPPP requirements in the 2015 MSGP do relate to stormwater discharges of pollutants associated with industrial activity through a point source to waters of the U.S. Regarding the concern about mapping locations of run

- on from adjacent property, EPA notes that the requirement is limited to

s ources of run

- on that contain “significant quantities of pollutants.” The facility is required to control any stormwater discharges from its site that come into contact with industrial activities. Because run -on containing significant pollutants is the responsibility of the operator of the industrial facility and can affect water quality in receiving waterbodies, it must be taken into consideration. It is true that it is helpful

for EPA to also know where run

- on comes from, in case a facility is violating p ermit conditions because

of such run

- on, but it is even more helpful for the facility to know what comes onto the property so that it can be adequately addressed in order to minimize pollutant discharges from the facility to waters of the

U.S.

Regarding the comment that EPA should revise MSGP Part 5.2 to clarify that the SPCC or EMS plans must be “kept on site”, EPA disagrees. Per Part 5.4, SWPPPs can be kept “in any accessible format”, and therefore it would not be consistent for EPA to require them be kept “on site.” Part 5.4 also provides that documents can be “incorporated by reference.” Therefore, the permit already makes clear that the SWPPP

need not “recreate the same text from such other documents.”

Comment ID 0092.001.036 Issue Category: 5.0

Author Name: Jeffrey Longsworth SWPPP

- General Comments

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 5.5 sets forth additional documentation that is required to be kept with the facility's SWPPP. While FSWA does not object to any of the requirements per se, if EPA is asserting that such other documents are a part of the SWPPP and must also be publ icly available via the internet, FSWA strongly objects to this mandate. The Permit and Fact Sheet language requires appropriate clarification.

Response The information required to be included in the SWPPP per 5.5 must be included in the publicly availab le SWPPP if a URL for the SWPPP is provided on the NOI form to meet the SWPPP public availability requirement. If instead the permittee is meeting the SWPPP public availability requirement by providing selected SWPPP information directly on the NOI form, the information in Part 5.5 will not be publicly

available.

See also response to comment 0053.001.002.2015 EPA MSGP Response to Comments June 4, 2015

264 

### Issue Category: Section 5.1

- Person Responsible for SWPPP Prep

Comment ID 0085.001.017 Issue Category: 5.1

Author Name: Zachary Griefen et al. Person Responsible for SWPPP Prep

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's SWPPP to be online and readily available to EPA and the public relates to several sections of the proposed MSGP and the NOI Form, as follows:

•Proposed MSGP § 5.1 Person(s) Responsible for SWPPP Prepara tion. "[...] If EPA concludes that the SWPPP is not in substantial compliance with Part 5.2 of this permit, EPA may require the SWPPP to be reviewed, amended as necessary, and certified by a Professional Engineer"

o Commenters note that neither EPA nor cit izen enforcers can make this conclusion without having had an opportunity to review the SWPPP, which requires that the SWPPP be publically available online.

Response See response to comment 0021.001.006.2015 EPA MSGP Response to Comments June 4, 2015

265 

### Issue Category: Section 5.2

- Contents of Your SWPPP

Comment ID 0041.001.004 Issue Category: 5.2

Author Name: Jason Ulseth & Jessica Sterling Contents of Your SWPPP

Organization: Chattahoochee Riverkeeper

Part 5.2

- The proposed draft permit states that EPA may require the SWPPP to be reviewed and amended as necessary and certified by a professional Engineer or a Professional Geologist. We suggest that all SWPPPs should be required to be certified by a Prof essional Engineer, Professional Geologist or other Certified Design Professional to ensure that SWPPPs are site specific and stormwater controls are appropriate for the site and pollutants of concern. This could be incorporated into the 2013 MSGP in phases , starting with facilities that have effluent limits.

Response EPA disagrees that in all cases a SWPPP must necessarily be developed by a professional engineer or geologist. Provided the SWPPP is developed by a qualified person (defined in the 2015 MSGP as “ a person knowledgeable in the principles and practices of industrial stormwater controls and pollution prevention, and possesses the education and ability to assess conditions at the industrial facility that could impact stormwater quality, and the education and ability to assess the effectiveness of stormwater controls selected and installed to meet the requirements of the permit”), EPA is confident that the SWPPP will be developed consistent with the requirements in the permit. However, in the event EPA finds that the SWPPP is not in compliance with the permit, EPA reserves the ability to require the SWPPP to be reviewed and amended as necessary by a person with professional qualifications (i.e., a Professional Engineer or Professional Geologist).2015 EPA MSGP Response to Comments June 4, 2015

266 

### Issue Category: Section 5.2.2 - Site Description

Comment ID 0087.001.016 Issue Category: 5.2.2

Author Name: Kathleen Martin Site Description

Organization: Alcoa Inc.

Section 5.2.2 Site Description (Site Map) • The language in this section is overly prescriptive. To prepare the required site map for a very large facility, for example, a 300 acre site with approximately 160 acres under roof, leaving 140 acres to identify the impervious areas, vehicle and equipme nt maintenance, loading and unloading areas, storage tanks (all are inside secondary containment), roads, rail lines, and machinery, would take tremendous effort. Further, it would be very difficult to be 100% accurate and the map would have little signifi cance to the effectiveness of the overall SWPPP. Rather than requiring this, the same result could be achieved with a narrative provided for each basin. The maps as required by the draft MSGP would be extensive, require a considerable effort to put together, and be difficult to maintain with little significance to the

effectiveness of the overall SWPPP.

Response EPA agrees with the commenter that precise details about every physical feature are not needed for an effective SWPPP, but disagrees that the re quirements in Part 5.2.2 are overly prescriptive. Part 5.2.2 does not require a 100 percent accurate site map. The information required to be included in Part 5.2.2 all relates to areas or activities where stormwater quality could be impacted by industrial activities, and as such is appropriate for inclusion on a site map within the SWPPP.

Comment ID 0093.001.021 Issue Category: 5.2.2

Author Name: Amanda Aspatore Site Description

Organization: National Mining Association (NMA)

III. SWPPP Part 5.2.2: EPA should clarify that "boundaries of the property" and "size of the property in acres" refer only to those areas of the property requiring permit coverage. Likewise, EPA should clarify that "impaired waters" here are those Section 303(d) wate rs listed by the appropriate legal authority. Further clarity is also needed with respect to which stormwater control measures must be mapped, as EPA has deleted the qualification of "existing structural" control measures in the proposed language. Finally, EPA should provide explanations for why it made these changes.

Response EPA does intend that the entire property and size of the entire property be identified on the site map, not just the areas that are covered under this final 2015 MSGP. The purpose of having the entire property identified on the site map is so that users of the SWPPP, and EPA, can identify where potential pollutants, controls, and other information identified on the site map are in relation to the rest of the property, in an effort to ensure that any stormwater discharges to water of the U.S. are adequately controlled and minimized under the permit.

In the final 2015 MSGP, a discharge to an impaired water occurs if the first water of the U.S. to which you discharge is identified by a state, tribe, or EPA as not meeting an applicable water quality standard, and requires development of a total maximum daily load (TMDL) (pursuant to Section 303(d) of the Clean Water Act), or is addressed by an EPA

- approved or established TMDL, or is not in either of the those categories but the waterbody is covered by pollution control requirements that meet the2015 EPA MSGP Response to Comments June 4, 2015

267 requirements of 40 CFR 130.7(b)(1). This definition is more comprehensive than that suggested by the commenter, since the CWA and its implementin g regulations consider waters that have an approved TMDL and waters covered under alternative pollutant control requirements, but not on the 303(d) list, as impaired. EPA notes that all stormwater control measures must be mapped, including existing and pl anned, which is why the qualifier “existing structural” was not included in the proposed MSGP. Such a qualification is especially important for mining operations, which have changing controls associated with earth disturbances at a mine, which must be addressed in the SWPPP in order to ensure discharges of pollutants to waters of the U.S. will be adequately controlled and minimized.2015 EPA MSGP Response to Comments June 4, 2015

268 

### Issue Category: Section 5.2.3 - Summary of Potential Pollutant Sources

Comment ID 0087.001.017 Issue Category: 5.2.3

Author Name: Kathleen Martin Summary of Potential Pollutant Sources

Organization: Alcoa Inc.

Section 5.2.3 Summary of Potential Pollutant Sources • The requirement to summarize potential pollutant sources is overly burdensome. Everything from buildings to all activities in the dozen or so drainage basins for large facilities on many acres of land make this overly detailed and high risk items that should be examined may get lost in the detail.

Response EPA disagrees with the commenter. Simply focusing on the so

- called “high risk items” could cause other seemingly insignificant items to fall to the wayside, making them potentially more problematic w hen combined with others than a single high

- risk item. EPA has developed guidance that provides more information about identifying potential pollutant sources in the SWPPP (i.e., the SWPPP guide and in the industrial sector fact sheets).

Comment ID 0092. 001.032 Issue Category: 5.2.3

Author Name: Jeffrey Longsworth Summary of Potential Pollutant Sources

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

In Section 5.2.3, EPA initially (and correctly) relates potential pollutant sources to industrial activities exposed to stormwater or allowable non

- stormwater that may lead to a discharge. However, EPA then

states that:

For structures located in areas of industrial activity, you must be aware that the structures themselves are potential sources of pollutants. This could occur, for example, when metals such as aluminum or copper

are leached from the structures as a result of acid rain.

Merely because a s tructure may exist within an area where industrial activity may occur does not make that structure "associated with industrial activity," allowing EPA, for example, to attempt to control acid rain impacts on non

- industrial structures. The same logic that EPA has applied to exempt administrative buildings and parking lots would also apply to galvanized security fences or other structures that could
generate non

- industrial pollutants not otherwise designated for permitting pursuant to CWA Section 402(p)(2).

Response EPA disagrees that pollutants in stormwater discharged from structures themselves within areas of industrial activity cannot be considered to be “associated with industrial activity.” In the Conditional No Exposure Exclusion from Industrial Acti vity fact sheet, revised in 2005, EPA states “Particulate matter or visible deposits of residuals from roof stacks and/or vents not otherwise regulated (i.e., under an air quality control program) and evident in stormwater outflow are considered exposed. L ikewise, visible “track out” (i.e., pollutants carried on the tires of vehicles) or windblown raw materials is considered exposed.” The language in Part 5.2.3 alerts permittees to the potential for other sources of pollutants to contribute pollutants to stormwater discharges associated with industrial activity, and thus the need to ensure that the discharge of any pollutants from those sources is minimized or controlled appropriately.2015 EPA MSGP Response to Comments June 4, 2015

269 Issue Category: Section 5.2.3.1

- Activities in the Area

Comment ID 0087.001.018 Issue Category: 5.2.3.1

Author Name: Kathleen Martin Activities in the Area

Organization: Alcoa Inc.

Section 5.2.3.1 Activities in the Area • Alcoa recommends this section be revised to limit the required description to: "A list of industrial activities exposed to storm water that would contribute to storm water pollution (e.g. material storage; equipment fueling..."

Response EPA’s intent for this requirement is to be inclusive of any industrial activities that come into contact with stormwater, as EPA expects that these activities could contribute to stormwater pollution. Therefore, EPA declines to make the suggested revision.2015 EPA MSGP Response to Comments June 4, 2015

270 Issue Category: Section 5.2.3.2 - Pollutants

Comment ID 0087.001.019 Issue Category: 5.2.3.2

Author Name: Kathleen Martin Pollutants

Organization: Alcoa Inc.

Section 5.2.3.2 Pollutants • Alcoa disagrees with the language of "could be exposed to rainfall or snownielt.[sic]" This section should be amended to "likely contribute to storm water pollution..." The current draft language could pull in a storage tank that is located in secondary containment and is regularly inspected, but has little to no potential to impact stormwater discharges. These efforts should focus on items that "likely contribute to storm water pollution."

Response EPA declines to make the change, as the requirement i s appropriately limited to pollutants that “ could be exposed to rainfall/snowmelt and could be discharged... ” Regarding the commenter’s concern about the language pulling in storage tanks, EPA clarifies that a storage tank that is not deteriorating and not leaking is not considered a potential pollutant source for the purpose of Part 5.2.3.2. The requirement to document pollutants in the SWPPP is limited to areas of the facility where pollutants could be exposed and discharged.2015 EPA MSGP Response to Comments June 4, 2015

271 Issue Category: Section 5. 2.3.3 - Spills and Leaks

Comment ID 0069.001.002 Issue Category: 5.2.3.3

Author Name: Philip McNeely Spills and Leaks

Organization: City of Phoenix, Office of Environmental Programs

Part 5.2.3.3

- Spills and Leaks. The phrase "oil or toxic or hazardous pollutants" is used here, but there is no definition provided in the Appendix for toxic pollutants, substances, or chemicals

-- only toxic wastes, presumably as defined at 40 CFR 261.4. Is toxic pollutant here synonymous with definition provided in the Appendix A given for "toxic waste" and is a hazardous pollutant synonymous with "hazardous materials" as defined in the Appendix? As the terms are used in this permit, what is the differen ce between a toxic pollutant and a pollutant? Does oil as referenced in this section include refined petroleum fuel products? Also see comment in Definitions section under "Oil".

Response EPA has included the following definition for “Hazardous Material s”, “Hazardous Substances”, and “Toxic Materials” in Appendix A of the 2015 MSGP: “any liquid, solid, or contained gas that contain properties that are dangerous or potentially harmful to human health or the environment. See also 40 CFR §261.2.” EPA considers the terms “toxic pollutants” and “hazardous pollutants” to be synonymous with “toxic materials”. . The CWA references the list of toxic pollutants at §307(a)(1), and these pollutants all meet the MSGP definitions for “Hazardous Materials”, “Hazardous Substances” and “Toxic Materials.” However, there are other types of pollutants that are not necessarily considered to be toxic. For example, total suspended solids are naturally occurring and when discharged at or below natural background levels,

are not considered to be a “Toxic Material” as defined in the MSGP. EPA has not included a definition for “Oil” in the 2015 MSGP, but refers the commenter to the definition of oil in 40 CFR §112.2: “ Oil means oil of any kind or in any form, including, but not limit ed to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oi l mixed with wastes other than dredged spoil.”

Comment ID 0087.001.020 Issue Category: 5.2.3.3

Author Name: Kathleen Martin Spills and Leaks

Organization: Alcoa Inc.

Section 5.2.3.3 Spills and Leaks • The draft language to document where potential spills and leaks could occur is overly broad, and extremely difficult to achieve since there could be an infinite number of "potential spills." The requirement should be limited to listing actual spills only

.

Response EPA disagrees with the comment, and thus declines to make the change in the final 2015 MSGP. The requirement is limited to areas where potential spills and leaks could contribute pollutants to stormwater discharges (i.e., where the spill mate rial could end up in a receiving waterbody). Thus, this should be limited to areas of industrial activity where a spilled material could reach the path of a stormwater discharge (as opposed to anywhere and everywhere on the site). EPA also recognizes that such documentation will be based on the best professional judgement of the SWPPP preparer, since knowing with 100% accuracy where future spills may occur may not be possible.2015 EPA MSGP Response to Comments June 4, 2015

272 Comment ID 0092.001.033 Issue Category: 5.2.3.3

Author Name: Jeffrey Longsworth Spills and Leaks

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

EPA unnecessarily confuses the key determinations to be made by Section 5.2.3.4 (Spills and Leaks) when it states in the accompanying "Note" that "[s]ignificant spills and leaks include, but are not limited to, releases of oil or hazardous substances in excess of" reportable quantities. EPA already has made the determination under 40 CFR §§ 110, 117, and 302 that spills or leaks in excess of reportable quantities are environmentally significant and require reporting and other response actions. Hence, EPA sh ould remove the language "but not necessarily limited to" in order to avoid confusion over what is "significant." The MSGP should not be a tool for expanding EPA's authority under those other regulatory programs by lowering thresholds for reporting and appropriate response or expanding the list of materials subject to reporting or response.

Response EPA contends that, while spills or leaks as defined under 40 C.F.R. §§ 110, 117, and 302 may be considered environmentally significant according to those suc h regulations, other spills and leaks outside of those regulations may also be environmentally significant for the purposes of documenting spills and leaks under the MSGP, and ultimately controlling or minimizing the discharge of pollutants from such

sites to waters of the U.S. For both technology

- based reasons and water quality

- based reasons, EPA has the authority to require more stringent control methods than what is provided for in 40 C.F.R. §§ 110, 117, and 302 in order to protect surface water quality from stormwater discharges authorized under the MSGP. For these reasons, EPA declines to make change requested by the commenter.2015 EPA MSGP Response to Comments June 4, 2015

273 Issue Category: Section 5.2.3.6

- Sampling Data

Comment ID 0031.001.003 Issue Category: 5.2.3.6

Author Name: Anthony Grieggs Sampling Data

Organization: Los Alamos National Security (LANS)

2. Section 5.2.3.6 Sampling Data: The proposed 2013 MSGP requires facilities to summarize all stormwater discharge sampling data collected at the facility during the previous permit term. Please provide clarification on what "summarize" means with regard to specific information and data to be included and provide specific examples or format. Complex facilities could potentially have a large amount of data collected over the five years of permit coverage under the 2008 MSGP.

Response EPA added the following to the fact sheet to clarify what “summarize” means: “ Such a summary will support the identification of potential pollutants and pollutant sources at a facility and also the selection of source control practices to meet permit limits. The summary must include an adequately descriptive narrative and may also include data table/figures. Narrative summaries only are appropriate where available data is very limited or where data results and findings are otherwise easily and concisely conveyed in a brief paragraph. Summaries utilizing table s or charts are appropriate where more data are available. New dischargers must provide a summary of any available stormwater discharge sampling data that they may have, including the methods used to collect the data and the sample collection

location.”

Comment ID 0042.001.005 Issue Category: 5.2.3.6

Author Name: Joshua Rodriguez Sampling Data

Organization: District Department of the Environment

Part 5.2.3.6 Contents of Your SWPPP; Sampling Data DDOE agrees and supports the requirement to summarize sampling data from the previous term and include within the revised SWPPP. This requirement will provide another line of evidence when reviewing an applicant's coverage under the MSGP.

Response

EPA t hanks the commenter for the support of the final 2015 MSGP.2015 EPA MSGP Response to Comments June 4, 2015

274 

### Issue Category: Section 5.2.4 - Stormwater Controls

Comment ID 0021.001.007 Issue Category: 5.2.4

Author Name: Lee Epstein Stormwater Controls

Organization: Chesapeake Bay Foundation

Part 5.2.4

- A crucial part of this section, which pertains to control measures on site which are necessary for meeting technology

- based and water quality

- based effluent limits, should be the direct connection which must be made with any TMDLs on waters th at might be affected by the permitted facility. In accordance with Clean Water Act regulations, the section should clearly state that control measures must be chosen or designed to be consistent with the assumptions and requirements of applicable TMDLs [FN 4].

[FN4] 40 C.F.R. §122.44(d)(1)(vii)(B) (NPDES permits for discharges to waters for which a TMDL has been established must be "consistent with the assumptions and requirements of any available wasteload allocation for the discharge...".).

Response

E PA agrees with the commenter that control measures must be selected with respect to being consistent with the assumptions and requirements in any applicable TMDL and applicable wasteload allocation. This intent is reflected in Part 5.2.4, which requires th e documentation of “the location and type of control measures specifically chosen and/or designed to comply with... water quality

- based effluent limits in Part 2.2....” This includes any additional measures that EPA informs the discharger are necessary for

dis charges to be consistent with the assumptions and requirements of an applicable TMDL and its wasteload allocation, as specified in MSGP Part 2.2.2.1.

Comment ID 0070.001.011 Issue Category: 5.2.4

Author Name: Beth Goodnough Stormwater Controls

Organization: Western Fuels Association Inc.

Part 5.2.4 is new, and the final paragraph is both confusing and redundant. It is introduced in the text after Part 2, which caused confusion when reading Part 2. When reading part 2, the meaning of the asterisk

behind some items but not others was confusi ng. Part 5.2.4 is adequate without the final paragraph.

Response Part 5.2.4 of the 2015 MSGP is substantially similar to Part 5.1.4.1 of the 2008 MSGP, and thus is not

new.

Regarding the final paragraph in Part 5.2.4, EPA clarifies that the intent is to streamline documentation under the MSGP. The paragraph is stating that any effluent limits that are self

- explanatory or do not need to be expounded upon can simply be copied directly from the permit itself into the SWPPP. For example,

the effluent limit requirement in Part 2.1.2.3 to clean “catch basins when the depth of debris reaches two

thirds (2/3) of the sump depth and keeping the debris surface at least six inches below the lowest outlet pipe” can be copied in pasted into the part of the SWPPP docu menting control measure maintenance, and does not necessitate additional discussion, expansion, or description in the SWPPP.2015 EPA MSGP Response to Comments June 4, 2015

275 

### Issue Category: Section 5.2.5 - Schedules

Comment ID 0070.001.012 Issue Category: 5.2.5

Author Name: Beth Goodnough Schedules

Organization: Western Fuels Association Inc.

Part 5.2.5.1. While Part 2.1.2.8 appropriately limits SWPPP training to those who are responsible to implement activities necessary to meet the condition of this permit (e.g. inspectors, maintenance personnel, and the pollution prevention team). Part 5.2.5.1 inappropriately broadens that SWPPP training by requiring Part 2.1.2.8 employee training plus such training for employees who have duties in areas of industrial activities subject to this permit. At our operation, that employees with duties in SWPPP are as would be all the heavy equipment operators, some contractors, exploration drillers and pumpers, loggers, and support/service employees serving those activities. We recommend that both final bullets in Part 5.2.5.1 be modified to require the frequency/sc hedule for those individuals identified in Part 2.1.2.8, and a log of the dates they received their allotted training.

Response EPA agrees with the commenter that the employee training language in Parts 2 and 5 should be

consistent. Part 5.2.5.1 has been revised to be consistent with Part 2.1.28 which now reads: “ The frequency/schedule of training for employees who work in areas where industrial materials or activities are exposed to stormwater, or who are responsible for implementing activities necessary to meet the conditions of this permit.”

Comment ID 0092.001.034 Issue Category: 5.2.5

Author Name: Jeffrey Longsworth Schedules

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Section 5.2.5.1 can be shortened significantly by merely referencing the technology

- based effluent limits required in Part 2. EPA's Part 5 descriptions of the Part 2 requirements are inconsistent with those mandates and should be eliminated, allowing Part 2 to speak for itself and this section to merely list the controls identified by Part 2 to be documented in the SWPPP. The following section, Section 5.2.5.2 is a reasonable example of the MSGP merely describing the SWPPP mandates associated with Part 3, b ut without unnecessarily repeating or summarizing each Part 3 requirement.

Response EPA disagrees with the comment, and thus declines to make the suggested changes in the final 2015 MSGP. Part 2 of the MSGP contains the effluent limits that must be met, while Part 5.2.5.1 contains the SWPPP documentation requirements for these effluent limits. For some of the Part 2 effluent limits, additional explanatory text regarding what must be documented in the SWPPP was needed so that permittees fully understand w hat the required minimum document must entail. . Thus Part 5.2.5.1 appropriately expounds on the specific documentation that the permit requires with regard to controls measures designed and selected to meet the effluent limits.2015 EPA MSGP Response to Comments June 4, 2015

276 

### Issue Category: Section 5.3

- SWPPP Signature

Comment ID 0066.001.017 Issue Category: 5.3

Author Name: Timothy Carlstedt SWPPP Signature

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 5.3 Required SWPPP Modifications This provision provides that a discharger must modify his or her SWPPP based on the corrective action and deadlines required under Part 4.2 and documented under Part 4.3 "such that the triggering conditions for corrective action in Part 4.1 do not reoccur." In light of the inherent variability in storm events and stormwater discharges, UWAG suggests that the same or similar triggering conditions could reoccur even after corrective measures have been diligently implemented and documented and a SWPPP modified accordingly. UWAG, therefore, requests that EPA delete the clause quoted above from the 2013 MSGP.

Response EPA agrees with the commenter that there are triggering conditions that could reoccur after corrective

act ion measures have been implemented and documented in the SWPPP. EPA also recognizes that it is not always possible for a permittee to prevent the recurrence of an issue triggering a corrective action (e.g., unanticipated spill events). EPA therefore modified Part 4 of the MSGP using the approach from the 2008 MSGP where there are two differentiated corrective action outcomes. In place of the proposed “ 4.1 Conditions Requiring SWPPP Review and Revision to Eliminate Problems ”, EPA inserted “4.1 Conditions Requiring Review and Revision to Eliminate Problem” and “4.2 Conditions Requiring Review to Determine if Modifications Are Necessary”

.2015 EPA MSGP Response to Comments June 4, 2015

277 

### Issue Category: Section 5.4

- SWPPP Availability

Comment ID 0031.001.004 Issue Category: 5.4

Author Name: Anthony Grieggs SWPPP Availability

Organization: Los Alamos National Security (LANS)

3. Section 5.4.1 SWPPP Posting on the Internet: The proposed 2013 MSGP requires SWPPP updates to be posted no later than 45 days after conducting the fourth (i.e., final) routine facility inspection for the year required in Part 3.1. For large complex facilities with multiple SWPPPs this could result in a large amount of documentation to update and upload onto a URL in 45 days.

Recommendation: It is recommended that large complex facilities having numerous sectors and/or numerous SWPPPs be allowed 60 days after conducting the final routine facility inspection for the year required in Part 3.1 to update the URL.

Response EPA disagrees that the requirement to update the SWPPP information once per year is burdensome. If operators of permitted facilities have difficulty uploading updated SWPPP documentat ion onto a URL once per year, there is the option to instead provide an annual update of selected SWPPP information directly in the NOI, which simply requires text from the SWPPP to be copied and pasted on the form (and does not require uploading any documents). Because operators are responsible for maintaining an updated SWPPP in response to corrective actions, 45 days is more than sufficient to either upload an updated SWPPP on a URL or to copy and paste updated information onto the Change NOI form.

Com ment ID 0033.001.005 Issue Category: 5.4

Author Name: Eileen Sottile SWPPP Availability

Organization: LKQ Corporation

Public accessibility to SWPPP information, either by posting on the Internet or by incorporating salient

information into the NOI.

Response No response required.

Comment ID 0033.001.007 Issue Category: 5.4

Author Name: Eileen Sottile SWPPP Availability

Organization: LKQ Corporation

However, on the same note, we strongly disagree that just because this technology makes getting this data out to other sources easily, that this is a justification to do so. EPA claims that it would be best to have this reporting and monitoring data up for grabs by public and private entities (like environmental groups, NGOs, newspapers, and law firms) to help it enforce under the Clean Water Act (CWA or Act). Industry has a social contract with the EPA to enforce under this law because it has positions appointed by the President and oversight by our representatives in the US Congress. It is Congress that authored the CWA. If Congress had intended for the EPA to have outside enforcement assistance, it would have written this explicitly in the Act. If EPA does not have the funding and resources to enforce the Act, we suggest it go2015 EPA MSGP Response to Comments June 4, 2015

278 to Congress for this assistance, not Environmental NGOs and law firms who can use the attorney fee windfall section of the CWA to get way off base of the Act's primary intention.

F urther, whenever a citizen suit or non

- EPA entity to tasked to enforce the EPA's congressional mandate, it will have to do so via the justice system. The EPA will always have to be brought into these lawsuits. In 2011 the GAO was asked to examine (1) the trends in and factors affecting environmental litigation for fiscal years 1995 through 2010 and (2) Justice's recent costs and recent plaintiff payments from the Judgment Fund and EPA. To conduct this review, GAO obtained and analyzed data from two Justice databases on cases filed under 10 key environmental statutes. It determined that the EPA was using millions of tax payer dollars in these third party enforcement actions. Provisions like this, allowing the public to take regulatory data reporting for its o wn purpose will inevitably increase this litigation cost to the public and industry. LKQ GAD ask EPA to consider this, as well, rather than simply looking at the ease electronic reporting allows it to report this data on a website or public e

- mail.

In conclusion, LKQ GAD supports this regulation for reporting data to the EPA, but request this data to remained protected by the EPA. We have and continue to work with state and federal regulators in the recycling industry to come up with workable solutions to environmental problems. However, we do not want this information to be then used against us by third party entities with other motivations.

Response EPA has a duty to provide NPDES permit information to the public, as specified in CWA section 402(j). EPA is not requesting help enforcing the CWA via third

- party law suits, but EPA and permittees are required to furnish non

- CBI information to the public upon requested. Therefore, whether or not the information is available online does not protect a permittee from a third

- party lawsuit. EPA also notes that Congress did empower individual members or groups to enforce the CWA under CWA section 505. EPA furthermore notes that permit enforcement, including citizen suits, is outside the scope of this action,

whi ch is the re

- issuance of the MSGP.

Comment ID 0040.001.006 Issue Category: 5.4

Author Name: Kevin Walgenbach SWPPP Availability

Organization: National Ready Mixed Concrete Association (NRMCA)

6. SWPPP and Its Availability

- As noted above, NRMCA does not oppose electronic reporting, however NRMCA strongly opposes publishing any such information online or putting it into the public domain. Publishing and allowing public access to an employer's location specific Stormwater Pollution Prevention Plan (SWPPP) or "selected information" (78 FR 59676) poses a number of concerns.

a. First, a SWPPP often includes employee information not necessary or suited for public consumption. Employee privacy p rotection is a very serious issue. Divulging private employee information needs to be avoided at all intervals when adding such information into the public domain.

b. Second, NRMCA questions what, if any, environmental benefit is achieved by putting s uch information online and making it available in the public domain. Currently, there are avenues that qualified professionals and citizens use to obtain a site's SWPPP or selected information. Changing these procedures will not increase environmental bene fits, it will instead add security concerns to ready mixed concrete plants. Currently, ready mixed concrete plants are required to report to their local fire departments, local emergency planning committees (LEPCs), and state environmental response

commiss ions (SERCs) and EPA, information relating to chemicals used and housed on ready mixed concrete plant sites. This same information is obtained and utilized by qualified professionals who understand the information's meaning. In addition to chemical use and location, only qualified2015 EPA MSGP Response to Comments June 4, 2015

279 professionals and necessary personnel should be allowed access to a site's SWPPP or selected information that have the knowledge to appropriately analyze and understand the plan's specifics. Allowing unqualified individuals access to SWPPPs or selected information will undoubtedly result in unfounded, false, misleading, arbitrary, and/or costly environmental claims, heightened security risks and allegations

with no added environmental benefit.

c. Third, by requiring the Notice of Intent (NOI) to contain either a URL of the SWPPP or the listed selected information, EPA is wrongly assuming that the SWPPP or the selected information is static. A site specific SWPPP and the selected information are very fluid and can be constantly c hanging documents. Through inadvertently requiring the SWPPP and the selected information to become a static document, EPA is forcing employers to display information not indicative of a specific site's SWPPP. This as well, will undoubtedly result in unfou nded, false, misleading, arbitrary, and/or costly environmental claims, heightened security risks and allegations with no added environmental benefit.

Response See response to comment 0053.001.002 and 0033.001.007. The 2015 MSGP addresses concerns a bout privacy and security concerns associated with the public availability of SWPPP information by not requiring the permittee to make public “confidential business information” or “restricted information,” as defined in Appendix A. With this provision, se nsitive security information (such as employee information not suited for public consumption) would not be required to be divulged to the public.

In response to comment c. above, EPA disagrees. EPA does not assume that the information provided in the SWPPP is static, which is why the final 2015 MSGP requires an annual update to the SWPPP and associated documents. Operators may update the SWPPP online more frequently if they so desire.

Comment ID 0041.001.005 Issue Category: 5.4

Author Name: Jason Ulseth & Jessica Sterling SWPPP Availability

Organization: Chattahoochee Riverkeeper

Part 5.4

- We support EPA's modification in the 2013 MSGP that improves the accessibility of SWPPPs. This will greatly improve the ability of the public to gain access to information about potentially harmful stormwater discharges and help them to protect local water resources.

Response EPA appreciates the commenter’s support for this provision in the final 2015 MSGP.

Comment ID 0042.001.006 Issue Category: 5.4

Author Name: Joshua Rodriguez SWPPP Availability

Organization: District Department of the Environment

Part 5.4 SWPPP Availability DDOE agrees and supports the increased emphasis on the public availability of applicant's stormwater pollution prevention plans (SWPPPs) via the internet. Additionally, the additional information required for the NOI, if not providing a SWPPP URL, is very advantageous to state agencies and inspectors when reviewing the NOI, preparing for inspections and prioritizing sites for compliance. DDOE recommends a permit condition asserting that providing the SWPPP for public access via the internet does not preclud e the applicant from submitting a copy of the SWPPP to other agencies as outlined in Part 9.2015 EPA MSGP Response to Comments June 4, 2015

280 Response EPA thanks the commenter for its support of the final 2015 MSGP. EPA agrees with the commenter that the SWPPP availability provision does not preclude a state agency from receiving SWPPPs, but has determined that it is not necessary to specify this through a permit condition, since the permit is focused on controlling or minimizing discharges of stormwater from sites engaged in industrial activity to wat ers of the U.S.

Comment ID 0051.001.002 Issue Category: 5.4

Author Name: John Hopewell & David Darling SWPPP Availability

Organization: American Coatings Association

2. ACA does not support the new requirement to make public Storm Water Pollution Prevention Plans (SWPPPs) by either providing a URL link or including all the required information in the NOI upon renewal, this is an unnecessary burden to industry and ACA s uggests EPA drop this requirement.

Response See response to comment 0053.001.002.

Comment ID 0060.001.003 Issue Category: 5.4

Author Name: Katherine Preston SWPPP Availability

Organization: Airports Council International

- North America (ACI

NA)

Section 5.4: SWPPP Availability "You must retain a complete copy of your current SWPPP required by this permit at the facility in any accessible format. A complete SWPPP includes any documents incorporated by reference and all documentation supporting you r permit eligibility pursuant to Part 5.2.6 of this permit, as well as your signed and dated certification page. Regardless of the format, the SWPPP must be immediately available to facility employees, EPA, a state or tribe, the operator of an MS4 receivin g discharges from the site; and representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) at the time of an onsite inspection. Your current SWPPP or certain information from your

current SWPPP described b elow must also be made available to the public (except any confidential business information (CBI) or restricted information (as defined in Appendix A)), but you must clearly identify those portions of the SWPPP that are being withheld from public access; to do so, you must comply with one of the following two options"

We do not agree with requiring public access to all of the information in a SWPPP (as further detailed in 5.5 of the draft MSGP). The SWPPP and associated documentation, including monitoring and corrective actions, is a condition of the permit and should be between the regulatory agency and the permittee. If the results are detrimental to the public or harmful to the environment, then a notice of violation or consent order can be issued by t he regulating agency. Additionally, an airport's SWPPP will contain drainage system diagrams and other facility details that present security risks if made readily available to the public. SWPPPs contain contact lists, including names and after

- hours telep hone numbers that present privacy concerns if publically published. This requirement should be removed.

Section 5.4.1: SWPPP Posting on the Internet "If you provide a URL in your NOI where your SWPPP can be found, and maintain your current SWPPP

at this URL, you will have complied with the public availability requirements for the SWPPP. To remain2015 EPA MSGP Response to Comments June 4, 2015

281 current, you must post any SWPPP modifications, records and other reporting elements required for the previous year at the same URL as the main body of the SWPP P. The SWPPP update shall be no later than 45 days after conducting the fourth (i.e., final) routine facility inspection for the year required in Part 3.1. If you did not provide a SWPPP URL in your NOI, you may reopen your NOI at any time subsequent to

yo ur original NOI submittal to add a URL where your current SWPPP can be found. You are not required to post any confidential business CBI or restricted information (as defined in Appendix A) (such information may be redacted), but you must clearly identify those portions of the SWPPP that are being withheld from public access. CBI may not be withheld from those staff cleared for CBI review within EPA, USFWS or NMFS."

Please see the comment on Section 5.4 above. Requiring that a website version of the SWPPP be kept updated for every minor modification that is made to the master SWPPP presents a risk of technical non

compliance with the permit for even the most minor oversight in web document updating. This requirement should be removed.

Section 5.4.2: SWPPP Information Provided on NOI Form "If you did not provide a SWPPP URL in your NOI, your NOI must include the information required by Part 7.3. Irrespective of this requirement, EPA may provide access to portions of your SWPPP to a member of the public up on request (except any CBI or restricted information (as defined in Appendix A))."

The option to provide limited SWPPP information, as detailed in Part 7.3 of the Draft MSGP, in lieu of posting the SWPPP on the web is fundamentally more feasible for airports. Part 7.3 does not require potentially sensitive information such as drainage system maps, contact lists, etc. to be included in the

NOI.

The airport industry is pleased to see an alternative that does not present potentially serious concerns regard ing public access to information that has security and privacy implications to airports.

Response See response to comment 0053.001.002, 0033.001.007, and 0040.001.006. EPA appreciates the commenter’s support for the option of providing limited SWPPP information directly on the NOI.

Comment ID 0070.001.013 Issue Category: 5.4

Author Name: Beth Goodnough SWPPP Availability

Organization: Western Fuels Association Inc.

Part 5.4.1 SWPPP Posting on the Internet. WFA The stormwater program overlaps with our SMCRA and the SPCC plan requirements. The SMCRA permit also requires this information be kept up to date and complete. We would prefer to have the SMCRA permit be the pr imary permit showing lands managed by NPDES versus SWPPP. That allows our industry to receive SMCRA required oversight when the outfalls are modified, replaced, removed, or change SMCRA categories. Carving out the overlapping SWPPP items from our SMCRA per mit in order to have a complete SWPPP plan posted on the internet will be redundant, difficult, confusing and costly. Having the SWPPP available for inspections and agency use, as proposed in Section 5.4 is adequate.

Response EPA understands that certain aspects of the MSGP overlap with requirements in SMCRA permits. For this reason, EPA has included the following provision Part 8 of the MSGP for the mining sectors: “ Note:2015 EPA MSGP Response to Comments June 4, 2015

282 Where compliance with a requirement in a separate exploration permit, mining permit, reclamation plan, Surface Mining Control and Reclamation Act (SMCRA) requirements, etc. will result in you fully meeting any requirement in this Subpart, you are considered to have complied with the relevant requirement in this Subpart. You must include documentation in your SWPPP describing your rationale for concluding that any particular action on your part is sufficient to comply with the corresponding requirement in this Subpart.” However, not all aspects of the SMCRA permit are addressed in t he MSGP. Additionally, EPA prefers to have all relevant SWPPP information immediately available to the Agency (and to the public) through the NOI submittal or Internet URL options. Therefore, EPA is retaining the requirement for all industrial sector operators to make the SWPPP, or portions of the SWPPP, publicly available either via a

URL or on the NOI.

Comment ID 0072.001.008 Issue Category: 5.4

Author Name: Leah Pilconis SWPPP Availability

Organization: The Associated General Contractors of America (AGC of America)

Stormwater Pollution Prevention Plan (SWPPP) Provisions The proposed language in Section 5.4 requires that that the permittee's current SWPPP or extensive information from the current SWPPP must be made available to the public by: (1) posting the SWPPP on a publically accessible website and providing the URL (or web address) in the NOI; or (2) providing detailed SWPPP information directly in the NOI.

The first option is problematic because maintaining a website version of the SWPPP for every minor modification that is made to the master SWPPP presents an undue burden and significant risk of technical

non- compliance with the permit for even the most minor oversight. SWPPPs include site plans and maps, which vary in paper size from 11x17 to those that could fill a drafting table. See Figure 1 for a representative site map. What is more, EPA consistently states in its SWPPP guidance documents and templates that a "SWPPP is a ‘living' document and is required to be modified and updated, as necessary, in response to corrective actions," among other things. [FN12] Acc ordingly, every time a company would make anticipated changes to its SWPPP, it would need to rescan the entire document. AGC is unaware of any software that would allow the permittee to modify just one page of a document that is already posted

online. AGC members also point out that every time the document is modified (and re

- uploaded), the URL would change and not match what was listed on the NOI.

The second option for providing detailed SWPPP information directly in the NOI, in lieu of posting the

SWPPP on the internet, is overly

- broad and excessive. [FN13] Providing preliminary, limited SWPPP information is fundamentally more feasible, but a general description of industrial processes, potential pollutants and types of structural and non

- structural best management practices (BMPs) to be used (at the time the NOI is filed) is all that EPA should require.

Public Access to SWPPP Data EPA has not documented any public need to review site

- specific SWPPPs, or how the public gains any useful knowledge about the specific BMPs and processes employed by an industrial facility. Not only the

well

- motivated but also anyone at odds with any of these entities, for any business, political or other reason could easily access and make extensive use of the central databases that the agency plans to make available. The ready availability of this information would not only empower communities to play more active roles but also empower businesses to search for their competitions' propriety or otherwise

confidential informati on. The system would completely circumvent the Freedom of Information Act, and the limitations that it expressly imposes on the disclosure of government records.2015 EPA MSGP Response to Comments June 4, 2015

283 AGC also has a great concern that competitors or disgruntled employees, or perhaps others, m ight misuse the data to inflict reputational harm on the regulated entities. There would be nothing to prevent the data from being misconstrued, taken out of context, or simply misunderstood.

In our experience, the primary reason that certain groups have requested SWPPPs is to threaten citizen suits under the CWA for trivial paperwork or other inconsequential inconsistencies relating to how a facility describes versus implements a BMP. Absent a compelling environmental benefit associated with complete pub lic disclosure of SWPPPs, EPA should delete this mandate. Complete public disclosure also is a deterrent to more comprehensive SWPPP development because of fear of increased liability or providing additional information to competitors will necessitate that SWPPPs only meet the bare minimum requirements. Consultants that rely upon selling their SWPPP services also will be impacted when facilities merely copy online SWPPPs for their own use.

Section 5.5 sets forth additional documentation that is required to be kept with the facility's SWPPP. If EPA is asserting that such other documents are a part of the SWPPP and must also be publicly available via the internet, then AGC strongly objects to this mandate. The 2013 draft MSGP and draft MSGP Fact Sheet langua ge requires appropriate clarification.

[FN12] See e.g., "EPA's Sample MSGP SWPPP Template" at http://cfpub.epa.gov/npdes/stormwater/msgp.cfm#msgp2008_swppp.

[FN13] See MSGP Section 7.3. The information from the SWPPP that would have to be included in t he applicant's NOI form includes: onsite industrial activities exposed to stormwater, including potential spill and leak areas (see Parts 5.2.3.1, 5.2.3.3 and 5.2.3.5); pollutants or pollutant constituents associated with each industrial activity exposed t o stormwater that could be discharged in stormwater and/or any

authorized non

- stormwater discharges listed in Part 1.1.3 (see Part 5.1.3.2); stormwater control measures employed to comply with the non

- numeric technology

- based effluent limits required in Pa rt 2.1.2 and Part 8, and any other measures taken to comply with the requirements in Part 2.2 Water Quality -Based Effluent Limitations (see Part 5.2.4.1); and a description of control measures employed to comply with

the non

- numeric technology

- based efflu ent limits required in Part 2.1.2, and any other measures taken to comply with the requirements in Part 2.2.

Response See response to comment 0053.001.002, 0040.001.006, and 0031.001.004, and 0092.001.036. EPA disagrees that the selected SWPPP information requested on the NOI itself (if a SWPPP URL is not provided) is excessive. For proper oversight, it is vital to know the schedule for good housekeeping, maintenance, and inspections because permittees establish these timeframes on their own, and because proper and timely execution of these activities is paramount to effective stormwater programs. Additionally, EPA has not seen evidence that providing the public access to important information found in the SWPPP will result in a misuse of the data or information by the public. EPA also does not anticipate that consultants will be impacted as a result of operators copying SWPPPs for their own use, since each SWPPP is required to be site

- specific based on the specific activities occurring at the facility.

Comment ID 0073.001.010 Issue Category: 5.4

Author Name: Kelly Norton SWPPP Availability

Organization: Arizona Mining Association (AMA)

Parts 1.2.1.1, 5.4, 5.4.1, 5.4.2, 7.3: The 2008 MSGP gives EPA the authority to disseminate portions of SWPPPs to the public. This authority is discretionary, and EPA may screen requests. The draft MSGP requires that facilities make their SWPPP available t o the public through the internet via a URL link, or2015 EPA MSGP Response to Comments June 4, 2015

284 provide information from the SWPPP in the NOI. The only exception to this requirement is that confidential business information ("CBI") may be withheld. AMA questions the purpose of providing

SWPPPs dire ctly to the public and the value of that document to the requester, or of providing information from the SWPPP in the NOI, and potentially available to the public. Further, posting the SWPPP to the internet with periodic updates is an unreasonable administrative burden, shifting a discretionary EPA administrative function to a mandatory permittee requirement, requiring facilities to

become webmasters.

The SWPPP is a living document and is constantly undergoing potential changes and modifications. In

addit ion, the public does not have access generally to the industrial facility, so the specifics of the SWPPP may not be readily comprehensible by the requesting party without the ability to conduct an inspection. Further, the facility may have information cont ained in its SWPPP or in SWPPP information required in its NOI that is not legally CBI but which may include information regarding the facility's security or anti

terrorism plans. For example, the SWPPP may describe or locate certain key features of the fa cility (such as key block valves or alarms), knowledge of which is not generally available to the public but knowledge of which may facilitate acts of vandalism or terrorism. Such information should not be readily available to the public

- at

- large. [FN3]

Permitting authorities have access to and may request the latest copies of SWPPPs. If a member of the public can make a compelling argument to the permitting authority as to why it should be able to review the SWPPP of a particular facility, they should petition the permitting authority to work with the facility to obtain a public review (or clean) version of the SWPPP.

[FN3] Further, EPA has indicated that such availability is not required by the CWA. Final Modification

of the NPDES Multi

- Sector General Permit for Industrial Activities, 63 Fed. Reg. 52429, 52458 (Sep. 30, 1998) ("The Clean Water Act grants EPA the authority to require the submission of information by the regulated community. It does not, however, require the regulated community to provide information to private citizens upon request.").

Response See response to comment 0053.001.002 0031.001.004 0040.001.006.

Comment ID 0077.001.002 Issue Category: 5.4

Author Name: Pamela Faggert SWPPP Availability

Organization: Dominion

Stormwater Pollution Prevention Plan (SWPPP) Availability The draft MSGP requires that permittees either provide a uniform resource locator (URL) for the SWPPP on the Notice of Intent to be covered (NOI) form, or provide selected information from the SWPP P as identified in Part 7.3 of the draft MSGP on the NOI form. While we agree with allowing access to the SWPPP to the public and other stakeholders upon request, the existing SWPPP availability requirement in the 2008 MSGP is adequate and appropriate to achieve this access. The 2008 MSGP, as well as other State issued industrial stormwater permits, requires the permittee to retain a copy of the current SWPPP onsite and make it available upon request. SWPPPs may be revised frequently based on the changes at the facility, such as contacts, best management practices, chemicals onsite, etc. Providing the SWPPP online or requiring specific SWPPP information to be included in the NOI, in some circumstances could result in the requestor not receiving the most current information. Requiring the permittee to retain a copy of the current SWPPP onsite and make it available upon request is the most effective way to ensure the requester receives the most current document. We request that the existing language for SWPPP

a vailability in the 2008 MSGP be incorporated into the draft MSGP.2015 EPA MSGP Response to Comments June 4, 2015

285 Response See response to comment 0053.001.002 and 0040.001.006.

Comment ID 0083.001.010 Issue Category: 5.4

Author Name: David Wagger SWPPP Availability

Organization: Institute of Scrap Recycling Industries, Inc. (ISRI)

SWPPP Availability Via On

- Line Posting Entails Inherent Regulatory and Other Risks That Need to Be

Addressed. As written, proposed §5.4 ("SWPPP Availability") requires a permittee to post its SWPPP on

- line at a URL to be made publicly available, or absent that, to provide substantial SWPPP information as part of its Notice of Intent (NOI). U.S. EPA's emphasis on o n- line posting of SWPPPs belies the fact that both proposed options are equally available to permit applicants. Both options should remain equally available to permit applicants.

Yet, unlike the proposed NOI option, the proposed on

- line option seems to include great inherent risk of a permit violation (or worse) because complying with the on

- line option seems to allow the on

- line SWPPP to differ from the updated SWPPP for a period of time. This seems to put the proposed on

- line SWPPP option in tension wi th the requirement to keep an up -to- date SWPPP because unknown is the arbiter of what is an up -to- date SWPPP

- the permittee, U.S. EPA, or the public that views the SWPPP on

- line? In addition, posting a SWPPP on

- line always includes the possibility of human error, whether by the permittee or another party. What is the regulatory consequence of a URL error that prevents viewing of the SWPPP or simply an administrative error that causes an incomplete or out -of- date SWPPP to be viewed? Would either be a permit v iolation? Could U.S. EPA intercede if there were third -party consequences? The answers to these questions are unknown, should be provided, and should be used to

inform revision of the Draft 2013 MSGP.

Also, while the proposed on

- line option was added to the Draft 2013 MSGP for the purposes of providing SWPPP information to the public, and as a complement to the recent Proposed NPDES Electronic Reporting Rule (Docket ID No. EPA -HQ-OECA-2009- 0274), it is highly doubtful that the information

will be viewed with passive interest, as an "FYI". The obvious and most

- likely consequence of this proposed on

- line option is simply more threats of third

- party citizen suits based on the information

available in the on

- line SWPPPs, even if the only basis for a threat were a slightly inaccurate site map or some administrative SWPPP deficiency. Given the inherent regulatory and third

- party risks associated with the proposed on

- line option, the proposed on

- line option should also be revised to address these

issues.

Lastly , the accompanying Fact Sheet (Document EPA -HQ-OW-2012-0803- 0015) states that "[o]perators who object to making SWPPP information widely available may instead apply for an individual NPDES permit". While this is not part of the Draft 2013 MSGP, U.S. EPA sh ould clarify whether it believes that objection to making SWPPP information widely available, which presumably means objection to both on

line and NOI options for SWPPP availability, renders a permit applicant ineligible for 2013 MSGP

coverage.

Respons e EPA has finalized both proposed options for making the SWPPP publicly available (i.e., either provide a URL for the online SWPPP, or provide select SWPPP information in the NOI), which addresses the commenter’s concerns regarding the URL option. EPA furt hermore notes that permit enforcement, including citizen suits, is outside the scope of this action, which is the re

- issuance of the MSGP. EPA2015 EPA MSGP Response to Comments June 4, 2015

286 clarifies that if a permittee does not provide SWPPP information through either option, the permittee is not eligible for 2015 MSGP coverage, in which case individual permit coverage would need to be sought.

See also response to comment 0040.001.006.

Comment ID 0085.001.016 Issue Category: 5.4

Author Name: Zachary Griefen et al. SWPPP Availability

Organization: Conservation Law Foundation et al.

V. Public Involvement and Public Access to Information. The proposed permit impermissibly limits meaningful public participation. Commenters applaud the move to required electronic filing of the NOI in the proposed MSGP. But by not requiring that the SWPPP also be made available electronically, the proposed MSGP impermissibly curtails the public's ability to inform itself of the risks of activities or enforce the Clean Water Act. Public access to information about discharges that may affect waters that citizens use for fishing, swimming and drinking

is crucial t o, and a fundamental tenant of, effective environmental protection. Citizen action is a "proven enforcement tool" that "Congress intended [to be used...] to both spur and supplement government enforcement actions."[FN76] In particular, the proposed MSGP's failure to provide an opportunity for public comment on each facility's Storm Water Pollution Prevention Plan ("SWPPP") along with the Notice of Intent ("NOI") contravenes the CWA's unambiguous requirements that "[a] copy of each permit application and each permit issued [under section 402] shall be available to the public," 33 U.SC. 1342(j). Further, all monitoring data, reports and plans required to be filed with EPA pursuant to the permit and/or SWPPP should be posted electronically for the public to acces s.

A. Stormwater Pollution Prevention Plans Should be Online and Publically Accessible The proposed permit should require concurrent public availability and opportunity for comment on the NOI and the SWPPP, both of which should be posted electronically on EPA's website. Because the proposed permit fails to ensure an opportunity for the public to review and comment on SWPPPs, citizens may be precluded from legally challenging the sufficiency of SWPPPs. Instead, citizens will be limited to enforcing the procedural requirement of developing a SWPPP and having it on file.

Under Section 5 of the proposed MSGP ("Stormwater Pollution Prevention Plan (SWPPP)"), a facility owner or operator seeking coverage under the MSGP must prepare a SWPPP "before submitting [ its] NOI." (Emphasis in original). The applicant's compliance with this prerequisite to the filing of its NOI should be clearly demonstrated by requiring the applicant to post online an electronic copy of the SWPPP that it has developed and implemented.

The inclusion of general information from the applicant's SWPPP in the NOI does not suffice to demonstrate that the applicant has in fact developed and implemented a SWPPP that complies with the requirements of Sect 5 of the proposed MSGP. The Commenters' agree with EPA's observation in Section IX.A of the proposed 2013 MSGP Fact Sheet that "SWPPPs [...] are often found to be generic / minimal[.]" Requiring the applicant to provide a link to an online copy of its SWPPP would allow both EPA and the public to examine the SWPPP and make a determination as to whether the SWPPP complies with the requirements of the proposed MSGP and the CWA.

Only those MSGP applicants who request and receive a waiver from the electronic reporting requirement

under Section 7.1 of the proposed MSGP should be excused from a requirement that their SWPPPs be publically available online. As a minimum acceptable alternative, applicants who do not provide a URL linking to an electronic copy of their SWPPP must be required to produce to me mbers of the public, upon request, a copy of the SWPPP and such applicants should be subject to a sixty

- day waiting period before2015 EPA MSGP Response to Comments June 4, 2015

287 their discharges are covered under the MSGP in order to allow time for EPA and the public to obtain and review a copy of the S WPPP.

[FN76] CWA Amendments of 1985, Senate Environment and Public Works Comm., S.Rep. No. 50, 99th Cong., 1st Sess. 28 (1985).

Response EPA disagrees that the MSGP's “failure to provide an opportunity for public comment on each facility's Storm Water Pollution Prevention Plan ("SWPPP") along with the Notice of Intent ("NOI") contravenes the CWA's unambiguous requirements that ‘[a] copy of each permit application and each permit issued [under section 402] shall be available to the public’." Neither the SWPPP nor the NOI are considered to be permit applications. The MSGP is consistent with the decision in Texas Independent Producers and Royal ty Owners Assoc., et al. v. EPA, 410 F.3d 964 (7th Cir. 2005), where petitioners challenged EPA’s issuance of the Construction General Permit (“CGP”) that covers stormwater discharges. In that case, the only one to specifically address SWPPPs, the court found that neither the SWPPP nor the NOIs are permits or permit applications because they do not amount to limits. 410 F.3d at 978. Further, the court found that the permit requirement to develop a SWPPP is not an effluent limit. However, EPA will be providi ng the public access to both the NOI and the SWPPP after permit authorization, as explained in response to comment 0021.001.006. EPA agrees with the commenter about the importance of providing the public with access to information about discharges that may affect water quality (see also response to

comment 0053.001.002). See also response to comment 0031.001.004. If a member of the public wishes to see a complete SWPPP (because a permittee elected to provide the selected SWPPP information on the

NOI and not the SWPPP URL), the public is free to request that SWPPP from EPA, as has been the process under previous permits.

Comment ID 0085.001.018 Issue Category: 5.4

Author Name: Zachary Griefen et al. SWPPP Availability

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's SWPPP to be online and readily available to EPA and the public relates to several sections of the proposed MSGP and the NOI Form, as follows:

•Proposed MSGP § 5.4 SWPPP Availability. "Regardless of the format, the SWPPP must be immediately available to facility employees, EPA, a state or tribe, the operator of an MS4 receiving discharges from the site; and representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) at the time of an onsite inspection."

o Commenters note that the public should be added to the list of people to whom the SWPPP must be made available. Moreover, immediate availability of the SWPPP will be ensured by requiring that the facility's SWPPP be publically available online.

•Proposed MSGP § 5.4.1 SWPPP Posting on the Internet.

o Commenters note that this should be the only option for applicants, unless the applicant recei ves a waiver from the electronic reporting requirements pursuant to MSGP § 7.1.

Response EPA disagrees with the commenter with regards to the comment about making the facility’s SWPPP publicly available immediately upon request at an onsite inspection. Members of the general public are not granted the authority to conduct an inspection of a permitted facility. However, EPA has made every2015 EPA MSGP Response to Comments June 4, 2015

288 effort to ensure that the SWPPP or the parts of the SWPPP that are most directly related to the environment and human health are readily available to the public, and if a member of the public wishes to see a complete SWPPP (because a permittee elected to provide the selected SWPPP information on the NOI and not the SWPPP URL), the public is free to request that SWPPP from EPA, as has been the process under previous permits.

See also response to comment 0085.001.016.

Comment ID 0085.001.052 Issue Category: 5.4

Author Name: Zachary Griefen et al. SWPPP Availability

Organization: Conservation Law Foundation et al.

22. Require concurrent public availability and opportunity for comment on the NOI and the SWPPP, both of which should be posted electronically on EPA's website. Only those MSGP applicants who request and receive a waiver from the electronic reporting requirement under Section 7.1 of the proposed MSGP should be excused from a requirement that their SWPPPs be publically available online.

a. As a minimum acceptable alternative, EPA should require a 60

- day waiting period before coverage under the permit becomes effective for those facilities that fail to provide a SWPPP URL in their NOIs (as in the 2008 MSGP), in order to allow EPA and citizens sufficient time to obtain and examine the facility's SWPPP;

Response See response to comment 0085.001.016 and 0031 .001.004.

Comment ID 0087.001.021 Issue Category: 5.4

Author Name: Kathleen Martin SWPPP Availability

Organization: Alcoa Inc.

Section 5.4.1 SWPPP Posting on the Internet • For the reasons listed below and for the reasons outlined in the FS WA comments to this draft MSGP, Alcoa does not support the draft language regarding making SWPPPs available to the public via a URL
system.

• Posting the plan on a URL opens up the pos sibility of outside groups who are not impacted by a facility's storm water pollution to bring allegations against a facility. This is an unnecessary requirement for the facility.

• Posting the plan will make information about the location of materials s tored at the facility, facility process information, facility best management practices, etc. available to anyone including competitors. This could lead to unfair business practices and an unfair business advantage as these other entities will then have information for which the facility may have invested significant resources to develop.

• Posting the plan could lead to potential vandalism, theft from unknown persons, or potential chemical safety issues since the availability of the plan through a URL would allow unlimited access by unknown persons. If a group or individual wishes to see the information that has been provided to the agency, then there are appropriate channels (Freedom of Information Act) to be able to gather that data and some
transparenc y exists for those requests.2015 EPA MSGP Response to Comments June 4, 2015

289 • The draft MSGP stipulates that there are exceptions from sharing confidential business information (CBI), but to employ that option the facility would be required to maintain two separate plans and update

both in the event of testing or inspections. That is an extra burden and unnecessary step.

Response See response to comment 0053.001.002 and 0040.001.006. EPA furthermore notes that permit enforcement, including citizen suits, is outside the scope of this action, which i s the re

- issuance of the

MSGP.

Comment ID 0089.001.016 Issue Category: 5.4

Author Name: Kerry Kelly and Chuck White SWPPP Availability

Organization: Waste Management (WM)

SWPPP Availability To provide greater access to the SWPPP, the proposed MSGP requires that permittees either provide a web link or URL for the SWPPP on the NOI form, or provide selected information from the SWPPP on the NOI form. While the SWPPP has previously been publicly available through the agencies upon request by interested members of the public, this would require, for the first time, for permittees to make the SWPPP publicly available. WM requests that this additional public dissemination of SWPPP

information continu e to be the responsibility of the agencies

- not the permittees themselves. EPA's proposal is an additional public records burden placed on the permittees and is a responsibility that WM believes should be retained by the agency.

Response See response to comment 0053.001.002, 0040.001.006, and 0031.001.004, 0092.001.036, and

0072.001.008.

Comment ID 0092.001.006 Issue Category: 5.4

Author Name: Jeffrey Longsworth SWPPP Availability

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

FSWA also raises significant and reasonable concerns regarding EPA's new proposed requirement for facilities to put their SWPPP documents on the internet. Such a requirement is impractical and will serve as a deterrent to any facility putting more into its SWPPP than the bare minimum requirements.

Response See response to comment 0053.001.002, 0040.001.006, and 0031.001.004, 0092.001.036, and

0072.001.008.

Comment ID 0092.001.035 Issue Category: 5.4

Author Name: Jeffrey Longsworth SWPPP Availability

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

The proposed language in Section 5.4 requires that that the permittee's current SWPPP or certain information from the current SWPPP must be made available to the public by: (1) posting the SWPPP on2015 EPA MSGP Response to Comments June 4, 2015

290 a publically accessible website and providing the URL in the NOI; or (2) providing essential SWPPP information directly in the NOI.

The first option is problematic because maintaining a website version of the SWPPP for every minor modification that is made to the master SWPPP presents an undue burden and signif icant risk of technical

non- compliance with the permit for even the most minor oversight. The second option for providing limited SWPPP information, as detailed in MSGP Section 7.3, in lieu of posting the SWPPP on the web, is fundamentally more feasible, b ut EPA should allow more generic summary information than required by Section 7.3. A general description of industrial processes, potential pollutants and types of structural

and non

- structural BMPs being used is all that should be required.

EPA has not documented any public need to review site

- specific SWPPPs, or how the public gains any useful knowledge about the specific BMPs and processes employed by an industrial facility. Nevertheless, SWPPPs have always been "publicly available" through a process in which the public can request a copy by asking the permitting authority to get the latest version from the permittee. That method provides appropriate checks and balances against abuse and EPA has not provided any justification for changing the existing p rocedures. In our experience, the primary reason that certain groups want instant internet access is to threaten citizen suits under the CWA for trivial paperwork or other inconsequential inconsistencies relating to how a facility describes versus implemen ts a BMP.

Absent a compelling environmental benefit associated with complete public disclosure of SWPPPs, EPA should delete this mandate. Complete public disclosure also is a deterrent to more comprehensive SWPPP development because of fear of increased liability or providing additional information to competitors will necessitate that SWPPPs only meet the bare minimum requirements. Consultants that rely upon selling their SWPPP services also will be impacted when facilities merely copy online SWPPPs for t heir own

use.

Response See response to comment 0053.001.002, 0040.001.006, and 0031.001.004, 0092.001.036, and

0072.001.008.

Comment ID 0094.001.015 Issue Category: 5.4

Author Name: Eric Fry SWPPP Availability

Organization: Peabody Energy

12) 5.4 SWPPP Availability. EPA has imposed new requirements on making the SWPPP available to the public. Peabody respectfully disagrees with EPA's position, and believes that the 2008 MSGP struck the correct balance. First, the public should have to request that nonconfidential and non -restricted information be made available. Second, EPA simply encouraging that SWPPP be posted online is

sufficient.

Response See response to comment 0053.001.002 and 0040.001.006.2015 EPA MSGP Response to Comments June 4, 2015

291 

### Issue Category: Section 6.0

- Monitoring

- General Comments

Comment ID 0029.001.005 Issue Category: 6.0

Author Name: Kim Cox Monitoring

- General Comments

Organization: City of Portland Environmental Services

B. Risk based monitoring. The concept of switching to a risk

- based monitoring program is well worth considering. There seems to be ample available options that could form the basis for such a program.

Response See monitoring response to comment essay.

Comment ID 0085.001.013 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

III. Monitoring and Reporting Requirements

A. EPA must improve the permit's monitoring requirements, increase the frequency of sampling, and remove the monitoring exemption for data not exceeding benchmarks.

In order to adequately monitor compliance with the permit's effluent limits, as required by Section 402 of the Clean Water Act, [FN57] EPA must increase the frequency of sampling and stop relying solely on grab sampling. The National Research Council suggested that EPA could significantly improve its monitoring program through reliance on continuous sampling methods that are flow weighted and continue for the duration of a rain event."[FN58]

For the same reasons, EPA must remove the monitoring exemption for "data not exceeding benchmarks" found in Part 6.2.1.2 of the MSGP. This exemption states that, "[a]fter collection of four quarterly samples, if the average of the four monitoring values for any parameter does not exceed the benchmark, you have fulfilled your monitoring requirements for that parameter for the permit term." This is problemat ic for two reasons: first, if EPA truly hopes to improve its sampling practices and build a higher quality data set, it is going to need all the samples it can get. Second, EPA is aware that stormwater runoff is highly variable and that most discharges can not be adequately characterized with only four samples. To collect only four samples and conclude on that basis that the discharge complies with the benchmarks or water quality standards over time is arbitrary, capricious, unreasonable, unsupported by the record evidence and therefore an abuse of EPA's discretion. At most sites, four samples are not enough to prove that the discharge does not exceed benchmarks or standards.

The most authoritative discussion of industrial stormwater variability in the rulemaking record is the National Research Council Report commissioned by EPA. In its review of EPA's stormwater permitting, the NRC found that stormwater data, in particular data from industrial sites, are highly variable. "[V]ariability comes from various sources, including intrinsic variability given the episodic nature of storm events, analytical methods that are more variable when applied to stormwater, and sampling technique problems and error."[FN59] The NRC suggested improvements to sampling techniques that would reduce error and variability, but EPA has ignored those.

Still, even if EPA requires permittees to adopt improved sampling methods, the NRC concluded that the intrinsically higher variability of stormwater discharges means that a greater number of samples must be2015 EPA MSGP Response to Comments June 4, 2015

292 collected to support analysis and management decisions. [FN60] "Industrial sites should conduct monitoring so that a sufficient number of storms are measured over the life of the permit for comparison to regional benchmarks."[FN61] Bas ed on analysis of existing stormwater data, the NRC suggested that EPA should require around forty samples to adequately characterize discharges from medium risk industrial facilities over the course of a permit, or eight samples per year, in order to esta blish a statistically valid estimated median concentration for various pollutants. While the NRC suggested that this number could be reduced depending on the variability observed in the first 10

- 15 samples, this still requires far more sampling to get accu rate measurements than the four samples that EPA asks permittees to undertake. [FN62] The current MSGP requirement to gather a maximum of four samples a year is not adequate to "yield data which are representative of the monitored activity" or to assure co mpliance with the permit's technology and water quality based limitations. [FN63] For EPA to readopt these sampling requirements in light of their known inadequacy would be unlawful, arbitrary, capricious, and an abuse of the agency's permit

- writing discre tion.

B. More frequent sampling is economically practicable

Commenters strongly support the adoption of the National Research Council's suggestion that any site identified as high or medium risk should be required to sample stormwater discharges with f ar greater frequency than the four samples per year called for in the MSGP. EPA has asked for comment on whether more frequent sampling is economically practicable. [FN64] EPA should improve the permit's monitoring requirements through the use of more freq uent sampling. Commenters believe that it is economically practicable for permittees to engage in more frequent and improved monitoring, including the use of auto samplers to gather composite, flow

- weighted samples.

In its report to EPA, the National Research Council included cost estimates, in 1993 dollars, for different kinds of automatic sampling equipment, all of which are superior to the current grab samples taken by permittees. The prices given include $2,889 (about $4,250 in 2013 dollars) for a time

- based composite sheet flow sampler that could be installed in a driveway, for example, and $16,052 (about $24,000 in 2013 dollars) for a flow

- weighted composite auto

- sampler. [FN65] Based on commenter's experience,

m any accredited labs will run an EPA test method 8270 scan on a mailed stormwater sample for less than $200, with discounts available for multiple samples.

Both the one

- time and recurrent costs are quite affordable compared to the costs of other stormwate r control measures implemented by permittees. For example, commenters have observed small to medium

sized industrial facilities spending tens or even hundreds of thousands of dollars to create permanent barriers, settling basins, and other structural control. Relative to the costs of other BMPs, the improved monitoring requirements are proportionate and reasonable.

C. EPA Should Not Weaken The MSGP By Adding Monitoring Waivers.

In the Fact Sheet, EPA states that "facilities that report exceedances of be nchmark values have been

unable to find cost

- effective modifications to their management practices to eliminate these exceedances" and EPA now requests comment on a possible waiver from monitoring for facilities that have given it ‘the old college try' but cannot seem to meet benchmarks. [FN66]

Commenters believe that EPA should not offer such a waiver, and cannot take the inability of permittees

to find "cost

- effective modifications" at face value. For decades, MSGP permittees have been instructed to evaluate their own compliance with the Clean Water Act and have been invited to determine for themselves which control measures are technologically available and economically achievable for their own industry. The decisions that permittees make are rarely rev iewed and almost never challenged. In2015 EPA MSGP Response to Comments June 4, 2015

293 these conditions, EPA cannot be surprised that a large number of permittees seem to select and implement corrective actions that don't actually lead to compliance. [FN67]

These compliance problems stem directly from EPA's failure to conduct BAT analysis and establish numeric effluent limits. As noted above, the purpose of the BAT analysis that EPA has pushed down onto individual permittees is to determine which pollution reduction measures are available to their indus try as a whole. Asking an individual facility to conduct this analysis on its own is, at the very least, peculiar: how is a permittee to judge what is technologically available and economically achievable for the industry as a whole? For years EPA has implicitly invited permittees to conduct the wrong analysis: to decide that a control measure costs more than they wish to spend on pollution reduction, and conclude therefore that no further pollution reductions are "available" at their facility.

EPA has not included even a single case study in the record for this rulemaking that supports EPA's assumption that permittees who claim that they cannot find cost

- effect modifications have actually exhausted the available technology options. While there are exceptions to every rule, in the commenters' experience, when government or citizens initiate an enforcement action against a facility that has chronically failed to comply with its permit obligations, permittees seem to find technology options that

meet benchmar ks.

It is unreasonable, arbitrary, capricious, and an abuse of discretion for EPA to assume that MSGP permittees have already implemented the best available technology on their own with little guidance from EPA, little oversight, a strong incentive to minimize their own costs, and no incentive to maximize pollution reductions. For decades, EPA has left self

- interested, cost minimizing permittees the freedom to

determine for themselves whether or not benchmark exceedances warrant further action. How can EP A be surprised that many of those permittees exceed benchmarks but decide either not to implement corrective action at all or implemented inadequate corrective actions? Instead of weakening the MSGP further by creating a benchmark monitoring waiver, it is time for EPA to finally set numeric effluent limits in the MSGP, as required by the Clean Water Act.

[FN57] See also 40 C.F.R. §§ 122.44(i)(1) (every permit "shall include" monitoring "[t]o assure compliance with permit limitations"), 122.48(b) ( "All per mits shall specify . . . [r]equired monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity.").

[FN58] USM at 7 -8.

[FN59] USM at 283.

[FN60] See USM at 284.

[FN61] USM at 330.

[FN62] See USM at 297.

[FN63] 40 C.F.R. § 122.48(b); see also id. § 122.44(i)(1) (every permit "shall include" monitoring "[t]o assure compliance with permit limitations").

[FN64] See Fact Sheet at 52.

[FN65] See USM at 295.2015 EPA MSGP Response to Comments June 4, 2015

294 [FN66] See Fact Sheet at 52.

[FN67] See Captain Renault, Casablanca (1942) ("I am shocked, shocked to find that gambling is going on in here.").

Response See monitoring response to comment essay.

Comment ID 0085.001.040 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

11. Complete the process of establishing improved monitoring requirements

Response See monitoring response to comment essay.

Comment ID 0085.001.042 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

13. Once the RPA is completed, revise the MSGP's monitoring requirements to require monitoring in each sector for all pollutants likely to be present and with reasonable potential to be discharged at high concentrations, including but not limited to the fo llowing:

a. PAHs: Monitoring for PAHs at all industrial facilities that have applied pavement sealant (see below)

b. Zinc: Monitoring at all industrial facilities, because of the prevalence of zinc in discharges from uncoated galvanized metal surfaces, including roofs;

c. Iron: Monitoring at all industrial facilities because its widespread occurrence and high oxidation rate make it a very useful indicator of broader pollution concerns.

d. Copper: monitoring at water transportation and boat building and repair facilities because of the presence of copper

- based anti

- fouling paints on marine vessels.

e. BOD, COD, and Total Nitrogen: monitoring at all facilities in order to flag the possible release of a wide variety of pollutants that contribute to low dissolved oxygen, which is perhaps the most common impairment in the country. Additionally, these parameters are helpful in identifying illicit discharges to stormwater outfalls and discharges from improperly maintained septic systems.

f. Mercury: moni toring at auto salvage yards because of the presence of mercury switches

g. PCBs: monitoring at scrap metal facilities because of the presence of scrapped equipment with a higher

likelihood of PCB contamination

h. Volatile and Semi

- Volatile Organic Compounds: Monitoring at all industrial facilities, because of the prevalent use of VOC's and Semi

- VOCs including but not limited to acetone and toluene.2015 EPA MSGP Response to Comments June 4, 2015

295 14. Require sufficient monitoring to assure that a facility is not causing or contributing to water quality exceedances and to evaluate whether a facility is complying with the WLA assigned to it.

Response See monitoring response to comment essay.

Comment ID 0085.001.047 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

17. Increase the frequency of sampling and stop relying solely on grab sampling

Response See monitoring response to comment essay.

Comment ID 0085.001.049 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

19. Adopt the National Research Council's suggestion that any site identified as high or medium risk should be required to sample stormwater discharges with far greater frequency than the four samples per year called for in the MSGP

Response

See monitoring response to comment essay.

Comment ID 0085.001.055 Issue Category: 6.0

Author Name: Zachary Griefen et al. Monitoring

- General Comments

Organization: Conservation Law Foundation et al.

25. Cease using third

- party contractors to process, compile, and store monitoring data, and instead

conduct these activities in

- house at EPA;

Response See response to comment 0085.001.024.

Comment ID 0089.001.001 Issue Category: 6.0

Author Name: Kerry Kelly and Chuck White Monitoring

- General Comments

Organization: Waste Management (WM)

The proposed federal MSGP should clarify that sampling is not required outside of normal facility operating hours or after dark. [Sections 3.2.1 and Section 6.1.1]

As drafted, the proposed Permit does not explain whether a facility operator is required to undertake visual assessment or sampling outside of normal operating hours or outside of daylight hours. It would be impractical, burdensome, and unreasonable to require monitoring or sampling outside of normal operating2015 EPA MSGP Response to Comments June 4, 2015

296 hours. We therefore recommend that the permit expressly state that monitoring or sampling may be performed, but is not required, outside of normal operating hours. This clarification is particularly

i mportant should EPA retain the 30

- minute sampling requirement addressed in the following comment.

WM and others have asked states to provide greater latitude in collecting samples. For example, industry sectors requested the Georgia Environmental Protect ion Department (GAEPD) to place the text, below, into their general permits. The results of sampling conducted during operating hours are more representative of discharges from actual site activities. Furthermore, sample collection during operating hours is a more practical and reasonable time period for requiring the collection of samples. After hours sampling is substantially more expensive and burdensome, as site operators must have staff or consultants on call 24/7 in order to collect samples that meet sample method requirements (e.g., pH analysis within 15 minutes of sample collection). Our understanding is that GAEPD consulted EPA and the Agency approved the following language:

4.2.1 Quarterly Visual Assessment Procedures.

4.2.1.1 Once each quarter for the entire permit term, permitees must collect a storm water sample from each outfall (except as noted in Part 4.2.3) and conduct a visual assessment of each of these samples. These samples are not required to be collected consistent with 40 CFR Part 136 procedures but should be collected in such a manner that the samples are representative of the storm water discharge. The sampling required must occur during a site's normal operating hours.

6. Monitoring. Permitees must collect and analyze storm water samples and document monitoring activities consistent with the procedures described in Part 6, Appendix B, Appendix C and any additional

sector- specific requirements in Parts 8, respectively. Refer to Part 7 for reporting and recordkeeping requirements . The sampling required must occur during a site's normal operating hours.

The Permit should also clarify that monitoring and sampling is required during daylight hours only -- and is not required during the night, although a facility operator may perfor m such sampling outside of daylight hours.

WM recommends the following revision to Sections 3.2.1 and Section 6.1.1:

•Once each quarter during daylight hours of scheduled facility operating hours for the entire permit term, you must collect a storm water sample from each outfall (except as noted in Part 3.2.3) and conduct a visual assessment of each of these samples.

•Applicable monitoring requirements apply to each outfall authorized by this permit, except as otherwise exempt from monitoring as a "su bstantially identical outfall." Sample collection and visual observations are not required during adverse weather conditions or outside of scheduled facility operating hours. You are not precluded from collecting samples or conducting visual observations outside of scheduled facility operating hours. If your facility has two or more outfalls that you believe ....

Proposed 30

- minute timeframe to collect samples

The requirement to collect samples within the first 30 minutes of an actual discharge is impract ical for many sites and site operators' inability to collect samples within that timeframe results in the disqualification of large numbers of samples. [Section 3.2.1 and 6.1.4]

WM recommends that EPA eliminate the condition that qualifying storm water s amples be taken within the first 30 minutes of an actual discharge, as required by Sections 3.2.1 and 6.1.4. Based on our2015 EPA MSGP Response to Comments June 4, 2015

297 experience, such a requirement is often impractical and can result in the disqualification of important sampling information that will be useful to operators in evaluating their storm water management practices. While this requirement may work for simple sites with one or two readily observable discharge points, it is impractical for large sites with multiple discharge points, where it m ay be very difficult to identify where and when the discharge first started (e.g., a 200

- acre landfill property in hilly terrain).

Where sites have multiple discharge locations, it may not be possible to collect samples from all discharge points within t he first 30 minutes. The sampling personnel must first identify that a discharge has begun, gather the necessary sampling equipment and go to each sampling location. The 30 -minute time period can quickly run out when sampling personnel must carefully follo w appropriate sampling protocols and then travel to the next sampling point. This can be especially difficult for large sites, such as landfills, where storm water, discharge points may be difficult to access and separated by large distances,

or where on -s ite testing must be done (e.g., pH testing) or where stringent hold times are applicable.

It may also be difficult to identify when the 30

- minute clock should start. After a heavy rain has begun, it may take hours before a discharge occurs, especially fo r large sites with swales, retention basins, and other complex drainage features. With discharge points located at great distances from administrative offices, or in difficult to observe locations, the storm water sampler may not be able to observe when a discharge began for each and every discharge point.

This requirement is also impractical because rainfall and the start of a discharge can occur outside of normal operating hours, on weekends, holidays, or other times when facilities are not open. In those cases, the storm water sampler will not be able to determine when the discharge began and will most likely have to assume that if there is a discharge that is already flowing at the beginning of an operating day, it has been flowing for more than 30 minutes, thereby disqualifying the discharge as a samplin g

event.

Weather forecasts are often imprecise and make it difficult to plan when to send staff out to outfalls to conduct sampling. The imprecise timing makes sampling costly, as staff must often spend hours waiting/anticipating the start of the storm and discharge or must constantly check to determine whether the rain has begun and if the rain is intense enough to produce a discharge

WM recommends EPA consider adopting an approach similar to the draft permit proposed by the State of

California. In its draft permit, the California State Water Resources Control Board does not adopt a 30

- minute standard, but instead allows for sampling within 4 hours of the start of the discharge or within 4 hours after the start of facility operations. The proposed Calif ornia language states

-- and our

recommendation for the federal MSGP would be:

Samples from each discharge location shall be collected within four (4) hours of:

a. The start of the discharge; or

b. The start of facility operations if the QSE occurs w ithin the previous 12 hour period (e.g., for storms with discharges that begin during the night for facilities with day

- time operating hours).... [FN1]

The 72

- hour storm interval for qualifying storm events (QSE) is impractical when facilities are closed a t night or on weekends or holidays. [Sections 3.2.1 and 6.1.3]

WM recommends that EPA reconsider the 72

- hour storm interval requirement for determining a "qualifying storm event" (QSE) in Sections 3.2.1 and 6.1.3. In WM's experience, this requirement cre ates considerable uncertainty for businesses that do not operate their facilities 24 hours per day and seven days2015 EPA MSGP Response to Comments June 4, 2015

298 per week. Consider if a rainfall event occurs over a weekend; at night; during a holiday; or at some other time when the facility is not operating. The facility operator cannot know whether the rainfall event resulted in a discharge that would disqualify a subsequent rainfall event from being a QSE. As a practical matter, for example, someone operating a facility that is open only during typical business hours on weekdays cannot determine whether a sample taken on Monday, Tuesday, or Wednesday is a QSE without knowing whether it rained over the weekend and whether the weekend rainfall resulted in a discharge. Similarly, if rain occurred at night, a facility operator may not know whether the rainfall resulted in a measurable discharge, and therefore cannot know whether a subsequent sample taken within the next few days would be "qualifying."

The proposed Permit should expressly define a "qualifying storm event".

As a matter for permit

- drafting, WM notes that nowhere does the proposed Permit actually define the term "qualifying storm event" ("QSE"). While the Permit appears to describe a QSE in Section 3.2.1, it does not expressly state the definition; therefore, WM recommends EPA propose a definition of the term, subject to public review and comment.

[FN1] See California SWRCB, General Permit for Storm Water Discharges Associated with Industrial Activities, Order, NPDES No. CAS000001 at 38.1

Response See monitoring response to comment essay. Regarding concerns with the impracticability of the 72 -hour storm interval, EPA reminds the commenter of the infrequency of required sampling (i.e., benchmark monitoring is only required quarterly). There fore, EPA does not expect that most facilities will need to take samples outside of normal business hours to meet the schedule, since there is a three

- month window within which to comply with the requirement; furthermore, there are flexibilities available for facilities that are located in areas with irregular rainfall. EPA clarifies that a qualifying storm event is one that meets the definition of “storm event” as defined in Appendix A, and thus does not agree that adding a definition of “qualifying storm event” is necessary.2015 EPA MSGP Response to Comments June 4, 2015

299 

### Issue Category: Section 6.1

- Monitoring Procedures

Comment ID 0029.001.006 Issue Category: 6.1

Author Name: Kim Cox Monitoring Procedures

Organization: City of Portland Environmental Services

1. How would risk categories be defined?

EPA should consider an alternative using a formula

- based risk

- based ranking system. Sites could be awarded points based on the conditions of the site and the nature of the discharge. Points could be assigned for site characteristics like location in proxim ity to sensitive or Tier 2 or 3 waterbodies or within an ESA action area, size and slope of site, and presence of pollution control BMPs (such as site sweeping, green infrastructure, etc). Discharges could be evaluated by type of material, quantity of mate rial onsite (using reportable quantifies), and exposure potential of material (i.e. is it covered, bermed, no exposure). Numeric ranges could then be assigned based on the risk factors and the pollution control measures employed.

Response See monitoring response to comment essay.

Comment ID 0053.001.003 Issue Category: 6.1

Author Name: Emily Coyner Monitoring Procedures

Organization: National Stone, Sand, & Gravel Association (NSSGA)

Sampling Should be Required Only During Normal Working Hours

The proposed 2013 MSGP recognizes the impracticality and potential safety issues with sampling during adverse weather conditions, and exempts sampling at these times under 6.1.5. Similarly, the problems with sampling outside of normal working hours should be addressed in the MSGP. Many facilities covered under the MSGP are staffed only during normal business hours on weekdays. Sampling during

off- hours can present access, staffing and safety issues. Where one person could safely sample during

business hours , more than one might need to be present during off

- hours. The Construction General Permit (CGP) includes this consideration in Section 4

- Inspections. Under 4.1.2 of the CGP: "Inspections are only required during the project's normal working hours." This s hould also be added to the MSGP under section 6. As with the CGP, proper documentation would be required.

Response See monitoring response to comment essay.

Comment ID 0064.001.007 Issue Category: 6.1

Author Name: Katie Kistler Monitoring Procedures

Organization: AK Steel Corporation

Sampling Requirements

- Commingled Discharges Section 6.1.2

Section 6.1.2 of the draft permit contains the following statement with regard to storm water monitoring: "If discharges authorized by this permit commingle with discharges not authorized under this permit, any2015 EPA MSGP Response to Comments June 4, 2015

300 required sampling of the authorized discharges must be performed at a point before they mix with other waste streams to the extent practicable."

AK Steel disagrees with this approach. Consider for instance a settling lagoon that receives both storm water and other wastewaters (e.g., non

- contact coo ling water, process water) and the discharge from that lagoon is through an Outfall authorized under an individual NPDES permit. The appropriate location to assess the potential impact from the facility on the receiving water obviously is the effluent from the lagoon, which is reflective of treatment provided for the storm water and the other wastewater streams. hi this case the appropriate location to assess conformance with benchmark monitoring and other monitoring under the permit should be the lagoon effluent, not some other location upstream of the lagoon that is not reflective of the storm water control in place (i.e., the lagoon). The draft permit statement above should be removed from the final permit.

Sample Type

- Section 6.1.4

Section 6.1.4 co ntains the following statement with regard to sampling: "Samples must be collected within the first 30 minutes of a measurable storm event. If it is not possible to collect the sample within the first 30 minutes of a measurable storm event, the sample must be collected as soon as practicable after the first 30 minutes and documentation must be kept with the SWPPP explaining why it was not possible to take samples within the first 30 minutes."

Some outfalls likely receive no flow, or very little flow, during the first 30 minutes of a rainfall event. AK Steel suggests that this statement either be removed from the permit entirely or modified to state that the samples should be collected within the first 30 minutes of discharge resulting from the event. If th is requirement is retained in some form, the component about the feasibility of collecting the sample within

the first 30 minutes should remain.

Response See monitoring response to comment essay.

Comment ID 0069.001.003 Issue Category: 6.1

Author Name: Philip McNeely Monitoring Procedures

Organization: City of Phoenix, Office of Environmental Programs

Part 6.1.3 / 6.1.4. Can additional clarification be provided with respect to how a measurable storm event as used here relates to "storm event" as defined in Appendix A? Appendix A defines a "storm event" as any storm with measurable precipitation. Weather stations typically report rain events as low as 0.01" However, this section infers that a measurable storm event is one that produces an "actual discharge" that can be sampled. The typical measurable storm event as provided in the Appendix typically canno t create a discharge that can be sampled. Consider defining the term "measurable storm event" in Appendix A, instead of only "storm event".

Response See monitoring response to comment essay.

Comment ID 0070.001.014 Issue Category: 6.1

Author Name: Beth Goodnough Monitoring Procedures

Organization: Western Fuels Association Inc.2015 EPA MSGP Response to Comments June 4, 2015

301 Part 6.1.5 Adverse Weather Conditions. We are concerned with the sentence "Adverse weather does not exempt you from having to file a benchmark monitoring report in accordance with your sampling schedule." This will require staff to travel on roads and in dangerous areas when they are not safe to be travelling on simply to comply with the benchmark monitoring requirements. There are procedures for inspection of all mining areas prior to access after precipitation events, and we cannot allow staff or

contract ors to break those rules in order to comply with the sampling requirements of this MSGP program. We request this sentence be eliminated or modified to clarify that such monitoring data is required to be collected when they can be safely collected.

Part 6 .1.6. Same as above. The last sentence should be modified to specify that the required number of samples be collected when they can be safely collected.

Response See monitoring response to comment essay.

Comment ID 0085.001.064 Issue Category: 6.1

Author Name: Zachary Griefen et al. Monitoring Procedures

Organization: Conservation Law Foundation et al.

36. Where a permittee chooses to manage polluted stormwater by infiltrating it into groundwater that is directly hydrologically connected to surface waters, EPA should clarify in the permit, or in its response to comments, that the infiltration system in q uestion is an outfall. As such, discharges to the infiltration system are subject to monitoring requirements like any other outfall.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

302 

### Issue Category: Section 6.2

- Required Monitoring

Comment ID 0037 .001.004 Issue Category: 6.2

Author Name: Michael McIntyre Required Monitoring

Organization: Idaho Department of Environmental Quality

Page 34 6.2 Required Monitoring. Why does EPA only require a minimum of once per year (annual) compliance monitoring for effluent limitation pollutants (enforceable limits), while requiring quarterly monitoring for benchmark parameters (non- enforceable limits)? On what basis does EPA beli eve such limited monitoring is adequate for assessing compliance with water quality standards?

What is the basis for requiring some sectors/subsectors to monitor for some pollutants, while other sectors have no benchmark monitoring requirements or effluent limitations? Why has EPA not made efforts to require basic monitoring for all sectors of industry covered under this general permit? Various states who have primacy over the NPDES program, and who write their own industrial stormwater permits, require

A

LL sectors of industry to monitor for a handful of parameters which are common in stormwater runoff (e.g., TSS, Oil and Grease, pH, zinc, and cadmium). In this way, they have leveled the playing field and are accounting for all sources of stormwater pollut ion from industrial facilities.

DEQ believes that in

- stream water quality monitoring should be conducted in order to assess compliance with water quality standards and to better determine whether stormwater discharges have negative impacts to surface wat er quality.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

303 

### Issue Category: Section 6.2.1 - Benchmark Monitoring

Comment ID 0031.001.005 Issue Category: 6.2.1

Author Name: Anthony Grieggs Benchmark Monitoring

Organization: Los Alamos National Security (LANS)

4. Section 6.2.1.1 Applicability of Benchmark Monitoring: This section indicates that the permittee must monitor for any benchmark parameters specified for the industrial sector(s), both primary industrial activity and any co

- located industrial activities, applicable to the stormwater discharge.

After completio n of the 2008 MSGP, facilities have five years of monitoring data and may have a background study. If industrial operations and pollutant sources have not changed, what is the value added of starting benchmark monitoring over again for the same constituents, particularly if a facility has largely been able to cease monitoring in accordance with Part 6.2.1.2 of the 2008 MSGP, which allows the cessation of monitoring under the following two criteria?

•After collection of 4 quarterly samples, if the average of the 4 monitoring values for any parameter does not exceed the benchmark, you have fulfilled your monitoring requirements for that parameter for the permit term.

•Following the first 4 quarters of benchmark monitoring (or sooner if the exceedance is tr iggered by less than 4 quarters of data, if the average concentration of a pollutant exceeds a benchmark value, and you determine that exceedance of the benchmark is attributable solely to the presence of that pollutant in the natural background, you are not required to perform corrective action or additional benchmark monitoring.

Recommendation: It is recommended that an exemption from benchmark monitoring under the 2013 MSGP be allowed if documentation can be provided in the SWPPP that benchmark monitor ing under the previous permit met the above criteria and industrial operations and pollutant sources at the facility have not changed.

Response See monitoring response to comment essay.

Comment ID 0037.001.005 Issue Category: 6.2.1

Author Name: Michael McIntyre Benchmark Monitoring

Organization: Idaho Department of Environmental Quality

Page 35 6.2.1.2 Benchmark Monitoring Schedule. With respect to benchmark monitoring, there is no consideration given to the magnitude of the excursion. Why does EPA only require an average of the four quarterly samples to be compared to the benchmark concentration? Is this average a geometric mean, or an arithmetic mean? Clarification is needed.

Benchmark monitoring is currently only required for four quarters, if the average of the four quarters is below the benchmark concentration then no further benchmark monitoring is required. What about planned changes? If a facility is changing its operation in a way that increases discharges, then they2015 EPA MSGP Response to Comments June 4, 2015

304 should be required to conduct four additional quarters of benchmark monitoring to ensure that the increase in discharge is not negatively impacting surface water quality.

Will EPA issue a letter to the permittee waiving further monitoring requirements once they have fulfilled the requirements contained in the permit (i.e. after four quarters have been collected and the average of the four does not exceed the benchmark)? Or, does the discharger just assume they can discontinue monitoring?

Response See monitoring response to comment essay.

Comment ID 0041.001.006 Issue Category: 6.2.1

Author Name: Jason Ulseth & Jessica Sterling Benchmark Monitoring

Organization: Chattahoochee Riverkeeper

Part 6.2.1

- We understand that EPA is seeking comments on the risk

- based benchmark monitoring approach for the 2018 permit. We discourage EPA from weakening benchmark monitoring regulations and BMP requirements in any way. However, we do support the use of risk

- based monitoring if requirements were stricter for medium

- risk and high

- risk facilities. We suggest monitoring at least on a quarterly basis for medium

- risk and high

- risk facilities throughout the permit period, not just in the first year of the per mit. Given the variability in rainfall from year -to- year, more frequent monitoring would provide a better characterization of the stormwater discharging from facilities. We will continue to evaluate various approaches and provide additional input to EPA th rough the compliance period of the

2013 MSGP.

Response See monitoring response to comment essay.

Comment ID 0044.001.002 Issue Category: 6.2.1

Author Name: Bryon Clemence Benchmark Monitoring

Organization: Consulting Engineer

Benchmark Monitoring Requirement EPA notes that the benchmark monitoring requirement has received much scrutiny. However, I see no reason to change it drastically in spite of its limitations. The permit contains sufficient provisions should

benchmarks be exceeded. Benchmarks are guidelines, and exceeding them is not a permit violation. Nor does the permit require control measures that are technologically or economically unachievable. These are important considerations for small businesses that complete an SWPPP, conduct the required monitoring, and adhere to standard industry practices.

I think the biggest concern is applying water quality criteria to end -of- pipe discharges and characterizing them with a single grab sample. When applied to stormwater discharges, as surrogates for effluent limits or estimators of concentrations in receiving waters, the benchmarks appear overly conservative in some ways. This seems appropriate for a general permit, and suggests that the monitoring requirements are generally sufficient. The attached Supplemental Information discusses that further.

Recommendation 1. I would suggest that the benchmark monitoring requirements remain essentially the same with the following minor changes.2015 EPA MSGP Response to Comments June 4, 2015

305 a. The proposed permit specifies monito ring for total recoverable metals whereas the water quality criteria, the basis for the benchmarks, are for dissolved metals (except for aluminum). I would suggest that the permit state this explicitly and indicate that the benchmarks may be conservative i n this regard.

b. My experience suggests that the Sector Q requirement to monitor for lead is unnecessary. Of the 25 Sector Q stormwater samples I have seen, lead concentrations exceeded the benchmark in one (which was attributed to sediment from the receiving water in the sample and not used) and were at least an order of magnitude below the benchmark in 19 of the other 24. An EPA review of DMRs for this sector might help clarify that trend.

c. The Massachusetts requirement to add copper to Sector Q monitoring in the 2008 permit seems appropriate.

d. The benchmark for iron should be based on an acute criterion rather than a chronic one. In the absence of such a criterion, I would suggest a benchmark for iron between 3.0 and 5.0 mg/L (implying an acute

chronic ratio of 3 to 5).

e. The Fact Sheet for the proposed permit states that new water quality criteria are currently under development for ammonia, copper, lead, selenium, and silver (page 54). I would suggest that the permit stipulate that benchmarks for those pollutants would be updated when the criteria are.

Response See monitoring response to comment essay. Currently there is no an acute freshwater criterion for iron; hence, EPA selected the chronic criterion.

Comment ID 0044.001.006 Issue Category: 6.2.1

Author Name: Bryon Clemence Benchmark Monitoring

Organization: Consulting Engineer

Regarding the scrutiny received by the benchmark monitoring requirement, the biggest concern appears to be applying water quality criteria to highly variable, end -of- pipe discharges and characterizing them with a single grab sample. Naturally, concentratio ns that exceed water quality criteria could cause water quality standards to be exceeded. Is that likely to occur? The acute water quality standards are defined by the EPA acute water quality criteria

- the short

- term average concentrations allowed in receiv ing waters. The issue could be stated, "Is the average short

- term concentration in the receiving water likely to exceed the standard if the benchmark is exceeded in a grab sample collected from a stormwater discharge within

the first 30 minutes?" A related question is, "Is benchmark monitoring likely to miss events that might exceed water quality standards?" The answer to the second question is no, because the monitoring targets higher pollutant concentrations (samples are collected during the first 30 minutes, and 72 hours separate measurable storm events).

The answer to the first question depends in part on the amount of rainfall (intensity and duration), the drainage area, and the benchmark. For example, in New England there might be 100 precipitation events per year, some of them very small. In a small industrial drainage area with pavement and roofs, there might be 50

- 75 "measurable storm events," and there could be a "first flush" effect (more likely for small drainage areas). Not all measurable storm events could be monitored (the 72

- hour requirement). M any of those storms would be less than three or four hours in duration, and the short

- term average concentration of pollutants in the receiving water would be less than the concentration in the stormwater discharge. The pollutant concentration in the disch arge would likely decrease during the storm; the stormwater discharge might even contribute to dilution in the receiving water at some point, particularly with longer storms. For2015 EPA MSGP Response to Comments June 4, 2015

306 most metals, the dissolved concentration (the basis of the standard) would be lower than the total recoverable concentration measured in the sample (the basis of the permit) as determined by the conversion factor. For instance, dissolved copper would be 83 percent of the total recoverable copper.

These effects would be more pronounced where a mixing zone was allowed for the discharge. Mitigating factors may be present as well. These include site

- specific conditions (e.g., dissolved organic carbon in the receiving water, other factors affecting pollutant bioavailability, and the sp ecies present). The acute criteria are developed from toxicity tests lasting 48 or 96 hours, and the duration of many storms is less than the time to the LC50 or EC50. It is also presumed that there are no laboratory errors with the analyses.

What this suggests is, first, the difficulty of monitoring something as variable as stormwater. It also suggests that water quality criteria applied to end -of- pipe stormwater discharges may result in benchmarks that are overly conservative in some ways. It does not suggest, however, how the benchmark monitoring might be improved in a costeffective way or even whether it should be changed at all.

Response See monitoring response to comment essay.

Comment ID 0051.001.003 Issue Category: 6.2.1

Author Name: John Hop ewell & David Darling Benchmark Monitoring

Organization: American Coatings Association

3. This section focuses on two related topics: (1) inclusion of aquatic life criteria for metals that reflect the

state-of-the- science with regard to bioavailability and toxicity, and (2) consideration of mixing of stormwater in receiving waters. The two t opics are related because the criteria for metals ultimately needed for protecting designated uses are based on bioavailability to aquatic organisms, which depends on water chemistry conditions in receiving waters (not in discharge outfalls or stormwater d itches or drains).

We urge the EPA to develop benchmarks for the MSGP that implement the latest science and policies when regulating the discharge of copper, zinc, and other metals from stormwater into receiving waters. To ensure that the EPA's targeted level of aquatic life protection is more accurately achieved from site to

site, the Biotic Ligand Model should be used for deriving benchmarks (which includes the EPA's nationally recommended BLM

- based WQC for copper), along with considerations of mixing and a

translator for metals. As such, the BLM can help identify stormwater discharge scenarios in which metals are of greater concern than the current or proposed MSGP benchmarks would indicate or, conversely, identify stormwater discharge scenarios where metals are of less co ncern than the benchmarks would indicate. The latter would limit an unnecessary allocation of resources to address a perceived problem that is not real. In addition to our concerns above, we share concerns raised by others in regards to existing MSGP sampl ing protocols, benchmark enforceability, and technological achievability of a WQC based

benchmark.

Response See monitoring response to comment essay.

Comment ID 0060.001.004 Issue Category: 6.2.1

Author Name: Katherine Preston Benchmark Monitoring2015 EPA MSGP Response to Comments June 4, 2015

307 Organization: Airports Council International

- North America (ACI

NA)

Section 6.2.1: Benchmark Monitoring

"This permit specifies pollutant benchmark concentrations that are applicable to certain sectors / subsectors. Benchmark monitoring data are primarily for your use to determine the overall effectiveness of your control measures and to assist you in knowing when additional corrective action(s) may be necessary to comply with the effluent limitations in Part 2."

As a member of the Federal Stormwater Association (FSWA), ACI

- NA is supportive of FSWA's position and recommendations for the elimination of the proposed benchmark monitoring requirements.

Benchmarks are described as providing the basis for determining the overall effectiveness of control measures and to assist in knowing when additional controls are needed to comply with the effluent

limitations de scribed in Part 2 of the draft permit. However, benchmark values for Sector S appear to have no direct basis in either stormwater control performance or protection of receiving water quality. If, as we understand it, benchmark concentrations are based on ambient receiving water standards, then they are inapplicable to assessing end of pipe concentrations of storm event discharges to streams experiencing storm event flows. EPA should find a more appropriate basis for evaluating the performance of

stormwater BMPs.

Response See monitoring response to comment essay.

Comment ID 0066.001.018 Issue Category: 6.2.1

Author Name: Timothy Carlstedt Benchmark Monitoring

Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 6.2.1.2 Benchmark Monitoring Schedule (Natural Background Pollutant Levels)

The 2013 MSGP allows a discharger to account for natural background pollutants when monitoring for benchmark exceedances. Natural background pollutants do not include, however, pollutants in run -on from neighboring properties. This provision then goes on to state: "However, permittees may be eligible to discontinue monitoring for pollutants that occur solely from run

- on sources and should consult the appropriate EPA Regional Office for related guidance."

UWAG respectfully suggests that EPA should make t his "related guidance" available with the 2013

MSGP.

Response See monitoring response to comment essay.

Comment ID 0068.001.007 Issue Category: 6.2.1

Author Name: Marilyn Guthrie Benchmark Monitoring

Organization: Port of Seattle, Washington

5. Benchmark Monitoring and Corrective Action Alternatives2015 EPA MSGP Response to Comments June 4, 2015

308 Section 6.2.1.2 of the MSGP describes how corrective action or additional benchmark monitoring are not required if the exceedance of the benchmark is attributable solely to the presence of that pollutant in the natural background. This section defines natu ral background pollutants to "include those substances that are naturally occurring in soils or ground water." We suggest that the definition be expanded to include pollutants which are deposited on the facility through aerial deposition not associated wit h facility operations. We appreciate the inclusion of this condition in the MSGP, and also suggest the addition of a similar condition for pollutant sources not related to industrial activities at the permitted facility.

This condition would provide that corrective action or additional benchmark monitoring are not required if dischargers demonstrate that benchmark exceedances are attributable solely to sources that are not related to industrial activities conducted at the facility, such as run

- on from adj acent properties, aerial deposition, or as generated by on

- site non

- industrial sources. As part of this condition, the discharger would be required to identify and evaluate all potential pollutant sources that could be contributing to the

benchmark exceeda nce, complete an assessment of the relative contributions of each pollutant source, and conduct an evaluation of all analytical monitoring data demonstrating that benchmark exceedances are caused by pollutants from sources not related to industrial activities at the facility. Response See monitoring response to comment essay.

Comment ID 0069.001.004 Issue Category: 6.2.1

Author Name: Philip McNeely Benchmark Monitoring

Organization: City of Phoenix, Office of Environmental Programs

Part 6.2.1.2. In some desert areas, infrequent rain events such as summer monsoons typically occur during

non- business (evening/night) hours. Typically, by the following business day, there would not be a discharge at the outfall to sample. Does this qualify as a valid reason to not collect a sample during a given quarter or required sampling period, as referenced in this part and in Part 6.1.6? Will the permittee be considered to be in violation of the permit conditions in such a circumstance? In some quarters in arid regions, there might be only one or two rain events each wet season that produces enough discharge to sample, but they may only occur and create a discharge after hours.

Response See monitoring response to comment essay.

Comment ID 0070.001.015 Issue Category: 6.2.1

Author Name: Beth Goodnough Benchmark Monitoring

Organization: Western Fuels Association Inc.

Part 6.2.1. As EPA recognizes in the proposed Fact Sheet, there have been limited analyses of benchmark monitoring to date. In particular, there is no clear connection between the benchmarks in the MSGP and control measure effectiveness at mining sites. There has been no analysis done concluding that a certain degree of pollutant reduction is generally achievable. Exceeding a benchmark will force facilities to review control measures and install any new measures that are technically and economically practic able, even if pollutant load reduction from doing so is minimal. EPA should abandon the benchmark monitoring program for mining facilities, as it does not work and is not justified.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

309 Comment ID 0071.001.009 Issue Category: 6.2.1

Author Name: Robert Barnes Benchmark Monitoring

Organization: Midas Gold Inc. (MGI)

8. Benchmark Monitoring

The prior 2008 permit provided a better approach and guidance for managing non

- detects. The proposed permit is overly

- prescriptive. With respect to run

- on of pollutants from legacy properties, it is difficult to

ascertain a situation where such a flow shou ld not be considered a natural background contribution to the

down- gradient site, especially where the down

- gradient owner is a bona fide prospective purchaser (BFPP). The idea that run

- on from neighboring properties or legacy sites would not be considered part of the natural background is not reasonable, and the "downstream" operator/owner should not be burdened by the "upstream generator".

Response See monitoring response to comment essay.

Comment ID 0073.001.016 Issue Category: 6.2.1

Author Name: Ke lly Norton Benchmark Monitoring

Organization: Arizona Mining Association (AMA)

Part 6.2.1.2: The benchmark monitoring provisions under which a facility can avoid corrective action, or additional monitoring are too narrow and not appropriate for conditions in the arid southwest. For example, in Arizona, the background concentration of TSS, for example, can easily exceed the 100 mg/L benchmark. However, according to Section 6.2.1.2, corrective action and additional monitoring can be avoided only if the exceedance of a benchmark value is determined to be attributable solely to the

presen ce of that pollutant in the natural background. This appears to require zero facility contribution, which is not workable. Rather, a facility should be able to use the natural background exemption if the average concentration of a pollutant in runoff from the facility outfalls does not exceed the benchmark when the natural background concentration is subtracted from the average concentration (i.e., when the facility's contribution, taken alone, would not exceed the benchmark). In addition, making the natura l background exemption unavailable based on contributions from upstream sources outside of the facility's control is inappropriate because the facility cannot control off

- site sources and it is not appropriate to require treatment of stormwater impacted by sources that are not under the control of the permittee.

Response See monitoring response to comment essay.

Comment ID 0080.001.003 Issue Category: 6.2.1

Author Name: Louis Warchot and Michael Rush Benchmark Monitoring

Organization: The Association of American Railroads (AAR)
2. Most Benchmark Parameters are of Commonly Occurring Metals in Soil and Surface Water and Run

On from Non

- Industrial Sources.

Regarding benchmarks (see pages 50

- 52 of the Fact Sheet), benchmark monitoring has not proven to be a reliable indicator of a facility's discharges. EPA acknowledges that there are frequent exceedances for many of the current benchmark values, and none of the reviewed facilities documented a reduction in2015 EPA MSGP Response to Comments June 4, 2015

310 exceedances after corrective actions. EPA acknowledges that facilities have been "unable to find cost

effective solutions." AAR echoes many of the comments in the fact sheet, including:

• "Monitoring req uirements do not adequately characterize the pollutant concentrations in stormwater discharges";

• "30 minute first flush samples are not representative of the longer term exposure used to derive the water quality criteria that form the basis for most benchmarks."

These are major issues with the benchmark monitoring. AAR recommends that this monitoring be eliminated in the MSGP. If benchmark parameters are to remain, AAR agrees with the proposed issuance of a waiver from benchmark monitoring for facilities covered under the 2008 permit that demonstrate a past exceedance due to factors beyond the permittee's control. However, the elimination of benchmark values appears appropriate given the evaluation data in EPA document EPA -HQ-OW-2012-0803-0002 ("200 8 MSGP Benchmark Discharge Montoring Report Analysis and SWPPP Compliance Review"). The data show that for several benchmark parameters that are commonly found in soils and the environment, the percentages of facilities exceeding the benchmark limits are high, and also that costly corrective actions in most cases do not result in benchmark compliance for subsequent sample monitoring events.

In many cases, exceedances are due to natural background conditions or run on beyond a facility's

reasonable contro l. It appears from the discussion on page 56 of the Fact Sheet that exceedances due to

run- on sources would not constitute non

- compliance, consistent with court decisions and longstanding EPA policy. It is likely that run

- on from most upgradient adjacent properties will be outside of the control of the permittee. For example, several of the metals included for monitoring are naturally occurring in the soil in various regions across the country.

However, determining whether exceedances for the benchmark v alues are attributable to background

conditions or run

- on can be difficult, time consuming, and costly to determine. The requirement to design controls due to exceedances attributable to background conditions and run

- on is not appropriate for pollution pre vention and would be contrary to CWA jurisprudence. For combined or off

- site systems background conditions can be attributed to other municipalities, industries or another private or government entity. Also, many adjacent sites have sheet flow and other no n- point discharge locations that make site specific BMPs/treatment impractical. Perhaps funds should be directed to common sense approaches for stormwater management, including the BMPs described in the proposed MSGP, instead of expensive end -of- pipe treat ment for perceived violation(s) of water quality standards.

There are many reasons why benchmark exceedences are beyond the control of the permittee. First, benchmarks have been set at extremely low concentrations for common metals already present at

si

gnificant concentrations in the receiving surface waters and in runoff water from uncontaminated soil at the site, with these parameters naturally occurring. On the top of this list must certainly be magnesium, one of the two most common water hardness ions (calcium being the other). The benchmark for magnesium is set at 0.074 mg/L, yet it is present in virtually every natural surface water at levels greater than ten times that amount. EPA even bases other benchmarks on the hardness of the receiving waters up to 250 mg/L hardness, which most likely would contain magnesium in the tens of mg/L. Most laboratories do not report magnesium down to the level of the benchmark because magnesium is virtually always present in surface and ground waters at far higher co ncentrations. Also, laboratory preparation blanks can often equal or exceed the 0.074 mg/L benchmark. This magnesium benchmark is impractical, and should simply be removed from the MSGP. Examples of other benchmarks for metals that are ubiquitous in the en vironment are aluminum, copper, iron, lead, and zinc. These metals are also classified as common laboratory contaminants.2015 EPA MSGP Response to Comments June 4, 2015

311 When total metals are analyzed as required by the MSGP, the benchmarks at the lower hardness levels, or for some of the newly proposed "saline" water benchmarks, will be frequently exceeded for these metals when small quantities of TSS are present in the runoff water. TSS values caused by natural topsoil alone can be substantially lower than the TSS benchmark of 100 mg/L, yet can still cause the low benchmark levels to be exceeded once the total metals acid digestion releases these naturally occurring metals into the test sample solution. The MSGP does acknowledge that some benchmarks might be exceeded by the presence of naturally occurring soil constituents, and has provisions for relief through the use of background sampling. However, this procedure can be very difficult, expensive, and time consuming, making it impractical. Even if successful, the end result of the background study for most facilities is

obvious- that these common metals are frequently present at benchmark levels or higher, especially after a major storm event, even when the industry does not utilize or expose any materials containing these

metals.

There are a numbe r of steps EPA could take to rectify the problem with the benchmarks for metals. As mentioned, EPA could eliminate the benchmarks.

EPA also could raise the benchmarks for these metals to compensate for naturally occurring metals in the soil to the point where the concentrations would nearly always be significantly higher (statistically) than

what can be detected in stormwater runoff from non

- industrial sites. For most of the common parameters used as benchmarks, values of about five times higher would li kely be sufficient. Benchmarks could be calculated based on existing national stormwater runoff data from non

- industrial urban or suburban areas (not pristine environments). The new benchmarks could then be incorporated into the MSGP permit.

EPA could permit the use of a modified correction procedure if an industrial site believes its runoff is not caused by industrial materials used or stored on its property. Modification of the MSGP background correction procedure is necessary because the proposed proc edure is impractical and inadequate in that it provides relief only in the event that the background sample actually exceeds the benchmark value. (The procedure offers no relief if the natural background is a significant or even the major contributing fact or to the benchmark exceedence. Natural background contamination detected at values such as 95 percent of the benchmark is not allowed to be subtracted from the results detected from the MSGP sample.) In addition, the documentation and selection parameters required for the location of the background runoff sampling site are impractical. Permission must be obtained to sample the background site, which might not be granted where there is potential run on from industrial sources. The site must be thoroughly

in vestigated and documented. Available geology, vegetation and soil information must be provided, and roads, outfall, or human made structures must be accounted for. The historical use of the site must not include known mining, forestry, or other human activities upstream of the proposed reference sampling site. This last requirement is restrictive to the point of being impractical, and even if overcome, the amount of research time and effort involved makes this provision useless. The limiting of a background sample site to essentially a pristine environment devoid of any human activity is misplaced, since the purpose of this rule to insure that the industry is not contributing additional pollutants to urban or

suburban stormwater runoff. If there are to be be nchmarks the appropriate comparison should be to typical urban or suburban stormwater runoff that is not directly impacted by industrial runoff from either the test site or another MSGP permitted industrial facility upstream.

EPA could base the benchmar ks on dissolved, not total metals, since dissolved metals are primarily used for water quality criteria and more representative of actual bioavailable concentrations. This solution is not ideal, because the difficulty of measuring dissolved metals at the u ltra- low benchmark concentrations is high. Many of the benchmarks, even for total metals, should be analyzed using only clean sampling techniques and ultraclean sampling bottles, and the analytical methods used by the laboratory should be

trace level ICPMS methods. However, the filters used in these procedures are a source of contamination for many common metals, and these must be taken into account. Samples must be filtered in the field, and2015 EPA MSGP Response to Comments June 4, 2015

312 the first several hundred milliliters of water through the filter must be discarded. Field blanks must also be collected of reagent water that has been passed through one of the sampling filters. EPA should allow subtraction of lab preparation blanks and also field filter blanks from the sample results unless they are

o bviously excessive, in which case resampling may be required. Even if benchmarks are based on dissolved metals, the concentrations would need to be increased.

EPA also could use a risk

- based procedure that incorporates real life situations. The current benchmarks are not representative of water quality impairment in that they are based on total metals not typically bioavailable or potentially a cause of impairment. Virtually all the metals present in stormwater runoff are expected to come from the soil suspended in the runoff, and are not present in dissolved form. Water quality parameters should be based on dissolved metals, or at least metals that are available to enter a solubility equilibrium with the water phase over time. Furthermore, the current be nchmark values are set right at the water quality concentration, without accounting for the receiving stream. All water quality criteria when written into permits, are, or should be, based on the receiving stream. Some minimal receiving stream dilution fac tor should be applied to the stormwater runoff, raising the lowest level benchmark values. The higher benchmark levels would serve to eliminate some of the difficulty in obtaining "clean catch" samples of filtered water in the field discussed above. Finally, if the runoff is to be water quality risk

- based, then capturing stormwater runoff should be representative of the runoff, not just a grab sample captured in the first thirty minutes of runoff. The first thirty minutes is often not indicative of the runoff for an entire rain event, especially for longer rain events that generate the greatest amount of runoff. The first flush concentrations can be more than ten times higher than the flow -weighted average. This helps to support having the benchmarks set a multiple of five, as discussed previously.

In any approach to background sampling and resultant permit conditions, EPA should explicitly acknowledge in the MSGP that permittees are not responsible for background amounts or pollutants added by other sources or entities (e.g., run on, air deposition), as long recognized under the CWA and EPA regulations. See, e.g., 40 C.F.R. Part 122. Regardless of the approach used, EPA should ensure permittees are not expected to remove pollutants added by other entities from their permitted stormwater discharges.

Response See monitoring response to comment essay. Additionally, in response to the comment that modification of the MSGP background correction procedure is necessary because it provides relief only in the event that the background sample actually exceeds the bench mark value, EPA disagrees. The permit does not necessarily require a corrective action to be taken in response to a four quarterly average benchmark exceedance. Instead, it requires permittees to review their SWPPP “to determine if modifications are

necess ary to meet the effluent limits in the permit.” If a permittee with a four quarterly average benchmark exceedance determines that the effluent limits are being met, no corrective action is needed. Additionally, as noted by the commenter, permittees can als o discontinue benchmark monitoring (and associated corrective action reviews) if they meet the natural background exception. Regarding the comment on field sampling protocols, EPA refers the commenter to EPA’s industrial stormwater monitoring guide which d escribes EPA’s expectations: http://water.epa.gov/polwaste/npdes/stormwater/upload/msgp_monitoring_guide.pdf

.

Comment ID 0083.001.011 Issue Category: 6.2.1

Author Name: David Wagger Benchmark Monitoring

Organization: Institue of Scrap Recycling Industries, Inc. (ISRI)2015 EPA MSGP Response to Comments June 4, 2015

313 Benchmark Monitoring Should Be Revised, If Not Eliminated, Because with Current Benchmarks, It Does Not Truly Reflect Whether Control Measures and BMPs Are Operating Effectively and Leads to Continued Cycles of Exceedances and Corrective Actions.

Although proposed §6.2.1 ("Benchmark Monitoring") contains requirements nearly identical to the

benchmark- monitoring requirements of the 2008 MSGP, the accompanying Fact Sheet (Document EPA

HQ-OW-2012-0803- 0015) contained substantial discussion of and new information about benchmark monitoring. The discussion included preliminary results from research by U.S. EPA (Document EPA

HQ-OW-2012-0803- 0002) suggesting that complete SWPPPs have a surprisingly strong association with benchmark exceedances and that corrective actions are not particularly effective in reducing subsequent

exceedances.

The simplest explanation for these preliminary findings is that benchmarks, at their current values, are neither appropriate nor accurate indicators of whether a SWPPP has been effectively implemented and whether control measures and BMPs are operating effectively.

To understand this explanation, reviewing the origin of benchmarks is helpful. Benchmarks were introduced in the 1995 MSGP in the preamble:

EPA established ‘‘benchmark'' concentrations for the pollutant parameters on which monitoring results had been received. The ‘‘benchmarks'' are the pollutant concentrations above which EPA determined represents a level of concern. The level of concern is a concentration at which a storm water discharge could potentially impair, or contribute to impairing water quality or affect human health from ingestion of water or fish. (60 Federal Register 50,824

- 50,825)

Initially, U.S. EPA identified a benchmark as the threshold concentration in a stormwater discharge that by direct discharge into a receiving water (implied) could potentially begin to lead to an impairment of water quality in that receiving water. U.S. EPA based the benchmarks largely on "acute aquatic life, fresh water ambient water quality criteria", unless such a value was below the analytical method detection limit for that parameter (this was the case for copper, but its benchmark was subsequently lowered by >75% to

the same water

- quality basis).

It is interesting to note that industrial sectors that had collected and submitted discharge data for more chemical parameters prior to the 1995 MSGP apparently ended up, somewhat arbitrarily, with more benchmark monitoring in the 1995 and subsequent MSGPs than other sectors that had collected data on fewer parameters.

The preamble continued describing benchmarks for a slightly different purpose:

The benchmarks are also viewed by EPA as a level, that if below, a facility represents little potential for water quality concern. As such, the benchmarks also provide an appropriate level to determine whether a facility's storm water pollution prevention measures are successfully implemented. The benchmark concentrations are not effluent limitations and should not be interpreted or adopted as such. (60 Federal Register 50,825)

While U.S. EPA logically reasoned that concentrations below benchmarks pose little concern for impairing water quality, it made a large logical leap to assert that these benchmarks are the appro priate levels for determining whether (in current parlance) control measures and BMPs are operating effectively.

Not posing a concern is not tantamount to operating effectively; there is a substantial gap between the two. It may be and likely is that le vels greater than current benchmarks also indicate that control measures2015 EPA MSGP Response to Comments June 4, 2015

314 and BMPs are operating effectively because the control measures and BMPs cannot intrinsically, even at optimal performance in combination, reduce concentrations in stormwater runoff t o be discharged below some inherent limit that is greater than benchmarks. If that stormwater discharge further does not enter the receiving water of concern directly (e.g., first enters a storm sewer or a wet

- weather stream that also

receives stormwater f rom elsewhere), it is entirely possible that that stormwater discharge does not pose a

water- quality concern at the point of entering the receiving water. That U.S. EPA further asserted, and stills asserts (albeit with different language), that benchmarks are not effluent limits and should not be adopted as such may have been implicit recognition of this gap concerning the meaning of benchmarks.

Given U.S. EPA's preliminary findings above and the facts that benchmarks are not related to the intrinsic

eff ectiveness of control measures and BMPs and have not substantially changed since 1995 [FN6], it seems that the proposed combination of current benchmarks and currently available "control measures that are technologically available and economically practicable and achievable in light of best industry practices" (i.e., "feasible" control measures; see the proposed definitions of "minimize" and "infeasible") would continue to produce cycles of exceedances and corrective actions, even with effective implementa tion of feasible control measures.

If reducing exceedances and corrective actions are MSGP goals, then the logical solution would be either

to raise the benchmarks to reflect the intrinsic effectiveness of feasible control measures or to discontinue

ben chmark monitoring in favor of better implementation of feasible control measures and more visual monitoring.

In partial response to U.S. EPA's request for comment on the use of a risk

- based approach to monitoring, developing such an approach could be expected to involve similar questions and issues as those pertaining to finding an appropriate set of benchmarks that reflect the performance of feasible control measures.

Off- Site Sources of Benchmark Parameters Over Which The Permittee Can Demonstrate Little Or No Control Should Be Excludable from Reported Discharge Concentrations and Should Not Count Towards a Benchmark Exceedance that Results in Corrective Action and Continued Monitoring.

Proposed §6.2.1.2 ("Benchmark Monitoring Schedule") includes a section on natural background pollutant levels which is essentially unchanged from that in the 2008 MSGP. This section still provides an extremely limited basis for excluding the contribution o f off

- site sources of benchmark parameters from

measured stormwater

- discharge concentrations for the purposes of determining benchmark exceedances and the need for corrective action and continued monitoring based on such exceedances. Given that the permit is intended to cover stormwater discharges associated with the permittee's industrial activities (i.e., facility sources of benchmark parameters potentially present in stormwater discharges from the permittee's facility), the section's allowable exclusions (e.g., no net average facility contribution whatsoever) and the specific disqualification from exclusion of "pollutants in run

- on from neighboring sources which are not naturally occurring, such as other industrial sites or roadways" are inconsistent with the intent of the permit and thus unreasonable. Permittees should not be held responsible for benchmark exceedances and subsequent corrective action and continued monitoring caused in whole or part by

contributions from off

- site sources of benchmark param eters over which the permittee has little or no control (e.g., dry deposition, raw precipitation, and run

- on from adjacent facilities and public roadways). This section should be revised to allow permittees for the purposes of determining benchmark

exceeda nces and the need for corrective action and continued monitoring to exclude from reported

stormwater- discharge concentrations contributions from off

- site sources of benchmark parameters over which the permittee can demonstrate little or no control.2015 EPA MSGP Response to Comments June 4, 2015

315 [FN6] For Sector N, the benchmarks have not changed, except for a prior >75% reduction in the copper benchmark and for the change from fixed to hardness

- based (i.e., variable) benchmarks for copper, lead,

and zinc.

Response See monitoring response to comment essay. EPA also clarifies that the permit does not necessarily require a corrective action to be taken in response to a four quarterly average benchmark exceedance. Instead, it requires permittees to review their SWPPP “to determine if modifications ar e necessary to meet the effluent limits in the permit.” If a permittee with a four quarterly average benchmark exceedance determines that the effluent limits are being met, no corrective action is needed.

Comment ID 0085.001.039 Issue Category: 6.2.1

A uthor Name: Zachary Griefen et al. Benchmark Monitoring

Organization: Conservation Law Foundation et al.

9. In Section 6.2.1.2 of the Permit, which covers required benchmark monitoring, EPA should specify that it is a violation of the permit for any permittee to conclude its corrective action process with a determination "that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice" without having first exhausted all of the

BMPs that EPA has identified as available for the industrial sector.

10. In Section 6.2.1.2 of the Permit, which covers required benchmark monitoring, EPA should specify that it is a violation of the permit for any permittee to conclude its corrective action process with a determination "that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice" without having first exhausted all of the

BMPs that EPA has identified as available for the industrial sector.

Response See monitoring response to comment essay.

Comment ID 0085.001.048 Issue Category: 6.2.1

Author Name: Zachary Griefen et al. Benchmark Monitoring

Organization: Conservation Law Foundation et al.

18. Remove the monitoring exemption for "data not exceeding benchmarks" found in Part 6.2.1.2 of the

MSGP

Response See monitoring response to comment essay.

Comment ID 0087.001.023 Issue Category: 6.2.1

Author Name: Kathleen Martin Benchmark Monitoring

Organization: Alcoa Inc.

Section 6.2.1 Benchmark Monitoring

•Alcoa believes it is time to critically evaluate the entire concept of benchmarks and benchmark monitoring for the storm water permitting program. The premise behind benchmarks and benchmark2015 EPA MSGP Response to Comments June 4, 2015

316 monitoring made in the 1995 MSGP has not been substantiated nor does Alcoa believe it will be substantiated. Untold numbers of dollars are being spent on storm water sampling, benchmark analysis and review, and subsequent SWPPP revisions and BMP modifications and yet there is not any scientific evidence that said monies being spent have impacted water quality from storm water associated with industrial activity. Alcoa believes that EPA should suspend the benchmark sampling and associated SWPPP activities associated with benchmark sampling until this issue has been thoro ughly vetted.

•However, if the Agency opts to retain benchmarks, Alcoa disagrees with the action plan that is required in the draft MSGP for the exceedance of benchmarks. The issue comes when natural rainfall during high intensity rain events creates ele vated levels of TSS in the first flush. This will naturally be above benchmark levels even though normal rainfall events will not trigger such action(s).

Section 6.2.1.2 Natural Background Pollutant Levels

• Aluminum is a natural background material. T he top soil of the earth is typically 4

- 8% aluminum as an average. Failure to take this into account can lead to misleading monitoring results.

Response See monitoring response to comment essay.

Comment ID 0089.001.004 Issue Category: 6.2.1

Author Na me: Kerry Kelly and Chuck White Benchmark Monitoring

Organization: Waste Management (WM)

The exemption for natural background pollutants is unnecessarily restrictive by allowing its application only where the exceedances are "solely" attributable to natural background levels. [Section 6.2.1.2]

While WM agrees with the purpose of the "natural background pollutant levels" exemption in Section 6.2.1.2 of the proposed Permit, WM is concerned that the use of the term "solely" may impose an unduly restrictive condition on the exemption that is inconsistent with the exemption's purpose. For example, if a facility is located in a region with iron

- rich soils, its storm water discharges may frequently exceed benchmarks because of the naturally occurring iron levels. If, however, a particular sampling event shows background concentrations of 0.90 mg/L Fe in storm water flowing onto the facility, and the facility itself contributes 0.20 mg/L to the discharge flow off, the total discharge would exceed the 1.0 mg/L benchmark. WM is concerned that an adversarial party could argue that the exceedance was not " solely" attributable to background concentrations because it was the facility's relatively small addition of 0.20 mg/L that pushed the total discharge over the benchmark for iron.

WM recommends revising the exemption under "Natural background pollutant levels" by allowing the exemption to apply if the facility's discharge

- excluding the contribution from natural background

- would not cause a benchmark exceedance. WM suggests the following revision to Section 6.2.1.2:

Following the first four quarters of benchmark monitoring (or sooner if the exceedance is triggered by less than four quarters of data, see above), if the average concentration of a pollutant exceeds a benchmark value, and you determine that your discharge would not have exceeded the bench mark in the absence of the natural background concentrations that exceedance of the benchmark is attributable solely to the presence of that pollutant in the natural background, you are not required to perform corrective action or additional benchmark monitoring provided that: ....

Response2015 EPA MSGP Response to Comments June 4, 2015

317 See monitoring response to comment essay.

Comment ID 0089.001.010 Issue Category: 6.2.1

Author Name: Kerry Kelly and Chuck White Benchmark Monitoring

Organization: Waste Management (WM)

Concerns with Benchmarks and Benchmark Monitoring

EPA is continuing to require benchmark monitoring as an indicator of the performance of the measures undertaken to meet the effluent limitations contained in the permit.

The draft Multi

- Sector General Permit (MSGP) proposes to retain the same benchmark monitoring requirements as the 2008 MSGP and modifies metals benchmarks for discharges to saline waters. EPA notes that the benchmark monitoring requirements are not effluen t limits, but instead provide an indication to the operator of the performance of their control measures. Accordingly, if the average of the four quarterly samples for any parameter exceeds the benchmark, the facility must review the selection, design, ins tallation, and implementation of its control measures to determine if modifications are necessary to meet the effluent limits of the permit

-- but the exceedance is not considered a violation of the permit.

In the event of a benchmark exceedance, the facility must make any necessary modifications to the control measures and continue quarterly monitoring until, either:

•The facility has completed four additional quarters of monitoring for which the average does not exceed the benchmark, or

•Makes a det ermination that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice, either:

o to meet the technology

- based effluent limits, or

o are necessary to meet the water q uality

- based effluent limitations in the permit.

In this case the facility must continue monitoring once per year and notify the EPA of this determination. Facilities may discontinue monitoring if the average of the four monitoring samples for any parame ter

does not exceed the benchmark.

The utility and validity of benchmark monitoring requirements is highly questionable, and the requirements have come under considerable scrutiny since they were established in the 1995 MSGP. WM

does not believe that the Benchmarks are necessarily valid indicators of storm water, pollution control

- primarily because storm water events are highly variable. A particular benchmark may not be applicable

on a site

- specific basis due to the wide array of factors that affect an individual discharge. The benchmark monitoring requirements are overly burdensome, and control measure modifications made in response to exceedances do not necessarily reduce occurrence of future exceedances.

For example, in 2008 EPA conducted an analysis of benchmark monitoring data that was available in the eNOI system and performed a compliance review of a random sample of SWPPPs and DMR data. One of

the conclusions of that review was:2015 EPA MSGP Response to Comments June 4, 2015

318 None of the facilities reviewed had documented a clear reduction in benchmark exceedances after implementing corrective actions; most facilities continued to have benchmark exceedances after the corrective actions. [FN3]

WM is concerned that the Benchmarks and monitoring requirements do not adequately characterize th e pollutant concentrations in storm water discharges. We have concerns about the variability of storm water discharges and whether the discharges can be sufficiently characterized from the limited number of grab samples required under the MSGP. In addition , WM is concerned that the benchmarks are not valid indicators of water quality concerns from storm events, for a variety of reasons, including:

•the benchmark may not account for the dilution of the discharge that occurs during a storm event;

•30 minu te first flush samples are not representative of the longer term exposures used to derive the water quality criteria that form the basis for most benchmarks; and

•EPA is seeking comment on alternatives to benchmark monitoring requirements under the MSGP.

We have already seen the Benchmarks proposed as a basis for Numeric Action Levels in California and elsewhere. Fortunately, California has apparently backed away from turning Benchmarks into NALs and

as a basis for notifications of violations.

Facilities that report exceedances of benchmark values are frequently unable to find cost -effective modifications to their management practices to eliminate these exceedances. In some cases, this may be due to natural background concentrations, or other factors beyond a facility's reasonable control. WM recommends that that EPA provide relief from Benchmarks by providing a waiver from benchmark monitoring for facilities covered under the 2008 permit that demonstrate that a past benchmark exceedance was due to factors not under their control, and that there has been no change to these factors since they last conducted benchmark monitoring. A facility seeking a waiver from the benchmarks would be able to recommend alternative methods of determining compliance. This could include alternative benchmarks or alternative methods to minimize industrial discharges to storm water.

[FN3] See Attachment to this letter: 2008 MSGP Benchm ark Discharge Monitoring Report Analysis and SWPPP Compliance Review that is part of the EPA Docket on this proposed permit

Response See monitoring response to comment essay.

Comment ID 0092.001.007 Issue Category: 6.2.1

Author Name: Jeffrey Longs worth Benchmark Monitoring

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

EPA's proposed monitoring requirements (Part 6) continue their reliance on "benchmark monitoring," while also seeking comments on a "risk

- based" monitoring approach. FSWA provides thorough comments tracing the historic development, implementation, and reli ance on benchmark monitoring and concludes that there is no longer any need or justification for benchmark monitoring.

Based on EPA's own analysis of 20 random sites it chose to assess compliance with the 2008 MSGP, benchmarks clearly are not serving their intended purpose and, more significantly, are overstating the lack of compliance with the MSGP or WQBELs. EPA should eliminate benchmark monitoring because after2015 EPA MSGP Response to Comments June 4, 2015

319 nearly 20 years it has not been able to justify such an approach despite numerous opportuni ties. In addition, EPA has not proposed sufficient detail to justify moving in a risk

- based direction at this time.

Response See monitoring response to comment essay.

Comment ID 0092.001.037 Issue Category: 6.2.1

Author Name: Jeffrey Longsworth Benc hmark Monitoring

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Part 6 - Monitoring

Benchmark Monitoring: EPA first devised its benchmark process roughly 20 years ago, which is more than a reasonable time period to determine whether EPA should or should not continue its benchmark experiment. These comments will trace EPA's history, founda tion, justifications, and support for benchmark monitoring; however, the resulting conclusion is that EPA cannot support continued benchmark monitoring. In 1995, EPA was able to justify benchmark monitoring on its theory that such monitoring would provide useful "flags" or indicators to industrial facility operators regarding the benefits of their technology

- based controls and potential environmental impacts. That theory was enough to give the program an opportunity to prove that benefits would result from the investment in analytical monitoring and comparing those results to an existing resource of water quality standards (WQS) and review of best management practices (BMPs).

But the foundation upon which EPA created its benchmark monitoring scheme was arbitrary at best and has never resulted in the type of robust process that EPA had hoped for. In fact, the basis for benchmark monitoring was never grounded in science and EPA has never fully justified how and why a facility should use, for example, ambient low flow in

- stream WQS to gauge technology

- based control strategies for stormwater discharges that are episodic, high flow, variable, and likely exist a significant distance from the type of receiving stream used as the bases for the WQS. In addition, the 1995 MSGP did not include any provisions setting forth water quality

- based effluent limitations. Hence, while benchmarks may have been ill

- conceived for measuring technology

- based effluent limits and inappropriately applied many water quality criteria to i ndustrial stormwater discharges contrary to their CWA intended purpose or relation to how they are derived, their use in the 1995 MSGP provides some consideration of WQBEL requirements associated with EPA's NPDES permit program.

In the draft MSGP, EPA has established an entire section dedicated to applying WQBEL requirements and compliance for industrial stormwater dischargers. Therefore, in retrospect, any relationship that benchmarks may have had to WQBELs in 1995 is irrelevant today. However, the fact that the water quality criteria that are used to establish benchmarks were never derived for such use or for assessing the impacts of stormwater discharges from industrial sites remains as a scientifically devoid remnant of the 1995 MSGP development.

Fur ther, even if the bases for the original or revised benchmarks could be defended from a scientific or legal basis, the methodology EPA used to apply them to various industries was unquestionably arbitrary and capricious. Determining which industries must engage in benchmark monitoring was even less scientific and equally indefensible. The 1995 MSGP explains the process beginning at 60 Fed. Reg. 50,826 (Sept. 29, 1995), but there was even more uncertainty and randomness associated with the group permit appli cation monitoring process that generated the data EPA used in to determine final industry benchmark mandates. Every group had to collect data from ten percent of the group members for certain2015 EPA MSGP Response to Comments June 4, 2015

320 basic parameters, but then each group and each monitoring facili ty was given total discretion whether to monitor for other "likely" pollutants or stick to the basic list of parameters.

In practice, some groups went above and beyond in an effort to find any and all pollutants discharged from group member sites, while other groups never monitored for any additional pollutants. As one could predict based on EPA's rather random data analysis, the more pollutants you sampled for, the more likely you would trigger EPA's benchmark monitoring for the entire industry. Further, EPA did not use any discretionary authority to demand monitoring for any additional pollutants; either its random process resulted in monitoring requirements or the entire industry was excused from benchmark monitoring. A simple review of the existing benchmark monitoring mandates reveals numerous inconsistent and illogical results due to the arbitrary nature of EPA's original process.

The net result of the current benchmark monitoring scheme is that some less fortunate industries are

burdened with a nev er

- ending "do

- loop" of monitoring and corrective action while other industries instead direct their focus on visual monitoring and BMP implementation without the added burden of benchmark monitoring.

But EPA is well aware of this because benchmarks have been controversial and challenged during every MSGP since 1995. The proposed Fact Sheet (at 51) explains many of the criticisms from various divergent stakeholders, but offers little in terms of EPA support of benchmark monitoring. Even today,

EPA does not seem to be able to reach conclusions or provide any basis for assessing which group achieves greater environmental protection or permit compliance.

On several occasions in the past, EPA announced plans to do the necessary data analysis and determine

whe ther benchmark monitoring provided any benefits or served the purposes for which they were created, but it has never followed through on its plans. In its MSGP 2000 and 2008 Fact Sheets, EPA committed to analyzing all of the monitoring data and protocols a ssociated with benchmark monitoring since 1995 to determine if benchmark monitoring provides "useful indicators of control measure inadequacies or potential water quality problems." MSGP 2008 Fact Sheet at 96. Whether for fear of what it would find,

lack o f resources, or lack of interest, EPA never produced

- or at least EPA has never released - any analyses that would support or defend the use of benchmarks.

In 2006, EPA hired the National Research Council (NRC) to conduct a comprehensive external review of municipal, construction, and industrial stormwater programs ("The broad goals of the study were to better understand the links between stormwater pollutant discharges and ambient water quality, to assess the state of the science of stormwater management, and to make associated policy recommendations."). In particular, EPA set forth five specific areas of particular interest that it expected the NRC to address, including asking the NRC to:

Consider how useful monitoring is for both determining the potential of a discharge to contribute to a water quality standards violation and for determining the adequacy of stormwater pollution prevention plans. What specific parameters should be monitored and when and where? What effluent limits and benchmarks are needed to ensure that the discharge does not cause or contribute to a water quality

standards violation?

Contrary to EPA's characterizations in its draft Fact Sheet (at 51), the NRC denigrates national benchmark monitoring. In assessing EPA's benchmark mon itoring program, the NRC found that the MSGP's approach "has largely been a failure." See NRC Report at 439. Reviews of benchmark monitoring data "showed no relationship between facility type and stormwater discharge quality. The cited reasons for the poor relationship included variability in sampling parameters, sampling time, and sampling strategy

- that is, poor data." Id. NRC also found that "it is not clear whether [benchmark]2015 EPA MSGP Response to Comments June 4, 2015

321 exceedances provide useful indicators of stormwater pollution prevention pla n inadequacies or potential water quality problems." Id at 30. Finally, the NRC concluded that a "national numeric benchmark should be avoided..."( Id at 443) and, if NRC had its way, "the current benchmark monitoring conducted by

MSGP facilities would be el iminated." Id at 435.

EPA's draft Fact Sheet says that the NRC report recommended a "risk

- based" approach, and then EPA seeks comments on using such an approach for the MSGP. Fact Sheet at 51. But EPA's characterization of the NRC program is not entirely accurate. The NRC did discuss the benefits of a monitoring program that would help to assess various industries so that they could be tiered as low, medium, or high risk operations; however, this approach was embedded into a new permitting scheme administ ered by municipalities within a revised Clean Water Act, sometime in the future. The NRC stressed that beneficial control of stormwater discharges is necessarily a local or watershed issue due to the highly variable

factors that dictate local weather and t opography, as well as the needs of the local water resources. The NRC is clearly not promoting a national program or one

- size -fits- all approach. Some of EPA's main concerns with the NRC report were that many of its recommendations would require Congress to amend the CWA before any such recommendations could be acted upon.

To support the draft MSGP 2013, EPA drafted a memorandum that purports to assess the benefits of benchmark monitoring titled, "2008 MSGP Benchmark Discharge Monitoring Report Analysis an d SWPPP Compliance Review." But, that memorandum actually supports the premise that benchmark monitoring provides no benefits to facilities forced to invest in that scheme. FSWA is not endorsing EPA's methodology or analysis which serves as the basis for the memorandum. Attachment B of the memorandum is a compliance review that EPA randomly conducted of 20 facilities. Several interesting conclusions could be drawn from Attachment B, in light of the collective experience of FSWA's membership. These include t he following:

•35% of facilities randomly sampled for EPA's analysis used EPA's SWPPP template. FSWA's experience is that many if not most facilities that develop their own SWPPP go well beyond EPA's SWPPP template, but we can assume that at least 35% sh ould achieve full compliance using EPA's template.

•All but one facility submitted a complete SWPPP, so we can assume that in total, 89% of the facilities believed that they had satisfied the MSGP's technology

- based non

- numeric effluent limits (i.e., BAT).

•However, 100% of the facilities surveyed had vi olated benchmarks, which means that either (1) EPA's SWPPP template and each facility's belief that it had achieved BAT through its SWPPP is misplaced through false reliance on EPA's template or comparable SWPPP development efforts, or (2) benchmark

monito ring is not a very reliable or accurate tool for measuring SWPPP compliance or water quality impacts.

Even if the only conclusion that can be drawn from EPA's analyses is that its SWPPP template and most permittees' efforts to comply with BAT requirement s cannot accurately be measured or judged by benchmark monitoring, there remains no further need or use for such monitoring. FSWA would argue that benchmark monitoring is not an accurate measuring tool for SWPPP or BAT compliance for the many

reasons that have been raised in these comments since 1995 (e.g., variability, background sources, wrong benchmark values, etc.). All benchmark monitoring is doing is forcing facilities that otherwise are meeting BAT requirements to remain in a perpetual "do

- loop" of corrective action. This wrongly creates the perception that such a facility is deficient or out of permit compliance, when in fact there is no evidence that the industrial stormwater discharges from the facility are having any negative impact on the

environ ment in any way.2015 EPA MSGP Response to Comments June 4, 2015

322 In 1995, benchmark monitoring served a dual purpose of assessing SWPPPs/compliance with BAT and it also served as EPA's backstop for any criticism that it lacked specific WQBELs. Almost 20 years later, EPA continues to rely on benchmark monitoring, but principally for assessing SWPPP/BAT compliance. EPA's draft MSGP builds upon the 2008 MSGP with comprehensive requirements for new and existing dischargers dedicated to and reasonably constructed for assessing and addressing WQBEL complianc e. Hence, benchmarks do not serve that same dual purpose that they did in 1995.

In sum, benchmark monitoring should be eliminated from the MSGP industrial stormwater permit because benchmarks: (1) do not provide any benefits for assessing SWPPP/BAT compliance; (2) arguably provide random or imprecise data that wrongfully implies that facilities are not meeting BAT; (3) were denigrated by the NRC report as not helpful; and (4) are not necessary for assessing compliance with WQBELs. FSWA would welcome a meeting with EPA staff to discuss these conclusions and alternative more efficient compliance assurance methods.

Response See response to comment essay. Additionally, EPA clarifies that the current benchmark monitoring approach is not intended to burden pe rmittees with a never

- ending "do

- loop" of monitoring. First, the permit does not necessarily require a corrective action to be taken in response to a four quarterly average benchmark exceedance. Instead, it requires permittees to review their SWPPP “to det ermine if modifications are necessary to meet the effluent limits in the permit.” If a permittee with a four quarterly average benchmark exceedance determines that the effluent limits are being met, no corrective action is needed. For many permittees, after the first year of permit coverage they can qualify for one of the exceptions to reduce or discontinue monitoring (e.g., because exceedances are due to pollutants in the natural background; because no further pollutant reductions are technologically avail able and/or economically practicable and achievable).

Regarding the comment that benchmark monitoring is not a very reliable or accurate tool for measuring SWPPP compliance or water quality impacts because 100 percent of facilities EPA surveyed in EPA’s analysis of benchmark monitoring data submitted under the 2008 MSGP violated benchmarks, EPA clarifies that EPA purposefully surveyed facilities with benchmark exceedances because the Agency was interested in examining corrective action responses to excee dances. Therefore, the commenter’s conclusions based on this assumption are misplaced.

EPA also points out that benchmark monitoring is part of a larger scheme to include water quality -based effluent limits in the permit that achieve water quality standards, and therefore they do serve a similar purpose as intended in the 1995 MSGP.

Comment ID 0093.001.022 Issue Category: 6.2.1

Author Name: Amanda Aspatore Benchmark Monitoring

Organization: National Mining Association (NMA)

IV. Part 6 - Monitoring

Part 6.2.1: Applying benchmarks to (and even conducting monitoring on) discharges to ephemeral waters is particularly problematic, where the base flow is 100% stormwater. NMA's experience has been that stormwater runoff quality from disturbed and undisturbed areas in the arid west is influenced as much or more by the type and intensity of the storm event, and the time since the last rain event, than by the type of control measures implemented. The quality of storm water discharge has been seen to vary significantly even where there has been no change in control measures. Application of any numeric value to stormwater is problematic given: (i) the unique conditions that occur during episodic storm events,2015 EPA MSGP Response to Comments June 4, 2015

323 particularly in arid west ephemeral streams (this also supports the proposal that no monitoring should be applied to discharges to ephemeral streams), and (ii) such an approach fails to account for the receiving water assimilation of the pollutant and fails to account for a mixing zone or similar approach (when appropriate).

As commenters in the past have pointed out to EPA, the proposed benchmarks may not account for dilution during storm events. [FN23] As a consequence, developing numeric benchmark levels for stormwater discharges is difficult given the unique conditions that occur during episodic storm events, particularly in arid west ephemeral streams. As EPA acknowledges, there have been limited analyses of benchmark monitoring to date. [FN24] In particular, there is no clear connection between the benchmarks in the MSGP and control measure effectiveness at mining sites (i.e., there has been no analysis done concluding that a certain degree of pollutant reduction is generally achievable). Exceeding a numeric

benchmark will force facilities to review control measures and install any new measures that are technically and economically practicable, even when pollutant load reduction from doing so is minimal. Such measures would be required even if there is no evidence that the discharge is causing or contributing to the exceedance of water quality standards in the receiving water. Notably, several western states with hard rock mining (e.g., Nevada, Colorado, Utah) have more sensibly adopted mining stormwater permits

with no benchmarks . Colorado's mining stormwater general permit does not require any analytical monitoring, and Nevada's general permit only requires monitoring of stormwater runoff from active waste rock or overburden stockpiles under certain circumstances (it does not est ablish benchmarks). Utah's version of the MSGP does not include benchmark monitoring of runoff from overburden and waste rock piles at Sector G facilities. EPA's MSGP should follow the approach in these state permits with respect to mining facilities.

Pa rts 6.2.1.2 and 6.2.4.2: Hard rock mines are located in mineralized areas where elevated levels of metals in waters are expected due to natural background conditions. Benchmark levels for naturally occurring metals may be set below levels that would be pre sent in naturally occurring runoff from these mineralized areas. The natural background exemption, which requires effectively zero contribution from the facility, does not address this problem because the exemption is so stringent as to essentially be

mean ingless. Moreover, NMA supports the proposed language allowing facilities to discontinue monitoring for pollutants that occur solely from run

- on sources. EPA should, however, provide additional clarification in the MSGP for when such discontinuances are ap propriate.

[FN23] Proposed 2013 MSGP Fact Sheet at 51.

[FN24] See id. at 52.

Response See monitoring response to comment essay.

Comment ID 0094.001.016 Issue Category: 6.2.1

Author Name: Eric Fry Benchmark Monitoring

Organization: Peabody Energy

13) 6.2.1 Benchmark Monitoring. Applying benchmarks or monitoring ephemeral water discharge is problematic in situations where the base flow is 100% storm water. Stormwater runoff quality from disturbed and nndisturbed areas in the arid west is influenced as much or more by the type and intensity of the storm event, and the time since the last rain event, than by the type of control measures implemented. The quality of storm water discharge has been seen to vary significantly even where there2015 EPA MSGP Response to Comments June 4, 2015

324 has been no change in control measures. And application of numeric value to storm water is also problematic.

Response See monitoring response to comment essay.

Comment ID 0096.001.001 Issue Category: 6.2.1

Author Name: David Mullen Benchmark Monitoring

Organization: Pease International Development Authority (PDA)

These comments relate to the requirements for the continued monitoring of certain benchmark values (in particular, those relating to metals) and the proposed addition of specific benchmark values established for metals discharged to saline waters.

The existing and proposed benchmark values for metals are based on available acute ambient water quality criteria. The following issues pertinent to benchmark monitoring and these comments were

di scussed by EPA in Section X.B.1. of its Proposed 2013 MSGP Fact Sheet (Fact Sheet):

1. EPA is continuing to require benchmark monitoring as an indicator of the performance of stormwater controls implemented at a facility to meet effluent limitations contained in the permit.

2. Commenters have opined that benchmarks may not be valid indicators of water quality concentrations from storm events, in part because the benchmark value may not account for the dilution of the discharge that occurs during a storm event, and the 30

- minute first

- flush samples are not representative of the longer

- term exposures used to derive the water

- quality criteria that form the basis for most benchmarks.

3. In its Fact Sheet EPA cites a report by the National Research Council (NRC) titled, "Urban Stormwater Management in the United States." On page 247 of that report, NRC states, "Impairment of water bodies can occur for a variety of physical, chemical, and biological reasons, often with a complex combination of

causes. The ambien t water quality of a receiving waterbody, which may result in a determination of impairment, is itself a function of the total mass loading of pollutant, dilution with stream discharge or standing waterbody volume; the capacity of the aquatic ecosystem to assimilate, transform, or disperse the pollutant; and transport out of the waterbody."

4. The proposed benchmark values for metals are based on the National Recommended Water Quality Criteria, Acute Aquatic Life Saltwater (CMC Report). Footnote D in the CMC Report states that the criteria for metals are expressed in terms of the dissolved metal in the water column, and references Office of Water Policy and Technical Guidance on Interpretation and Implementation of Aquatic Life Metals Criteria (Metals Guida nce) (49 pp, 3MB) October 1, 1993, by Martha G. Prothro, Acting Assistant Administrator for Water. Additionally, Note 5 of the CMC Report

states that the metals criteria that are not hardness

- dependent are calculated by multiplying the total

recoverable cr iteria by the appropriate conversion factors provided in Appendix A to the CMC Report.

5. The Metals Guidance recommended the use of dissolved

- metals concentrations to set and measure compliance with water

- quality standards because the dissolved concentra tions more closely approximate

the bioavailable fraction of metal in the water column than does the total recoverable metal. EPA acknowledged that the ambient water

- quality criteria are neither designed nor intended to protect sediments nor prevent effects due to food webs containing sediment

- dwelling organisms. The Metals Guidance strongly encouraged the application of the Water

- Effect Ratio across a waterbody for site

specific criteria development.2015 EPA MSGP Response to Comments June 4, 2015

325 In consideration of the above statements, we have the fo llowing comments regarding the 2013 DRAFT

MSGP :

1. PDA agrees that inspection and/or monitoring is needed to assess the effectiveness of stormwater controls for industrial discharges and to reduce and/or eliminate adverse impacts to receiving waters. However, PDA concurs with prior commenters with regard to the ineffectiveness of benchmark monitoring as a reliable indicator of the performance of stormwater controls, and, thus, believe that where effluent limits are not provided in or required by the 20 13 DRAFT MSGP, general indicator parameters such as total suspended solids (TSS), biological oxygen demand (BOD), and/or chemical oxygen demand (COD) would provide sufficient information to operators for screening and benchmarking purposes.

Response

See m onitoring response to comment essay.

Comment ID 0096.001.002 Issue Category: 6.2.1

Author Name: David Mullen Benchmark Monitoring

Organization: Pease International Development Authority (PDA)

2. The use of Acute Water Quality Criteria for discharges to marine waters are not appropriate as benchmark values for the following reasons:

EPA states that "benchmark monitoring requirements are not effluent limits, but instead are designed to provide an indication to the operator of the performance of their control measures," and that "exceedance is not considered a violation of the permit." However, by establishing a numeric benchmark for individual contaminants using water

- quality criteria, public perception is that stormwater discharges with

conc entrations above those benchmarks have a known adverse impact on the quality of the receiving

water.

a. Storm events differ greatly in character and intensity, contributing to the highly variable nature of stormwater sample contaminant concentrations. The timing of the last storm and the nature of the preceding industrial activities also contribute to the potential contaminant load, so the collection of sporadic (i.e., quarterly) outfall grab samples does not adequately represent the overall quality of wat er discharged from the facility. Moreover, increasing the sampling frequency would not likely improve the overall accuracy due to the variability inherent in stormwater sampling both within and between storm events. Comparing the average concentrations for individual metals against a contaminant

- specific numerical benchmark appears to give the analytical concentrations a "legitimacy" and "representativeness" that does not really exist.

b. The values for use as benchmarks identified in the CMC Report were d eveloped based on dissolved metals concentrations because of measured toxicity impacts in the receiving water associated with those metals in their dissolved phase. However, under the 2013 DRAFT MSGP the stormwater sample concentrations being compared to t hese benchmarks are based on total recoverable metals concentrations. As a result of this "apples to oranges" comparison, the general public often, if not usually, perceives the stormwater discharge to be more threatening and harmful to surface water biota than it really is. This perception is exacerbated by the fact that, in most circumstances, a total recoverable metals analysis will yield results with higher concentrations than a dissolved metals analysis

- frequently much higher. In combination, this "conservative" approach to benchmarking leads not only to unnecessary expenditure chasing goals perceived by the public as limits, but also misleads the public as to the extent of the real threat to the surface water body.2015 EPA MSGP Response to Comments June 4, 2015

326 c. The benchmarks proposed by EPA i n the 2013 DRAFT MSGP do not appear to consider the

conversion factors between total and dissolved metals as are referenced in the footnotes to the CMC Report. The reason and basis for deviating from the conversion factors in the CMC Report is not clear.

d. The proposed benchmark values do not account or make allowance for the Water

- Effect Ratio. A number of physical and chemical characteristics of site water and metals can affect the toxicity of a metal to aquatic organisms in particular surface waters (e .g., tidal influences, dilution, dissolved organic carbon, type of aquatic species, etc .). The proposed benchmarks in the 2013 DRAFT MSGP are based on the protection of aquatic life in the receiving water but are applied to stormwater without consideration of the receiving water characteristics. This will likely result in overly conservative benchmark values. A permittee may be required to pursue additional control and/or treatment measures at substantial cost based on a benchmark exceedance, even if none are warranted based on the actual risk of harm.

Response See monitoring response to comment essay.

Comment ID 0096.001.003 Issue Category: 6.2.1

Author Name: David Mullen Benchmark Monitoring

Organization: Pease International Development Authority (PDA)

e. A preliminary cost estimate received for a site

- specific Water

- Effects Ratio study exceeded $50,000. Completion of an individual Water

- Effects Ratio Study would be an undue burden for individual permittees; WER would be better established at the State level for particular water

- body types and/or classifications. In addition, if EPA is going to establish limits for which compliance can only be accurately determined following a WER, EPA should make funding available to the states to undertake

es tablishment of representative WERs or WERs for a state's representative water bodies or classifications.

Response See monitoring response to comment essay.

Comment ID 0096.001.004 Issue Category: 6.2.1

Author Name: David Mullen Benchmark Monitoring

Organization: Pease International Development Authority (PDA)

In consideration of the above comments, PDA requests the 2013 DRAFT MSGP be modified as follows:

1. Continue to require quarterly monitoring for industrial sectors currently required to complete benchmark monitoring in accordance with the MSGP. However, for these facilities, the required benchmark parameters should be limited to TSS, BOD, and/or COD (i.e., eliminate the proposed benchmark values for metals).

2. If the 2013 MSGP must include benchmark values for metals, PDA suggests the following changes relative to the proposed benchmark values for metals:

a. Revise the proposed benchmark values to consider the potential impact of the discharge to the receiving

water with the considerati on of a Water

- Effects Ratio (WER) and/or a Dilution Factor (DF) similar to that included in the Remediation General Permit. EPA should provide representative values for WER based on water body characteristics or funding for states to do so; and2015 EPA MSGP Response to Comments June 4, 2015

327 b. Require the analysis of dissolved metals and TSS in lieu of total recoverable metals analyses. TSS will provide a direct indication of the sediment load and an indirect assessment of total metals concentrations, while the dissolved metals concentrations will prov ide an indicator of potential toxicity consistent with the findings and conclusions of the CMC Report.

PDA believes that the foregoing modifications to the 2013 DRAFT MSGP are protective of the public and the environment, meet the objective of the Clean Water Act, present a more accurate calculation of potential harms, and avoids increased burdens on the regulated community.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

328 

### Issue Category: Section 6.2.2 - Effluent Limitations Monitoring

Comment ID 0021.001.008 Issue Category: 6.2.2

Author Name: Lee Epstein Effluent Limitations Monitoring

Organization: Chesapeake Bay Foundation

Part 6.2.2

- This section contains a requirement for monitoring with respect to effluent limitations, once per year at each outfall, taking into account the parameters of Table 6

- 1 as well as any sector -specific parameters noted in Part 8. Monitoring one time each year is not likely to produce samples that will provide reliable or statistically useful information. At the least, quarterly monitoring is recommended so that samples can be averaged and compared over time. This is generally feasible since (as no ted previously) unlike municipalities, most industrial facilities will only have a few outfalls.

Response See monitoring response to comment essay.

Comment ID 0029.001.007 Issue Category: 6.2.2

Author Name: Kim Cox Effluent Limitations Monitoring

Organization: City of Portland Environmental Services

2. What should the monitoring frequencies be for medium or high risk sites?

There should be a minimum monitoring frequency for all sites, perhaps twice a year, once in the fall and once in the spring. Low

- risk sites would use those minimum monitoring criteria. Medium

- risk sites could use the current standard of monitoring four times a year and high

- risk sites could use a six or eight times a year monitoring cycle. Risk

- based monitoring could be used as an incentive for sites to implement more pollution control BMPs to lower their monitoring frequency. At some point, moving material s or operations under cover or indoors will likely become more cost effective for the site.

Response See monitoring response to comment essay.

Comment ID 0042.001.007 Issue Category: 6.2.2

Author Name: Joshua Rodriguez Effluent Limitations Monitori ng
Organization: District Department of the Environment

Part 6.2.2 Effluent Limitations Monitoring

DDOE agrees and supports the inclusion of the Airport Deicing Effluent Limitation Guidelines. This requirement will help enforce the new ELGs for airport deicing operations and assist in the elimination of pollutants from airports to surface water bodies.

Response EPA acknowledges the commenter’s support for the MSGP’s inclusion of the Airport Deicing Effluent

Limitation Guidelines.2015 EPA MSGP Response to Comments June 4, 2015

329 Comment ID 0085.001.005 Issue Category: 6.2.2

Author Name: Zachary Griefen et al. Effluent Limitations Monitoring

Organization: Conservation Law Foundation et al.

G. EPA's proposal to ignore the MSGP's flawed effluent limitations and monitoring requirements until 2018 is unacceptable.

EPA's plan to ignore the known inadequacies of the MSGP's monitoring requirements and effluent limitations for another five years is a clear violation of the Clean Water Act. Every NPDES permit must include both effluent limitations and adequate monitoring requirements to ensure that those limitations are met. See 33 U.S.C. §§ 1311, 1342. This permit does neither. EPA must remedy the situation in the coming months before it finalizes this permit, not in another five years.

EPA evidently lacks any sense of urgency. Instead of setting numeric effluent limitations and reforming the MSGP's monitoring requirements to reduce variability and increase accuracy, EPA is re -promulgating a permit containing monitoring requirements that EPA admits are broadly not complied with. Further, the permit contains effluent limitations that, by all accounts (including EPA's [FN44]), do not adequately reduce the discharge of pollution in industrial stormwater. To make it worse, EPA makes plain that it has no intention of moving q uickly to improve this situation. EPA has not set forth a plan for developing numeric effluent limits. As noted above, EPA has not conducted the kind of national integrated analysis of stormwater samples that it is already set up to complete. And in the Fa ct Sheet's discussion of a risk

based monitoring program, the agency states that "EPA plans to evaluate this concept and to consider information submitted in response to this request as it considers its proposal for benchmark monitoring requirements for the 2018 permit."[FN45]

Four years ago, the National Research Council explained to EPA precisely what it must do to better monitor individual industries, control variability, and determine effluent limits for industrial categories. [FN46] Four years later, EPA has done nothing with these recommendations. Instead, EPA has submitted a perfunctory and shallow benchmark and SWPPP analysis as the factual basis for this rulemaking. Even worse, the problems reported to EPA by the National Research Council in 2009 were not truly news even then. EPA had claimed in all previous iterations of the permit, stretching back to the first general permits issued in 1992, that it lacked the data to set numeric effluent limits and needed to address the variability in discharges between different kinds of sites. [FN47]

What exactly has EPA been doing to improve monitoring, reduce variability, address the gaps in its knowledge and develop numeric effluent limits in the last four years, let alone for the past 21 years?

The situ ation has reached an inflection point. Not only are numeric effluent limitations feasible, but like BMPs, their use has become "reasonably necessary to carry out the purposes of the Act" in light of the 21 year history of failed narrative control measures. EPA must immediately make use of the information it already has at hand to establish numeric effluent limits in this MSGP.

Further, EPA knows what it must do to improve data gathering. With each permit cycle, EPA insists that it needs better monitoring data before it can set numeric effluent limits, yet time and again EPA does not improve monitoring requirements in the MSGP, pushing back its compliance with the Act's requirement to develop numeric effluent limits yet another permit cycle. At this rate, E PA will continue to claim that it is "infeasible" to set numeric effluent limits forever. For the reasons explained above, numeric limitations are feasible now and, therefore, required under the Act. EPA must complete the process of establishing2015 EPA MSGP Response to Comments June 4, 2015

330 improved m onitoring requirements and numeric effluent limits in this iteration of the MSGP, not in another five years.

[FN44] See, e.g., Fact Sheet at 13 ("EPA is concerned that current 2008 and proposed 2013 Multi -Sector General Permit requirements may not adequa tely prevent toxic pollutants in stormwater discharges from causing sediment contamination and recontamination of Superfund cleanup sites and/or presenting an imminent and substantial endangerment to human health or welfare or the environment.").

[FN45] Fact Sheet at 52.

[FN46] USM at 257.

[FN47] See EPA, Final NPDES General Permits for Storm Water Discharges Associated With Industrial Activity, 57 Fed. Reg. 41236 (Sept. 9, 1992) ("the Agency currently does not have sufficient data to develop appropri ate numeric effluent limitations for all of the varied sources of storm water discharges associated with industrial activity covered by these permits. The Agency also notes that facilities covered by today's permits have varied potential for having many di fferent pollutants in their storm water discharges.").

Response See monitoring response to comment essay.

Comment ID 0087.001.024 Issue Category: 6.2.2

Author Name: Kathleen Martin Effluent Limitations Monitoring

Organization: Alcoa Inc.

Section 6.2.2 Effluent Limitations Monitoring

• As noted in these comments, Alcoa does not support the use of numeric effluent limits for stormwater.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

331 

### Issue Category: Section 6.2.3 - State or Tribe Provisions Monitoring and Reporting

Comment ID 0029.001.008 Issue Category: 6.2.3

Author Name: Kim Cox State or Tribe Provisions Monitoring and Reporting Organization: City of Portland Environmental Services

3. What should allowable discharge concentrations be?

For equity reasons, discharge concentrations and benchmarks should be the same for all sites regardless of their risk. EPA, the tribes or the states always have the alternative to make waterway specif ic permits to address waterway conditions. In Oregon, we have industrial permits specific to the Columbia Slough, a TMDL listed waterbody.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

332 

### Issue Category: Section 6.2.4 - Discharges to Impaired Receiving Waters Monitoring and Reporting

Comment ID 0021.001.009 Issue Category: 6.2.4

Author Name: Lee Epstein Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Chesapeake Bay Foundation

Part 6.2.4.1

- We are confused as to the direction contained in this section, which states that if the discharge from the industrial facility is to impaired waters that have a TMDL for a particular set of pollutants, the facility does not have to monitor for those pollutants unless EPA instructs that "you are subject to such a requirement consistent with the assumptions of the applicable TMDL and/or WLA."

This is counter

- intuitive and illogical. We believe the direction should be precisely the opposite, wit h the assumption being that if an industrial facility is discharging to TMDL

- delimited waterway, the operator should presume that it must monitor for the very pollutants for which there is a WLA or that are directly addressed in the TMDL, unless EPA infor ms it that such is not necessary, with some rational explanation therefor. We strongly recommend changing the language in this section to reflect such logic.

Response See monitoring response to comment essay.

Comment ID 0037.001.006 Issue Category: 6.2 .4

Author Name: Michael McIntyre Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Idaho Department of Environmental Quality

Page 38 6.2.4.1 Permittees Required to Monitor Discharges to Impaired Waters. This section of the permit states that "No monitoring will be required when a waterbody's biological communities are impaired but no pollutants, including indicator or surrogate pollutants, is specified as causing the impairment..." An extensive number of Idaho's impaired water bodies are 303(d)

- listed as "cause unknown", but usually there are pollutants which are suspected to be the cause of the impairment. DEQ believes dischargers should be required to monitor for the pollutants which are suspected to be the cause of the impairment as identified in the Integrated Report (e.g., metals, nutrients, pesticides). If a water body is 303(d)

- listed as "combined biota", DEQ believes it is appropriate for the discharger to monitor for parameters common to stormwater which may be causing the existing impairment.

Response See monitoring response to comment essay.

Comment ID 0041.001.007 Issue Category: 6.2.4

Author Name: Jason Ulseth & Jessica Sterling Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Chattahoochee Riverkeeper

Part 6.2.4

- Revisions to section 6.2.4 appear to weaken requirements for facilities discharging to impaired waterways. We question EPA's ability to provide notice to facilities that discharge into impaired

streams with established TMDLs and WLAs of their individual monitoring requirements and2015 EPA MSGP Response to Comments June 4, 2015

333 specifications. We are also concerned about how this will effect Georgia's Permit when it is revised in

2017.

Response See monitoring response to comment essay.

Comment ID 0064.001.008 Issue Category: 6.2.4

Author Name: Katie Kistler Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: AK Steel Corporation

Section 6.2.4

- Discharges to Impaired Waters Monitoring

This section of the draft permit requires annual monitoring for all pollutants for which a water body is impaired if an approved TMDL or WLA has not been developed. If a TMDL has been developed no monitoring for the pollutant(s) in question is required. AK Steel suggests that if a facility does not use or otherwise process the pollutant for which the water body is impaired, that monitoring for the pollutant is not required. For example, if a water body is impaired for PCBs and the facility does not use or p rocess PCBs, then monitoring for PCBs is not required.

Response EPA disagrees with this suggestion because industrial facilities may discharge pollutants in stormwater associated with the impairment pollutant event if the facility does not use or proces s the PCB. For example, the pollutant could be a legacy pollutant in the soil, or the pollutant could be deposited from the air and then discharged from the site. Therefore, EPA declines to make the change. EPA also clarifies that if the pollutant is not detected and is not expected to be present in the discharge, or is detected but it has been determined that its presence is due to pollutants in the natural background, annual monitoring may

be discontinued.

Comment ID 0068.001.006 Issue Category: 6.2.4

Author Name: Marilyn Guthrie Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Port of Seattle, Washington

Section 6.2.4.1 states that "If you discharge to an impaired water, you must monitor all pollutants for which the waterbody is impaired and for which a standard analytical method exists (emphasis added)." This broad requirement is then contradicted in Sect ion 6.2.4.2 to indicate that this only applies to discharges to impaired waters without an applicable EPA

- approved or established TMDL wasteload allocation (WLA); and discharges to impaired waters with an EPA

- approved or established TMDL WLA are not required to be monitored unless directed by EPA. If one samples for all constituents, how would it be decided that, if the constituent was present, it would create impact and therefore corrective actions need to be taken. In some cases, it would seem better to use turbidity or TSS for a surrogate instead.

Section 6.2.4.2 defines natural background pollutants to "include those that occur naturally as a result of native soils, and vegetation, wildlife, or ground water" (p. 39). It would seem reasonable to include constituents present in rainwater as natural background pollutants, as they do not reflect contamination by the discharger, legacy sources or run

- on by neighboring properties. The National Atmospheric Deposition Program (http://nadp.sws.uiuc.edu/) clearly shows measurable rainwater concentrations of numerous chemical constituents including mercury, nutrients, ammonia, and base cations. EPA and Environment Canada operate the Integrated Atmospheric Deposition Network (IADN) which monitors wet deposition of PCBs, organochlorine pesticides, PAHs and trace metals2015 EPA MSGP Response to Comments June 4, 2015

334 (http://www.epa.gov/glindicators/air/airb.html). Numerous other national and regional organizations also collect high quality data for constituents of interest to the MSGP program. We urge that rainfall concentrations should be included as natural background pollutants, and should be used where site

specific high quality data are available.

Response See monitoring response to comment essay. EPA clarifies that the detection of an impairment pollutant in Part 6.2.4.1 does not trigger the corrective action process per se (unless one of the Part 4 conditions is triggered).

Comment ID 0085.001.007 Issue Category: 6.2.4

Author Name: Zachary Griefen et al. Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Conservation Law Foundation et al.

C. The Proposed MSGP Fails to Include Sufficient Monitoring to Assure Compliance with Water Quality

Standards.

Section 6.2.4.2 of the proposed MSGP sets out the monitoring requirements for discharges to waters listed as impaired pursuant to Section 303(d) of the Act. EPA proposes to require a single sample annually for the impairing pollutant, unless the discharger demonstrates the pollutant is "natural background," or "not related to activities or materials at your facility." EPA provides no information as how a single sample at each outfall, with substantial exceptions, is of "frequency sufficient to be
representa tive of the monitored activity." For impaired waters with TMDLs, EPA requires no sampling, unless EPA itself determines that such sampling is required by the TMDL. This extremely limited sampling is not sufficient to assure that a facility is not causing or contributing to water quality exceedances, or to evaluate whether a facility is complying with the WLA assigned to it.

More fundamentally, the proposed MSGP provides no method for using even this very limited data for determining whether a site is in f act causing or contributing to exceedances of WQS, or complying with a WLA. How will the discharger, EPA, or the public use this single end of pipe sample event to evaluate whether a site is contributing to WQS exceedances, potentially many miles away, in a municipal storm sewer system conveying dozens, or perhaps hundreds, of industrial discharges the ultimate receiving water? How will the discharger, EPA, or the public evaluate the mass of impairing pollutant discharged by a facility, and whether that is consistent with the WLA? Given that the monitoring plan in the proposed MSGP provides no means for utilizing the limited sampling required for determining compliance or non

- compliance with permit limits, the monitoring is inadequate "to assure compliance

w ith permit limitations."

Response See monitoring response to comment essay.

Comment ID 0085.001.009 Issue Category: 6.2.4

Author Name: Zachary Griefen et al. Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Conservation Law Foundation et al.

Specifically, the Commenters note that the following provisions of the proposed MSGP grant an impermissible degree of discretion to EPA:2015 EPA MSGP Response to Comments June 4, 2015

335 1. 6.2.4.1 Permittees Required to Monitor Discharges to Impaired Waters. Permittees should consult the appropriate EPA Regional Office for any available guidance regarding required monitoring parameters under this part. If the Discharge Mapping Tool does not provide the information you need, you may consult the appropriate EPA Regional Office for guidance regarding required monitoring parameters under this part.

2. 6.2.4.2 Impaired Waters Monitoring and Schedule. Discharges to impaired waters with an EPA

approved or established TMDL WLA: For stormwater discharges to waters for which there is an EPA approved or established TMDL waste load allocation, you are not required to monitor for the pollutant for which the TMDL was written unless EPA informs you, upon examination of the applicable TMDL and/or WLA, that you are subject to such a requirement consistent with the assumptions of the applicable TMDL and/or WLA. EPA's notice will include specifications on which pollutant to monitor and the required

monitorin g frequency. Permittees must consult the appropriate EPA Regional Office for guidance regarding required monitoring under this part.

Response EPA is unclear how the use of a tool to identify discharges to impaired waters grants EPA an impermissible degr ee of discretion.

Regarding the comment on Part 6.2.4.2, see the monitoring response to comment essay.

Comment ID 0085.001.043 Issue Category: 6.2.4

Author Name: Zachary Griefen et al. Discharges to Impaired Receiving Waters Monitoring and Reporting Organization: Conservation Law Foundation et al.

15. Set out deadline for completion, opportunity for public input, and hearing process for the Reasonable Potential Analysis and modify the following sections of the proposed MSGP to cure the impermissible degree of discretion to EPA:

a. 6.2.4.1 Permit tees Required to Monitor Discharges to Impaired Waters. Permittees should consult the appropriate EPA Regional Office for any available guidance regarding required monitoring parameters under this part. If the Discharge Mapping Tool does not provide the information you need, you may consult the appropriate EPA Regional Office for guidance regarding required monitoring parameters under this part.

b. 6.2.4.2 Impaired Waters Monitoring and Schedule. Discharges to impaired waters with an EPA

approved or established TMDL WLA: For stormwater discharges to waters for which there is an EPA approved or established TMDL waste load allocation, you are not required to monitor for the pollutant for which the TMDL was written unless EPA informs you, upon examination of the applicable TMDL and/or WLA, that you are subject to such a requirement consistent with the assumptions of the applicable TMDL and/or WLA. EPA's notice will include specifications on which pollutant to monitor and the required monitoring frequency. Perm ittees must consult the appropriate EPA Regional Office for guidance regarding required monitoring under this part.

Response See response to comment 0085.001.009. See also the monitoring response to comment essay2015 EPA MSGP Response to Comments June 4, 2015

336 

### Issue Category: Section 6.2.5 - Moni toring Required by EPA

Comment ID 0074.001.004 Issue Category: 6.2.5

Author Name: Burl Ackerman Monitoring Required by EPA

Organization: J.R. Simplot Company

Part 6.2.5 Additional Monitoring Required by EPA

EPA may notify you of additional discharge monitoring requirements. Any such notice will briefly state the reasons for the monitoring, locations, and parameters to be monitored, frequency and period of monitoring, sample types and reporting requirements.

Simplot requests that EPA modify Part 6.2.5 to allow the permittee to have input on the modified monitoring requirements. See proposed language below.

The permittee shall have 30 days to contact EPA to comment and/or request changes to the monitoring

re quirements prior to the monitoring requirements going into effect.

Response See monitoring response to comment essay.

Comment ID 0085.001.010 Issue Category: 6.2.5

Author Name: Zachary Griefen et al. Monitoring Required by EPA

Organization: Conservation Law Foundation et al.

Specifically, the Commenters note that the following provisions of the proposed MSGP grant an impermissible degree of discretion to EPA:

3. 6.2.5 Additional Monitoring Required by EPA. EPA may notify you of additional discharge monitoring requirements.

Response See monitoring response to comment essay.

Comment ID 0085.001.044 Issue Category: 6.2.5

Author Name: Zachary Griefen et al. Monitoring Required by EPA

Organization: Conservation Law Foundation et al.

15. Set out deadline for completion, opportunity for public input, and hearing process for the Reasonable Potential Analysis and modify the following sections of the proposed MSGP to cure the impermissible degree of discretion to EPA:

c. 6.2.5 Additional Monitoring Required by EPA. EPA may notify you of additional discharge monitoring requirements.

Response See monitoring response to comment essay.2015 EPA MSGP Response to Comments June 4, 2015

337 

### Issue Category: Section 7.0

- Reporting -Recordkeeping- General Comments

Comment ID 0053.001.002 Issue Category: 7.0

Author Name: Emily Coyner Reporting

- Recordkeeping

- General Comments

Organization: National Stone, Sand, & Gravel Association (NSSGA)

Changes to Public Availability of Information is Burdensome to Industry

Under Section 7 of the proposed 2013 MSGP, EPA is proposing to require more public availability of documents. EPA claims the current process wherein citizens request a Stormwater Pollution Prevention Plan (SWPPP) is not adequate, but does not give any instances where this has been shown to be inadequate. For this undemonstrated burden on the public, EPA is now proposing new and burdensome requirements for operators. This requirement not only alters the original function of the Notice of Intent (NOI), but also adds redundant compliance requirements and increases the potential for noncompliance. The NOI is currently a petition with basic information about a facility that normally does not change during the permit term. The information required in Part 7.3 of the proposed 2013 MSGP to be part of the NOI can change many times. This proposal means an operator would need to amend the SWPPP and the NOI for even small changes at the facility. This requirement is unnecessary and burdensome, and should

therefore be eli minated.

Response EPA is convinced that the benefits to stakeholders by having SWPPP information publicly available far outweigh the permittee’s burden, and that the requirement is a reasonable measure to help ensure SWPPPs are meaningfully developed an d implemented. Enhanced transparency and public accountability will help provide all stakeholders with more timely, complete, and accurate information about potential sources of water pollution associated with facilities covered under the MSGP, and may con tribute to increased compliance and improved water quality. Providing the public with easy access to such information also provides a powerful incentive for operators to improve performance and ensure compliance with the permit. EPA also many comments sup porting the public availability of SWPPPs.

Regarding the comment that the requirement to include SWPPP information on the NOI form “alters the original function of the Notice of Intent (NOI)”, EPA disagrees. 40 CFR 122.28(b)(2)(ii) specifies that the

cont ents of the NOI “shall require the submission of information necessary for adequate program implementation.” As elaborated above, EPA is convinced that SWPPP information is critical for adequate MSGP implementation. Additional, the NDPES regulations contem plated that the SWPPP information EPA is asking for is appropriate for industrial stormwater facilities. The regulations for individual NPDES permits for industrial stormwater facilities requires the permit applicant to provide their proposed

stormwater be st management practices for industrial activities (see 40 CFR 122.26(c)(1)(i)(B)).

EPA has not seen evidence that additional SWPPP information required in the MSGP NOI changes many times during a 5

- year permit term. However, regardless of how often the i ndustrial activity associated with stormwater discharges changes throughout the permit term, the requirement to update the SWPPP information in the NOI is not overly burdensome in the final 2015 MSGP. The SWPPP information must only be updated once per year, as specified in Part 5.4.1 of the MSGP (i.e., within 45 days after conducting the final routine facility inspection). The yearly SWPPP update must include any SWPPP modifications, records, and other reporting elements required for the previous year.

Comment ID 0066.001.019 Issue Category: 7.0

Author Name: Timothy Carlstedt Reporting

- Recordkeeping

- General Comments2015 EPA MSGP Response to Comments June 4, 2015

338 Organization: Hunton & Williams, LLP submitted on behalf of the Utility Water Act Group (UWAG)

Part 7.7 Additional Reporting

For planned changes, this section says that in certain situations a discharger must give notice to EPA promptly, and no less than 60 days prior to making any planned physical alternations or additions to the permitted facility. This is inconsistent with th e standard terms and conditions provided in Appendix B, Part B.12.A, which simply require notice "as soon as possible." UWAG requests that EPA revise Part 7.7

consistent with the standard terms and conditions.

Response EPA has amended Part 7.7 of the MSGP to specify that permittees must give notice to EPA “...no fewer

than 30 days prior to making any planned physical alterations or additions...” (emphasis added). EPA has also amended the standard terms and conditions provided in Appendix B, Part B.12.A to be consistent with Part 7.7 of the MSGP. The purpose of this change is to provide EPA with sufficient time to assess potential water quality impacts from the planned change. Because the requirement applies to planned changes, EPA is convinced that 30 days is a more than reasonable amount of time by which EPA must be

contacted.

Comment ID 0085.001.022 Issue Category: 7.0

Author Name: Zachary Griefen et al. Reporting

- Recordkeeping

- General Comments

Organization: Conservation Law Foundation et al.

B. All Monitoring Data, Reports and Plans Should be Online and Publically Accessible

The proposed permit's failure to ensure public availability of monitoring data further curtails public participation and citizen enforcement. All monitoring data, reports and plans required to be filed with EPA pursuant to the permit and/or SWPPP should be posted electronically for the public to access.

Response Monitoring data required to be reported by the final 2015 MSGP will be publicly available through EPA’s

Enfo rcement and Compliance History Online (ECHO) tool.

Comment ID 0085.001.024 Issue Category: 7.0

Author Name: Zachary Griefen et al. Reporting

- Recordkeeping

- General Comments

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's monitoring data, reports and plans to be online and readily available to EPA and the public relates to several sections of the proposed MSGP, as follows:

•7.4 Reporting Monitoring Data to EPA.

o Commenters note that under the 2008 MSGP, monitoring data was not being processed, compiled, and

stored "in

- house" at EPA, but rather was processed, compiled, and stored by a third party private contractor that then sold the monitoring data back to EPA upon request. Commenters note that this practice should cease, as it is both inefficient and a waste of public funds. EPA should itself maintain all records and monitoring data under the MSGP.2015 EPA MSGP Response to Comments June 4, 2015

339 Response For the 2015 MSGP, EPA will be using different tools for the electronic submission of data, the NPDES eReporting Tool (NeT) (for NOIs, Annual Reports, and NOTs) and NetDMR (for DMRs). Both of these tools are currently in production and support NPDES permittees under other NPDES permits. All data submitted through these tools will be stored in a centralized database that EPA maintains, EPA’s Integrated Compliance Information System (ICIS), and will be immediately available to the Agency (i.e., data retrieval will not necessitate contractor support). EPA also notes that the 2015 MSGP requires that all NOIs, Annual Reports, DMRs, and NOTs be submitted electronically, except in rare circumstances where the EPA Regional Offices approves the use of a paper form, and therefore, EPA’s expectation is

that almost all data wi ll be available within ICIS.

Comment ID 0085.001.026 Issue Category: 7.0

Author Name: Zachary Griefen et al. Reporting

- Recordkeeping

- General Comments

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's monitoring data, reports and plans to be online and readily available to EPA and the public relates to several sections of the proposed MSGP, as follows:

•7.6 Exceedance Report for Numeric Effluent Lim its.

o Commenters note that exceedance reports should be electronically filed and publically available online.

•7.7 Additional Reporting.

o Commenters note that all of the items required to be reported under § 7.7 should be electronically filed and p ublically available online.

Response The MSGP covers a broad category of dischargers, and has many different requirements and exceptions to the information that must be reported. While NeT

- MSGP and NetDMR accommodate most types of information required to be reported under the MSGP, EPA has decided, due to resource and technological limitations, and due to the expected infrequency of such information, to require the information required to be reported in Part 7.7 to be reported directly to the EPA Region al Office instead of through these
systems.

Regarding the comment on numeric effluent limit exceedance reports, EPA notes that all numeric effluent limit monitoring must be electronically reported through NetDMR (unless the EPA Regional Office

approves a paper form), and will be available to the public through ECHO.

Comment ID 0085.001.057 Issue Category: 7.0

Author Name: Zachary Griefen et al. Reporting

- Recordkeeping

- General Comments

Organization: Conservation Law Foundation et al.

27. Require that each facility's exceedance reports should be publically available online;

28. Require that that all of the items required to be reported under § 7.7 be electronically filed and publically available online;2015 EPA MSGP Response to Comments June 4, 2015

340 Response See response to comment 0085.001.026.

Comment ID 0094.001.017 Issue Category: 7.0

Author Name: Eric Fry Reporting

- Recordkeeping

- General Comments

Organization: Peabody Energy

14) 7 Reporting and Recordkeeping. Proposed new MSGP language to require electronic reporting aligns with EPA's parallel proposed NPDES Electronic Reporting rule. Peabody has submitted concerns about the proposed e

- reporting rule in a separate letter. How ever, to the extent that the comments submitted for that rule expose problems with the proposed new system that would also impact the MSGP, EPA must be prepared to revise the electronic reporting language in the proposed MSGP. Additionally, analysis of

Sec tion 7.3 warrants the same point that was made about Section 5.4 above. In this proposed permit, EPA goes too far with its requirements for public access. It would be reasonable to simply require permittees to provide SWPPP information upon receiving a req uest from the public to provide such information.

Response The NPDES Electronic Reporting Rule is a separate Agency action from the issuance of the 2015 MSGP, and has not yet been finalized. While the MSGP’s electronic reporting requirements were developed to be consistent with the proposed NPDES Electronic Reporting Rule, EPA has the discretion to require electronic reporting absent the finalization of that rule. EPA is convinced that the requirement to report electronically is appropriate due to the ex pansion in Internet availability, greater efficiency in administrative processing, and the need to reduce costs to manage information.

Regarding the comment about the public availability of SWPPP information, see response to comment

0053.001.002.2015 EPA MSGP Response to Comments June 4, 2015

341 

### Issu e Category: Section 7.1

- Electronic Reporting

Comment ID 0029.001.010 Issue Category: 7.1

Author Name: Kim Cox Electronic Reporting

Organization: City of Portland Environmental Services

C. Electronic submittals. Offering waivers for electronic reporting seems reasonable to help firms with technological difficulties. Requiring a waiver for every submittal seems overly burdensome, while a five

year waiver seems to long. We suggest an annual or mid

- point permit waiver to allow technology to catch up with these sites.

Response EPA appreciates the commenter’s suggestions regarding long

- term waivers from electronic reporting. EPA has decided that waivers can only be granted for one

- time use, unless the EPA Regional Office determines it is appropriate to extend the waiver on a case -by- case basis only. See Part 7.1 of the final

2015 MSGP.

Comment ID 0031.001.006 Issue Category: 7.1

Author Name: Anthony Grieggs Electronic Reporting

Organization: Los Alamos National Security (LANS)

5. Section 7.1 Electronic Reporting Requirement & Section 7.4 Reporting Monitoring Data to EPA: Proposed permit language indicates "You must submit all NOIs, NOTs, NOEs, Annual Reports, Discharge Monitoring Reports, and other reporting information as appropriate electronically, unless you have received a waiver from your regional office based on one of the following conditions: •If your headquarters is physically located in a geographic area (i.e., zip code or census tract) that is

identified as under

- served for broadband internet access in the most recent report from the Federal

Communications Commi ssion; or •If you have limitations regarding available computer access or computer capability."

Currently, our facility uses two database systems to assist with 2008 MSGP reporting. One system is used to manage analytical monitoring data to populate the Discharge Monitoring Report, EPA form OMB No.

2040- 0004. The second system manages data required under the Corrective Action process and is used to populate Part D of the Annual Report. As an example, prior to constructing and implemented this system to it took approximately 400 hours to compile the first Annual Report. Time for subsequent reports has been reduced down to less than 80 hours. This system has also facilitated tracking of all corrective actions for the entire permit term. These systems are used due to the need to manage large quantities of data and are used to pre

- populate forms and eliminate hand entering of data, thus reducing errors and ensuring the quality of submitted documents.

Using the existing eNOI system to manage and report data f or a large complex facility could potentially be problematic. Specifically, due to the need to identify multiple industrial sectors, there were difficulties submitting the 2008 MSGP NOI in December 2008. Due to numerous errors created by the eNOI system

th e NOI had to be significantly revised and resubmitted in January 2010. More recently, this facility tried electronically submitting two discharge monitoring reports (DMR) in the eNOI system. It was very tedious to enter 69 outfalls in order to populate the eNOI DMR. In addition, each DMR is automatically populated with every benchmark constituent from six different sectors, which populates the DMR forms with a significant amount of unnecessary information. Each benchmark analytical result must be hand2015 EPA MSGP Response to Comments June 4, 2015

342 enter ed, with "not applicable" required for each constituent that is not relevant to that particular DMR. Of the two DMRs entered, "not applicable" had to be entered 15 times for the first DMR and 18 times for the second. In addition, each individual impaired waters constituent, which in the case of this DMR was 12 individual constituents, had to be hand entered. Each hand entered item is an opportunity for error, since

there is no real

- time quality assurance associated with the DMR submittal process as it curre ntly exists. This facility discharges to six different assessment units for impaired waters monitoring. Once that function of the eNOI DMR electronic submittal process is fixed, all constituents from these six assessment units will also automatically popul ate the DMR, further cluttering the electronic DMR. Using existing facility data systems, hardcopy MDMRs are typically 3 to 4 pages long. The printed version of the electronic submittal is about 7 pages long. There may be numerous reasons why electronic submittal using the eNOI system is not the most advantageous path forward.

Recommendation: Allow complex facilities with two or more sectors the opportunity to either upload pdf, Word, or data files or continue to file hard copy documents for the Annual Report and DMR, at a minimum. This would allow complex facilities that have invested money in software systems to continue to use these systems for their economic benefit while ensuring quality and meeting regulatory requirements.

6. Section 7.1 Electroni c Reporting Requirement & Section 7.4 Reporting Monitoring Data to EPA: The proposed 2013 MSGP specifies that the eNOI system be used for all submittals to EPA. However, under the NPDES Electronic Reporting Rule; Proposed Rule (78 FR, 46007 & 46016), Disc harge Monitoring Reports, Notices of Intent to discharge in compliance with a general permit, or other general permit waivers, certifications, and notices of termination of coverage, and program reports) are to be submitted electronically by NPDES -permitte d facilities to EPA through the National Environmental Information Exchange Network or to the authorized state, tribe, or territory NPDES program. This proposed rule also states, "EPA is not proposing that NPDES

- regulated facilities must use an EPA

develop ed electronic reporting tool. Rather, EPA is providing the flexibility for facilities to have a range of options including an EPA electronic reporting tool, a tool developed by a state authorized to implement the NPDES program, or potentially tools developed by third

- party venders, if such tools meet the requirements of this proposed rule." The proposed Electronic Reporting Rule creates a contradiction with the proposed 2013 MSGP requirement. Please clarify.

Response For the 2015 MSGP, EPA will be taking advantage different systems for electronic data submission, the NPDES eReporting Tool (NeT) (for NOIs, Annual Reports, and NOTs) and NetDMR (for DMRs). NeT has been extensively tested and currently supports NPDES permittees under the EPA Region 6 Offshore Oil and Gas general permit. NetDMR is in widespread use and there is extensive guidance and training available. Through the use of NeT and NetDMR, EPA anticipates that many of the issues users experienced with the previous stormwater eNOI system for the MSGP will be addressed, including issues relating to entering multiple industrial sectors. Much of the information required to be reported, including the number of outfalls and their receiving streams, is required to be reported only once throughout the permit term (i.e., on the NOI), and therefore the burden of entering such information for operators of complex facilities will be limited. Once the information is populated on the NOI, the same information will be prepopulated on the user’s NetDMR forms and users will only be responsible for entering monitoring data for required monitoring parameters. Additionally, operator name, facility name and location, and other information will be prepopulated on the facility Annual Report form. The Annual Report form is extremely streamlined and EPA expects that users will find it very easy to fill out and submit (i.e., users can simply enter text for the four questions and submit the form to EPA). EPA anticipates that the electronic reporting system for the next permit issuance will have information reported during this permit cycle prepopulated, and provided there are no changes, permittees will not have to reenter most of it in the next permit issuance.2015 EPA MSGP Response to Comments June 4, 2015

343 Regarding the comment that the MSGP’s electronic reporting requirements are inconsistent with the proposed Electronic Reporting Rule, EPA disagrees. While the Electronic Reporting Rule proposed that permitting authorities would have the flexibility of offering the use of more than one electronic reporting tool, EPA as the permitting authority for the 2015 MSGP has the discretion to require the specific tool(s) that must be used for reporting information to the Agency. EPA has spent considerable resources in developing tools (i.e., NeT and NetDMR) that will ensure data is received by the Agency in a manner consistent with the proposed rulemaking, and for this reason, is requiring data to be submitted using them.

Comment ID 0033.001.006 Issue Category: 7.1

Author Name: Eileen Sottil e Electronic Reporting

Organization: LKQ Corporation

And Electronic submission for the NOI, Notice of Termination (NOT), annual report, and monitoring. We agree with EPA that the economic savings laid out in this reporting method is justified and feasible with present electronic data technology.

Response EPA thanks the commenter for the support of its MSGP’s electronic reporting requirements.

Comment ID 0035.001.002 Issue Category: 7.1

Author Name: Wendy Terlizzi Electronic Reporting

Organization: Arizona Department of Transportation (AZDOT)

2) ADOT agrees that electronic reporting is an environmentally conscience practice and a worthwhile endeavor. However, prior to finalizing the rule, ADOT urges the Environmental Protection Agency (EPA) to completely test the system to ensure that it is able to handle the type and quantity of information that is going to be submitted. In addition, we hope that during development and deployment, EPA would keep the system simple as to not increase the effort to perform data entry or complicate reporting. ADOT understands that information submitted under this rule will be made available to the public and under Section J, "Critical Infrastructure Security Information", it addresses confidential information as it pertains to "critical infrastructure". It is uncle ar if this would apply to anyone other than the Department of Defense (DOD). As a Department of Transportation there are items in permit related documents that should not be made readily available to the general public. Therefore, public release of the data should be limited in scope.

Response EPA has invested considerable resources and time in the development and testing of the electronic reporting tool for the MSGP, the NPDES eReporting Tool (NeT). Regarding the comment that the system should be simple and uncomplicated, see response to commen t 0031.001.006

Regarding the comment about making confidential information publicly available, the final permit specifies that confidential business information (CBI) or restricted information does not need to be

included in the SWPPP that is submitted to EPA and made available to the public (however the SWPPP must identify the portion of the SWPPP that is being withheld form public access). The permit defines

restricted information as “ information that is privileged or that is otherwise protected from dis closure pursuant to applicable statutes, Executive Orders, or regulations. Such information includes, but is not limited to: classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information. ” Therefore, the commenter’s concern about making critical infrastructure information available to the public is addressed.2015 EPA MSGP Response to Comments June 4, 2015

344 Comment ID 0040.001.002 Issue Category: 7.1

Author Name: Kevin Walgenbach Electronic Reporting

Organization: National Ready Mixed Concrete Association (NRMCA)

2. Electronic Reporting

- NRMCA supports a phased in approach to electronic reporting. If we have learned anything from the Affordable Care Act, it is that new computer based programs, sof tware and hardware will inevitably have "glitches" that will need time to be worked out. There will certainly be other hardware and software costs which are currently unable to be predicted, which necessitates phasing in electronic reporting rather than a sudden switch away from paper submissions.

Response EPA’s approach to electronic reporting requirements has been phased. Starting with the 2008 MSGP, EPA offered the use of an electronic system for reporting information, but did not require it. During the implementation of that permit, EPA gained valuable e xperience and learned lessons about development and management of electronic reporting systems. As explained in response to comment 0035.001.002 and 0031.001.006, EPA has spent considerable time and resources in the development and testing of NeT, a
system that is already in used for Region 6’s Offshore Oil and Gas general permit, and is confident that the system will be functional, will provide efficiencies for the Agency and permittees, and is streamlined to the extent possible (given the intricacies and complexity of the permit). Recognizing that there will always potential issues in using electronic tools, some of them unforeseen, the final 2015 MSGP does provide the option for a waiver for electronic reporting. For these reasons, the electronic reportin g requirements in the MSGP have been appropriately phased.

Comment ID 0042.001.008 Issue Category: 7.1

Author Name: Joshua Rodriguez Electronic Reporting

Organization: District Department of the Environment

Part 7.1 Electronic Reporting Requirement

DDOE agrees and supports the electronic reporting requirement. DDOE believes this is critical to a timely data review and act as an important tool when determining priority inspections.

Response

EPA thanks the commenter for the support of its MSGP’s electronic reporting requirements.

Comment ID 0075.001.002 Issue Category: 7.1

Author Name: Claudio Ternieden Electronic Reporting

Organization: Water Environment Federation (WEF)

2. Electronic Reporting

a. WEF supports the concept of electronic reporting as an approach that can reduce the cost associated with submission of environmental data. Electronic reporting has been successfully implemented at the state level. We do note that electronic reporting can be challenging to accomplish, especially if regulatory reporting requirements change. They can have the unintended consequence of limiting beneficial changes and regulatory flexibility. (Please see WEF's comments to the EPA's NPDES Electronic Reporting2015 EPA MSGP Response to Comments June 4, 2015

345 P roposed Rule

- (Docket ID No. EPA -HQ-OECA-2009-0274) - herein incorporated by reference to these Comments).

Response EPA appreciates the commenter’s support for electronic reporting and caution about its use. As explained in response to comment 0035.00 1.002, 0031.001.006, and 0040.001.002, EPA has spent considerable time and resources in the development and testing of the systems that will be used for MSGP electronic reporting (systems that are already in production for other NPDES permits) and is confident that the systems will be functional, will provide efficiencies for the Agency and the permittee, and are streamlined to the extent possible (given the intricacies and complexity of the permit).

Comment ID 0077.001.003 Issue Category: 7.1

Author Nam e: Pamela Faggert Electronic Reporting

Organization: Dominion

Electronic Reporting

The draft MSGP requires that all NOIs, Notice of Terminations (NOTs), annual reports and Discharge Monitoring Reports (DMRs) be submitted electronically unless the operator has received a waiver from EPA based on select criteria identified in the draft MSGP. On July 30, 2013, the Environmental Protection Agency (EPA) published a proposed NPDES Electronic Reporting Rule which also requires that all NOIs, NOTs and DMRs be submitted electronically. Comments on the proposed NPDES Electronic Reporting Rule are d ue on December 12, 2013. EPA plans to phase in the electronic reporting requirements within one to two years after final promulgation of the rule. It is inappropriate to have two different proposed regulations with the same requirements, such as NPDES elec tronic reporting, when the final rule of either regulation could be in direct conflict to the other. Also, not all the States that are authorized to issue industrial stormwater permits have the capability of electronic data transfer at this time. We request that the existing language for reporting NOIs, NOTs, annual reports and DMRs in the 2008 MSGP be incorporated into the draft MSGP. This allows reporting by either paper forms or electronically when made available.

Response See response to comment 009 4.001.017 and 0040.001.002.

Regarding the comment that not all states authorized to issue industrial stormwater permits have electronic data transfer capability, this comment has to do with the NPDES Electronic Reporting Rule and is outside the scope of the issuance of the MSGP. EPA also notes that it developed the electronic reporting requirements in the MSGP to be consistent with the proposed Electronic Reporting Rule. EPA has ensured that information required on the MSGP’s forms is consistent with the minimum data elements that must be electronically reported for industrial stormwater facilities under the proposed Electronic Reporting Rule. Additionally, the electronic reporting required under the MSGP will occur through the same tools EPA has developed for use under the Electronic Reporting Rule. The temporary waiver from electronic reporting available to facilities in the MSGP is also consistent with the proposed Electronic Reporting Rule, and ensures that facilities with electronic reporting limitations still have the ability to seek authorization and meet the reporting requirements under the MSGP.

Comment ID 0085.001.019 Issue Category: 7.1

Author Name: Zachary Griefen et al. Electronic Reporting

Organization: Conservation Law Foundation et al.2015 EPA MSGP Response to Comments June 4, 2015

346 This comment regarding the need for the applicant's SWPPP to be online and readily available to EPA and the public relates to several sections of the proposed MSGP and the NOI Form, as follows:

•Proposed MSGP § 7.1 Electronic Reporting Requirement.

o Commenters note that the SWPPP URL should be required on the electronically foiled NOI should be required unless the applicant receives a waiver from the electronic reporting requirements pursuant to MSGP § 7.1.

Response EPA disagrees with this comme nt and thus declines to make changes to the final 2015 MSGP. EPA understands that while most facilities may be able to report electronically, it is not expected that all who can report electronically can also maintain a website to host their SWPPP. Additionally, the option to include selected SWPPP information ensures that the most pertinent SWPPP sections will be publicly available. Therefore, EPA is not requiring that those who report electronically to also maintain a URL to

host their SWPPPs.

Commen t ID 0089.001.013 Issue Category: 7.1

Author Name: Kerry Kelly and Chuck White Electronic Reporting

Organization: Waste Management (WM)

Electronic Reporting Requirements

EPA is proposing to require significant quantities of site

- specific data to be submitted electronically, including storm water pollution prevention plans (SWPPPs) or SWPPP summaries. This appears to be consistent with its recent proposal to move toward electronic reporting in the NPDES program, and WM supports the transition to electronic reporting formats.

Response EPA thanks the commenter for the support of its MSGP.2015 EPA MSGP Response to Comments June 4, 2015

347 

### Issue Category: Section 7.3

- Additional SWPPP Information Required in Your NOI

Comment ID 0042.001.009 Issue Category: 7.3

Author Name: Joshua Rodriguez Additional SWPPP Information Required in

Your NOI Organization: District Department of the Environment

Part 7.3 Additional SWPPP Information Required in Your NOI

DDOE agrees and supports the requirement for additional NOI information when not making the SWPPP publicly available, including potential spill and leak areas, pollutants and pollutant constituents, storm water control measures used to comply with nonnumer ic technology

- based effluent limits, and the schedules for both housekeeping and inspections. DDOE believes the inclusion of this information will not be burdensome to the applicant when completing an NOI and will prove useful for state agencies.

Respo nse EPA thanks the commenter for the support of its MSGP.

Comment ID 0054.001.001 Issue Category: 7.3

Author Name: Anonymous Public Comment Additional SWPPP Information Required in

Your NOI Organization: Private Citizen

The reasoning for the requirement to add the information indicated in Permit Section 7.3 to the Notice of Intent (NOI) to increase availability to interested parties in the public domain is too simplistic and does not account for the possible consequences. This, of course, applies for those operators unwilling or unable to post their entire SWPPP online.

• In its discussion of the proposed requirement (Proposed Fact Sheet, page 46 of 76), the EPA does not expand on how, in the 2008 MSGP, requiring an operator to provide a copy of the SWPPP "to the public or the EPA only upon request..." makes it "difficult for the public to get information...." If a regulator, person, or other entity requests a copy of the SWPPP, the operator is required to supply a copy. Therefore, the 2008 MSGP requirement already fulfills the intent to increase availability. If a town department, water treatment facility, or other entity wants a copy for planning, emergency management, or other purpose, they can easily obtain one by making a request to the operator. The operator will be obliged by the existing permit language to supply a co py.

• This requirement changes the concept of the NOI and adds a layer of potentially redundant compliance requirements and the corresponding administrative tracking and effort. The NOI is a petition with basic information about a facility that normally does not change during the permit term. The information required in Part 7.3 to be part of the NOI can change many times during the permit term. This sets up a situation where the regulated operator now has to amend a SWPPP and the NOI for even small chang es at the facility. This seems redundant and a potential compliance pitfall. It will also add to the EPA's administrative burden to review amended NOIs more frequently.

• If required, the operators adding this information to their NOIs will have to gener alize the information above to avoid having to repeatedly amend the NOI during the permit term. The arguments above support this claim. This will limit the value to the public of the information posted on the NOI.

THEREFORE: This requirement should be reevaluated, because 1) the existing MSGP requirement to provide copies is adequate, 2) the requirement adds administrative redundancy and effort for the operator and the EPA (reviewing more NOI amendments), 3) the requirement creates an additional pitfall f or2015 EPA MSGP Response to Comments June 4, 2015

348 operators that now have to amend and certify two documents (SWPPP and NOI), and 4) the information provided will most likely be of limited value to the public.

Response

EPA has received numerous comments requesting that EPA make more of the informa tion provided by industrial facilities covered under the MSGP available to the public. EPA also recognizes that it is more burdensome and time consuming for the public to go through the process of requesting the SWPPP from EPA than it would be by obtaining this information from EPA’s ECHO tool. For these reasons, EPA is maintaining the requirement to make SWPPP information publicly available in the final 2015 MSGP. The value of SWPPP public availability is explained in response to comment 0053.001.002.

Reg arding the comments about the function of the NOI and how changes to the SWPPP are to be reported, see response to comment 0053.001.002. E PA also notes that amendments to the SWPPP and NOI would be original changes, not redundancies.

Comment ID 0055.001 .001 Issue Category: 7.3

Author Name: Anonymous Public Comment Additional SWPPP Information Required in

Your NOI Organization: Private Citizen

Reference: Permit Part 7.3 (by reference from 1.2.1.1. and 5.4.2.)

The following comments consider several of the specific items of information required in the above

referenced permit section:

• Regarding the second bullet referring to pollutants: The requirement to add this information to an operator's NOI will add time and effort to amend NOIs. The pollutants that could be discharged at a site may change over time; perhaps many times during one year at a facility. These changes may not occur in concert with the other changes at a facility. Therefore, the operator will be required to amend the NOI as often as the SWPPP, thereby increasing the administrative burden.

• Regarding the third bullet referring to control measures: The requirement to add this information to an operator's NOI will add time and effort to amend N OI's. The control measures utilized at a site will often change during the permit term, depending on changes of potential pollutants, facility layout, results of monitoring, corrective actions, etc. These changes may not occur in concert with the other cha nges (e.g., new pollutants, polymers used, etc.) possible at a facility. Therefore, the permit holder will be required to

amend the NOI as often as the SWPPP.

• Regarding the third bullet referring to polymers and chemicals: The EPA should eliminate the requirement to "...identify the polymers and/or chemicals used..." These products may change if new chemicals become available, budgets change, new control measures are added, or the supplier changes. This may occur up to twice a year, in some cases. As stated above, this will add to the frequency with

which the NOI is amended.

• Regarding the fourth bullet referring to schedule of maintenance: This requirement to add this information to an operator's NOI will add time and effort to amend the NOI. The informa tion is redundant, since the permit already indicates what the schedule will be for inspections. Operators cannot plan exact dates for general housekeeping and maintenance. Operators will be forced to use only2015 EPA MSGP Response to Comments June 4, 2015

349 generalized descriptions to avoid frequent ame ndments to the NOI. This will limit the value for public information available to the public.

THEREFORE: Taken together, the above

- mentioned requirements significantly increase the administrative burden for both the operator and the EPA reviewers by increasing the frequency of amendments to the NOI. The additional administrative effort required by this Part should be weighed against the proposed increase in availability to the public when the current permit requirement appears adequate.

Response

EPA h as responded to similar comments above in responses to comments 0053.001.002 and

0054.001.001.

Regarding the comment on including the inspection schedule in the SWPPP information that is publicly available, some sectors are subject to a different inspection frequency than required in Part 3.1 of the permit, and some operators choose to inspect more frequently than specified in Part 3.1 of the permit. This information is therefore of use to the Agency and to the public. In addition, EPA does not expect that permittees will include exact dates for good housekeeping and maintenance. Rather, EPA expects that permittees will include the general schedule or frequency (e.g., once per week).

Comment ID 0070.001.016 Issue Category: 7.3

Author Name: Beth Goodnough Additional SWPPP Information Required in

Your NOI Organization: Western Fuels Association Inc.

Part 7.3 is redundant with Part 5, and has the same issues as Part 5.4.1. It should be eliminated.

Part 7.8. The keeping of all the modifications to the SWPPP, plus all the maintenance records and inspection reports for the 5 year term of the SWPPP plan, plus 3 years beyond will be troublesome at constantly changing surface coal mines. Some modify their stormwater outfalls quarterly as a result of mine through, reclamation, SMCRA inspector requests, and changes due to maintenance of the point. The inspection information is already available in the SMCRA permit and annual report, making this requirement r edundant for surface coal mines.

Response EPA declines to make changes to Parts 7.3, 5, and 5.4.1 for the reasons outlined in response to comment

0053.001.002 and 0054.001.001.

Regarding the concern about potential issues with retaining a SWPPP, EPA notes that it is mandatory that SWPPP information be retained during and for a certain duration after MSGP permit coverage ceases. The NPDES regulations at 40 CFR 122.41(j)(2) specify that records must be retained for a period at least 3 years from the date of the sample, measurement, report, or application, and that this period may be extended by the request of the Director at any time. In the MSGP, EPA specifies that records be retained for at least 3 years from the date the permittee’s authorized is terminated (see Appendix B, Part B.10.B). Regarding potential concerns on reporting SWPPP changes, see response to comment 0053.001.002.

The purpose of requiring inspection and other information to be included in the publicly available portion of the SWPPP is so that EPA, and interested stakeholders, can find all information pertinent to industrial stormwater management in one place (in EPA’s ICIS system, or ECHO for the public). EPA and the2015 EPA MSGP Response to Comments June 4, 2015

350 public do not have immediate access to this information if it is only contained in the SMCRA permit. For these reasons, the requirement is not redundant.

Comment ID 0085.001.020 Issue Category: 7.3

Author Name: Zachary Griefen et al. Additional SWPPP Information Required in

Your NOI Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's SWPPP to be online and readily available to EPA and the public relates to several sections of the proposed MSGP and the NOI Form, as follows:

•Proposed MSGP § 7.3 Additional SWPPP Information Required in Your NOI "If you did not provide a SWPPP URL in your NOI per Part 5.4.1, your NOI must include the additional SWPPP information"

o Commenters note that it will both be more efficient and produce better outcomes if a SWPPP is publically available online at the outset. As a minimum acceptable alternative, EPA should require a 60

- day waiting period before coverage under the permit becomes effective for those facilities that fail to provide a SWPPP URL in their NOIs (as in the 2008 MSGP), in order to allow EPA and citizens sufficient time to obtain and examine the facility's SWPPP.

o Commenters further note that the list of additional information required to be included in the NOI

should include a n electronic copy of the facility's engineered site plan, showing at a minimum all the information listed at § 5.2.2 of the proposed MSGP.

Response See response to comment 0085.001.019.

EPA declines to require that the NOI require an electronic copy of the facility’s site plan, showing all the information listed at Part 5.2.2 of the MSGP. As explained in response to comment 0085.001.019, the minimum required SWPPP information ensures that the most pertinent SWPPP information is publicly available, and minimizes unnecessary burdens for permittees who may have difficulties providing an electronic copy of the site map.2015 EPA MSGP Response to Comments June 4, 2015

351 

### Issue Category: Section 7.4

- Reporting Monitoring Data to EPA

Comment ID 0034.001.002 Issue Category: 7.4

Author Name: Steven Black Reporting Monitoring Data to EPA

Organization: U.S. Department of Energy

2. Paragraph 7.4, second paragraph

- Discharge Monitoring Reports are required to be submitted within 30 days after receiving laboratory results for each monitoring period. In arid regions of the country, it is possible that no discharges will occur during a monitoring period. This is allowed for on the MDMR form by checking the box for reporting no discharge for all outfalls for the monitoring period. The permit needs clarification regarding when the MDMR form must be submitted in this case. A reasona ble timeframe would be to submit the MDMR within 30 days of the end of the monitoring period. This same clarification should also be made in the Appendix O table of deliverables.

Response EPA thanks the commenter for the suggestion, and notes that EP A has clarified in the final 2015 MSGP at Part 6.1.7 that “using NetDMR you must report there was “no discharge” for any 3

- month interval that you did not take a sample.” EPA notes that such monitoring reports are required to be submitted in the same timeframe as those monitoring reports for which there were sampled discharges.

Page 41 7.4 Reporting Monitoring Data to EPA. Why is EPA requiring permittees to submit benchmark monitoring data to EPA within 30 days of receipt of laboratory results when EPA is only requiring an average of the four quarterly samples to be in compliance with t he benchmark concentration? It seems the permit requirements could be made less cumbersome by allowing the permittee to submit the laboratory reports along with the annual report.

Response EPA is requiring permittees to submit benchmark monitoring data quarterly to provide EPA, states, and other stakeholders with an opportunity to periodically evaluate discharge levels and to be able to respond in a timely manner if there are water quality concerns. If permittees wait until the annual report to submit

th e data, EPA loses valuable time to ensure that any necessary corrective action measures are taken. The permit also specifies that if fewer than four quarterly samples are collected, but it is a mathematical certainty that the average will be exceeded, the permittee must review its control measures and may any necessary modifications or document a finding that no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet t he technology- based effluent limits or are necessary to meet the water quality based effluent limitations (in which case monitoring is reduced to once per year).

Comment ID 0069.001.005 Issue Category: 7.4

Author Name: Philip McNeely Reporting Monitoring Data to EPA

Organization: City of Phoenix, Office of Environmental Programs Comment ID 0037.001.007 Issue Category: 7.4

Author Name: Michael McIntyre Reporting Monitoring Data to EPA

Organization: Idaho Department of Environmental Quality2015 EPA MSGP Response to Comments June 4, 2015

352 Part 7.4. Section 6.1.5 states that failure to monitor due to adverse weather conditions must be reported electronically per Part 7.4. (In this Part, however, there is no mention of the requirement to document failure to sample.) If benchmark or other routine sampling schedules must be deviated from per Parts 6.1.6 or 6.2.1.2, (irregular weather or no discharge at an outfall from a rain event during the quarter), will a quarterly electronic discharge monitoring report also be required, and if so, will there be a mechanism to report the reason for no sample was other than "adverse weather conditions" as it is defined in 3.2.3 and 6.1.5? Is failure to submit a DMR indicating no sample was collected for the quarter considered a violation of the permit terms?

Response Yes, if benchmark or other routine sampling schedules must be deviated, permittees must still use NetDMR to report there was no discharge by the due date for reporting monitoring reports. For clarity, EPA has added the following to Part 7.4: “...for any of your monitored outfalls that did not have a discharge within the reporting period, using NetDMR you must report there was no discharge for that outfall no later than 30 days after the end of the reporting period.” Failure to submit a DMR indicati ng no sample was collected would be considered a violation of the permit terms.2015 EPA MSGP Response to Comments June 4, 2015

353 

### Issue Category: Section 7.5

- Annual Report

Comment ID 0031.001.007 Issue Category: 7.5

Author Name: Anthony Grieggs Annual Report

Organization: Los Alamos National Security (LANS)

7. Section 7.5 Annual Report Form: As the proposed 2013 MSGP is written, it appears that the Annual Report will have to be submitted/provided in an electronic format twice. Once as part of the required SWPPP update in a URL (see section 5.4.1) and once in accordance with Section 7.5, which indicates "You must submit an Annual Report to EPA electronically, per Part 7.2, by January 30th for each year of permit coverage containing information generated from the past calendar year." Is there a way to combine these requirements to decrease the burden on regulated facilities? Could EPA use the URL to evaluate the Annual Report or

determine if it has been submitted?

8. Section 7.5 Annual Report Form: The proposed 2013 MSGP indicates "You must submit an Annual Report to EPA electronically, per Par t 7.2, by January 30th for each year of permit coverage containing information generated from the past calendar year." Instructions to Appendix I indicate "Operators must submit an Annual Report to EPA electronically, per Part 7.2, no later than 45 days after conducting the fourth (i.e., final quarterly facility inspection for the year required in Part 3.1." Section 7.5 and Appendix I contradict each other. For example, if an inspection is performed early in the 4th quarter, the 45 day period would come wel l before the January 30th deadline. Please clarify.

Recommendation: It is recommended that the language in Section 7.5 be changed to allow the Annual Report to be submitted to EPA 45 days after conducting the final routine facility inspection for the year required in

Part 3.1.

9. Section 7.5 Annual Report Form: The proposed 2013 MSGP indicates the results or a summary of your past year's routine facility inspection documentation must be submitted in your annual Report. Large, complex facilities perfor ming a significant number of inspections per year will have a large amount of information available in the routine inspections. Please clarify what "summary" entails or give specific examples of the type of information to be provided.

Response

While EPA recognizes that certain facilities will have inspection reports available to EPA and other stakeholders in the URL for the SWPPP that is included on the NOI, it is extremely helpful for permittees to make available their pertinent inspection findings in the form of a summary and on the Annual Report where the information will be immediately available to the Agency (in this ICIS database) and to stakeholders (through ECHO). Having the information on the Annual Report will provide efficiencies to the Agency and other stakeholders in identifying potential water quality issues of concern and in assessing permittee compliance. EPA also points out that permittees have the option of only including certain sections of their SWPPP with the NOI (i.e., the inspection report does not have to be included), and as such, for these facilities, EPA would otherwise not be able to access their inspection information (without requesting the SWPPP through a CWA 308 request).2015 EPA MSGP Response to Comments June 4, 2015

354 Regarding the deadline for submitting the Annual Report, EPA has corrected the inconsistency in the permit. The Annual Report is due by January 30 th for each year of permit coverage. EPA has decided to require that all Annual Reports be due on the same day so that the Agency can better assess compliance

wit h the requirement (previously, Annual Reports were due 45 days after the comprehensive site inspection, and because the comprehensive site inspection could be scheduled at any time in the year, it was not possible for EPA to know if the Annual Report was submitted on time).

To provide clarity for the commenter, EPA expects that the Annual Report would include a summary of any issues identified during the inspection (e.g., a spill, BMP failure), the date the issue was identified, and the status of the corrective action. However, while EPA recognizes that Annual Report information will vary substantially across industrial sectors and facility complexity, in general EPA anticipates that larger and more complicated facilities will have more inspection findings to report and a grea ter level of detail to report than smaller and less complicated facilities.

Comment ID 0040.001.009 Issue Category: 7.5

Author Name: Kevin Walgenbach Annual Report

Organization: National Ready Mixed Concrete Association (NRMCA)

9. Annual Reports and Routeine Inspections

- At this time NRMCA withholds commends on this section.

Response No response required.

Comment ID 0069.001.006 Issue Category: 7.5

Author Name: Philip McNeely Annual Report

Organization: City of Phoenix, Office of Environmental Programs

Part 7.5
- Annual Report. At co

- permitted facilities, such as large airports, where one primary operator may coordinate the overall administration of NPDES stormwater compliance and the quarterly/annual inspections, will each co

- permittee be required to electronically submit a copy of the annual report, even if there is a single annual report submitted by a primary operator, which summarizes the quarterly inspections and activities for the entire facility (all co -permittees)?

For co

- permitted facilities, will there be any electronic tools available by which one primary copermitted operator could be electronically notified of other co

- permittees' electronic submittals of annual reports? What turnaround time does EPA estimate between annual report submittal and report posting/availability

on EPA's website?

Response Where there are multiple operators covered under the MSGP at the same air transportation facility, operators may coordinate permit compliance activities, including the submission of the Annual Report (provided that the Annual Report contains required infor mation for the facilities for which they are coordinating information submittals). For example, the airport authority may compile and report on tenants’ activities and its own activities. However, so that EPA is made aware of such coordination, EPA

request s that permittees relying on another operator’s Annual Report submission still submit to EPA an Annual Report, but on that Annual Report indicate the NPDES ID associated with the permitted operators that is submitting Annual Report information on their beh alf.2015 EPA MSGP Response to Comments June 4, 2015

355 EPA reminds the commenter that all individual operators are responsible for implementing their assigned portion of a comprehensive SWPPP, and o perators must ensure that their individual activities do not render another operator’s stormwater controls ineffective. For multiple operators at an airport this means that each individual operator remains responsible for ensuring all requirements of its own MSGP are met regardless of whether the comprehensive SWPPP allocates the actual implementation of any of those responsibilities to another entity. That is, the failure of the entity allocated responsibility in the SWPPP to implement an MSGP requirement on behalf of other operators does not negate the other operators’ ultimate liability.

Comment ID 008 5.001.025 Issue Category: 7.5

Author Name: Zachary Griefen et al. Annual Report

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's monitoring data, reports and plans to be online and readily available to EPA and the public relates to several sections of the proposed MSGP, as follows:

•7.5 Annual Report.

o Commenters note that each facility's annual report should be publically available online.

Response All annual reports required to be reported by the final 2015 MSGP will be available through EPA’s Enforcement and Compliance History Online (ECHO) tool.

Comment ID 0085.001.056 Issue Category: 7.5

Author Name: Zachary Griefen et al. Annual Report

Organization: Conservation Law Foundation et al.

26. Require that each facility's annual report should be publically available online;

Response

See EPA’s response to comment number 0085.001.025.

Comment ID 0087.001.025 Issue Category: 7.5

Author Name: Kathleen Martin Annual Report

Organization: Alcoa Inc.

Section 7.5 Annual Report

•Alcoa does not support the requirement for submission of an annual report, particularly if the requirement to make the SWPPP and associated information available via a URL is retained.

Response See response to comment 0031.001.007.2015 EPA MSGP Response to Comments June 4, 2015

356 

### Issue Category: Section 7.6

- Exceedance Report for Numeric Effluent Limits

Comment ID 0037.001.008 Issue Category: 7.6

Author Name: Michael McIntyre Exceedance Report for Numeric Effluent Limits

Organization: Idaho Department of Environmental Quality

Page 42 7.6 Exceedance Report for Numeric Effluent Limits. DEQ would like copies of exceedance reports to be sent to the appropriate DEQ regional offices.

Response Idaho may require this through conditions that are included as part of their CWA 401 certification on the
permit.2015 EPA MSGP Response to Comments June 4, 2015

357 

### Issue Category: Section 7.7

- Additional Reporting

Comment ID 0037.001.009 Issue Category: 7.7

Author Name: Michael McIntyre Additional Reporting

Organization: Idaho Department of Environmental Quality

Page 42 7.7 Additional Reporting. This sentence is redundant and should be modified: "Where applicable, you must submit the following reports to the appropriate EPA Regional Office listed in Part 7.9.2, as applicable: ".

The first bullet point following this st atement says that notice must be given where planned changes are "significant" in nature. EPA should define what is meant by "significant" and not leave the responsibility on the discharger to determine whether an increase in discharge is significant. As mentioned in a previous comment, DEQ is concerned that increased discharges will result in an increase in the concentration of pollutants and therefore lower water quality in high quality waters in violation of DEQ's antidegradation provisions.

Response EPA has corrected the redundancy in Part 7.7.

EPA declines to define what is meant by “significant” in the context of planned changes, because such a

determination would be based on site

- specific factors. EPA recommends that operators contact their EPA

Re gional Office if they are unsure if a planned change may “significantly change the nature of significantly increase the quantity of pollutants discharged.”2015 EPA MSGP Response to Comments June 4, 2015

358 

### Issue Category: Appendix A

- Definitions and Acronyms

Comment ID 0029.001.018 Issue Category: AppA

Author Name: Kim Cox Definitions and Acronyms

Organization: City of Portland Environmental Services

Appendix A

- EPA should consider revising the "Non

- Stormwater Discharges" definition to reflect the new prohibition on cooling tower waters.

Response

The definition of non

- stormwater discharges in Appendix A of the MSGP is “discharges that do not originate from storm events.” The examples EPA lists in this definition (i.e., discharges of process water, air conditioner condensate, non

- contact co oling water, pavement wash water, external building washdown, irrigation water, or uncontaminated ground water or spring water) are not exclusively “prohibited” non

- stormwater discharges under the MSGP, nor are the examples meant to be comprehensive regard ing all the types of non

- stormwater discharges that could exist. . For these reasons, EPA declines to make the suggested revision.

Comment ID 0063.001.002 Issue Category: AppA

Author Name: Paul Nazaryk Definitions and Acronyms

Organization: BHP Billiton New Mexico Coal

2. The proposal incorporates requirements from the 2012 construction general permit (CGP) into the MSGP. This would result is an unnecessarily confusing regulatory regime with much greater compliance costs but with no greater environmental benefit. The proposed MSGP outlines four separate mining activities and narrowly defines the term "mining operation" to exclude exploration and construction activities. Yet all four of these activities are really part of the "mining operation" and occur simultaneously at a single mine site. EPA should instead adopt a more expansive, sensible, and "real world" definition of "mining operation". One approach would be to use the statutory definition for "surface coal mining operation" found in the federal Surface Mining Reclam ation and Control Act (SMCRA), which includes surface operations associated with an underground coal mine.

Response See mining response to comment essay.

Comment ID 0068.001.005 Issue Category: AppA

Author Name: Marilyn Guthrie Definitions and Acronyms

Organization: Port of Seattle, Washington

4. Discharges to Impaired Waters EPA needs to more clearly define "impaired waters" in Appendix A. Is an impaired water limited to the state's §303(d) list, which is Category 5 in most states, or does it also include: Category 4a (has an approved TMDL in place), Category 4b (has a polluti on control program in place), Category 4c (impaired by a non

- pollutant that cannot be addressed by a TMDL), or Category 2 (waters of concern where there is evidence of a water quality problem, but not enough data to require a TMDL at this time)? It is curr ently unclear which categories of water quality listed segments are defined as "impaired" in the draft MSGP.2015 EPA MSGP Response to Comments June 4, 2015

359 Response EPA has revised the definition of impaired waters as follows: for the purposes of this permit, waters identified by a state, tribe, or EPA as not meeting an appicable water quality standard, and require development of a total maximum daily load (TMDL) (pursuant to Section 303(d) of the CWA), or are addressed by an EPA

- approved or established TMDL, or are covered by pollution controls requ irements that meet the requirements of 40 FR 130.7(b)(1). For discharges that enter a separate storm sewer system prior to discharge, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system. For clarity, this revised definition includes Category 5 waters, Category 4a waters, and Category 4b waters.

Comment ID 0069.001.007 Issue Category: AppA

Author Name: Philip McNeely Definitions and Acronyms

Organization: City of Phoenix, Office of Environmental Programs

Appendix A - Definitions Material Safety Data Sheet. Since OSHA is now using the terminology Safety Data Sheet to replace Material Safety Data Sheet in their regulations, consider adding the term "Safety Data Sheet" as a separate entry in the list of definitions, and cross -referen ce these terms in each entry, noting that they

refer to the same document.

Hazardous Materials or Hazardous Substances or Hazardous or Toxic Waste. There are several places throughout the permit that use varying terms such as "toxic or hazardous material , toxic or hazardous waste, hazardous cleaning product", some of which are not specifically included in the above definition. Additionally, the definition for toxic or hazardous substance provided here is qualitative and performance based. Although 40 CFR 261.2 is listed as an example, the definitions in that section of the CFR are restricted to hazardous wastes. Two alternate approaches to consider, which might provide additional clarification, include:

1) Continue to include the several variations of terms as provided in the permit text, but provide references to other regulatory definitions for each, such as "hazardous substance means any substance on the EPA Consolidated List of Lists (CERCLA Hazardous substances listed at 40 CFR Table 302.4,

EPCRA Sec tion 302 Extremely Hazardous Substances, CAA Section 112( r) substances, EPCRA Section 313 Toxic Chemicals, and RCRA Hazardous Wastes), or "hazardous materials means those classified by the DOT as a hazardous material or as a marine pollutant as defined by 49 CFR 171.8."

2) If the intent is to be more all

- inclusive than above, the more general term "pollutant" might be used throughout the permit, instead of variants of the terms hazardous/toxic and substances/materials /wastes,

which can have several diff erent specific definitions from other regulations.

Oil. We suggest adding a definition for oil to the Appendix, including a regulatory citation. (Also see comments on Part 5.2.3.3.)

Toxic Materials. We suggest adding a definition to the Appendix for th is term, since it is used in Part

1.1.3. Also see comments under "Hazardous Materials or Hazardous Substances or Hazardous or Toxic

Waste".

Waters of the U.S. There appears to be a typographical error at 3(c).

Appendix A2

- Abbreviations and Acronyms2015 EPA MSGP Response to Comments June 4, 2015

360 MSDS. Since OSHA is now using the terminology Safety Data Sheet to replace Material Safety Data Sheet in their regulations, consider adding the acronym SDS as a separate entry in this list, as well as updating any references in the text of the permit.

R esponse In the list of acronyms in Appendix A of the final 2015 MSGP, EPA replaced “Material Safety Data Sheet” with “Safety Data Sheet.” EPA declines to include a definition for this term in the permit in the interest of keeping the list of defined terms limited and streamlined, and because this term is easily

understood.

EPA also revised Appendix A to define the terms “Hazardous Materials or Hazardous Substances or Toxic Materials” (the MSGP no longer uses or defines the term “Toxic Waste”), and these terms are consistent with terms used in the permit. EPA declines to modify the definition to include additional regulatory citations because it is not necessary for understanding the definition, i.e., it is self -explanatory. While the definition in Appendix A cites 40 CFR §261.2 as a basis for the definition, the definition is not restricted to hazardous wastes. EPA also declines to modify the definition to refer to “pollutants.” Pollutant has a regulatory definition (included in Appendix A of the MSGP) that differs from the MSGP

definition for “Hazardous Materials or Hazardous Substances or Toxic Materials.”

EPA declines to include a definition for “Oil” in the MSGP in the interest of keeping the list of defined terms limited and streamlined, and because this term is easily understood, but refers the commenter to the definition at 40 CFR §112.2.

Regarding the definition “Waters of the United States”, the final 2015 MSGP refers to the regulatory definition at 40 CFR §122.2.

Comment ID 0070.001.020 Issue C ategory: AppA

Author Name: Beth Goodnough Definitions and Acronyms

Organization: Western Fuels Association Inc.

Appendix A - Definitions Action Area: EPA's proposed expansion of the definition of "Action Area" should be removed. The 2008 MSGP was sufficient and should be retained. In particular, EPA's attempt to include areas where stormwater discharges originate and areas upstream from the stormwater discharge improperly expands EPA's authority under the Clean Water Act.

Discharge point: EPA should remove this definition from the proposed permit or add the phrase "to a water of the United States" after the phrase "discharged from the faci lity." Absent a discharge to a jurisdictional water, there is no basis for EPA regulation.

Response Regarding the definition of “Action Area”, see response to comment 0093.001.014.

EPA has revised the definition of “Discharge Point” in the fi nal 2015 MSGP in response to this comment.

The revised definition is: “ for the purposes of this permit, the location where collected and concentrated stormwater flows are discharged from the facility such that the first receiving waterbody into which the

d ischarge flows, either directly or through a separate storm sewer system, is a water of the U.S.”

Comment ID 0072.001.005 Issue Category: AppA2015 EPA MSGP Response to Comments June 4, 2015

361 Author Name: Leah Pilconis Definitions and Acronyms

Organization: The Associated General Contractors of America (AGC of America)

Draft Appendix A defines a "CERCLA Site" as one "that is undergoing a remedial investigation and feasibility study, or for which a Record of Decision for remedial action has been issued..." However, buried in the draft MSGP Fact Sheet (page 12), EPA notes: "This definition includes sites that have been listed on the National Priorities List ... or that are being addressed using CERCLA authority." EPA generally updates its National Priorities List (NPL) at least annually. As of Oct. 31, 2013, EPA has 1,313 sites on the NPL and there are currently another 54 sites that EPA has proposed for the NPL. [FN9] It stands to reason that dozens of new sites may be added to the NPL during the MSGP's five

- year permit

term.

[FN9] See EPA's website at http://www.epa.gov/superfund/sites/npl/status.htm.

Response EPA clarifies that only a very small subset of sites meeting the definition of “CERCLA Site” are included in Appendix P, and the list in Appendix P is static (i.e., EPA will not add additional CERCLA Sites to Appendix P throughout the permit term). The sites included in Appendix P are Tier 1 and 2 sediment sites in EPA’s areas of NPDES regulatory authority in EPA Region 10. The list of sites are limited to EPA Region 1 0 because EPA has extensive information that stormwater discharges are a source of CERCLA Site recontamination in the Region and the Region also has expertise in determining site -specific measures that are necessary to ensure industrial stormwater discharg es covered under the MSGP are not leading to recontamination of aquatic media at CERCLA Sites such that they cause or contribute to an exceedance of a water quality standard.

Comment ID 0073.001.011 Issue Category: AppA

Author Name: Kelly Norton Defini tions and Acronyms

Organization: Arizona Mining Association (AMA)

Part 2: The definition of "minimize" in the draft MSGP should be revised to correlate the implementation of stormwater management controls with the water quality requirements of the permit. The proposed

definition of "minimize" in the draft MSGP stresses r educing or eliminating discharges without regard to the impacts of those discharges on water quality in receiving waters. Although the definition does incorporate notions of technological practicability and economic achievability, which provides some

flexi bility, it nevertheless could be interpreted to require continuing expenses to improve stormwater discharge quality even if that discharge is not causing any negative effects in receiving waters.

AMA questions whether the proposed use of the definition of "minimize" is a reasonable approach, particularly in these difficult economic times. AMA suggests that either the definition of "minimize" be deleted and the term given its common sense meaning, o r that it be clarified in some fashion that further minimization is not required if water quality

- based requirements are being met. If the definition is not either removed or appropriately modified it will create an endless requirement to reduce or elimina te discharges for no real reason, thus creating the potential to impose additional costs and burdens with no corresponding benefit.

Response2015 EPA MSGP Response to Comments June 4, 2015

362 EPA disagrees with the commenter’s suggestion to revise the definition of minimize in the permit to correlate with the permit’s water quality requirements. The definition of “minimize” in the MSGP is used in the context of the MSGP’s technology

- based efflu ent limits, which, in accordance with EPA’s regulations, reflect the technological capability of permittees to control pollutants in their discharges (regardless of the effect of those discharges on surface water quality). Conversely, water quality -based

l imits supplement (as necessary) the permit’s technology

- based effluent limits to ensure that discharges are controlled as necessary to meet applicable water quality standards. EPA is retaining the definition of

“minimize” in the final 2015 MSGP because it provides clarity to permittees in meeting the permit’s technology- based effluent limits.

Comment ID 0083.001.012 Issue Category: AppA

Author Name: David Wagger Definitions and Acronyms

Organization: Institute of Scrap Recycling Industries, Inc. (ISRI)

The Proposed Definition of Minimize Should Incorporate ‘Feasibility'. The proposed definitions of "minimize" and "infeasible" ("Appendix A: Definitions, Abbreviations and Acronyms") share strikingly similar language (emphasis added):

Infeasible - for the purposes of this permit, infeasible means not technologically possible or not economically practicable and achievable in light of best industry practices. EPA notes that it does not intend for any permit requirement to conflict with st ate water rights law.

Minimize

- to reduce and/or eliminate to the extent achievable using control measures that are technologically available and economically practicable and achievable in light of best industry practices.

Based on the similarity between the two definitions, "minimize" entails the concept of "feasibility" (i.e., not infeasible), and its definition should formally include it. Such a change would be helpful for better understanding "minimize" and compliance in the context of the requir ements in §2 ("Control Measures and Effluent Limits"), §4 ("Corrective Actions"), and §8 ("Sector Specific Requirements").

Response EPA agrees with the commenter that the definitions for “minimize” and “infeasible” in the MSGP are similar. This was intentional. EPA declines to incorporate the term “feasible” into the definition for “minimize”, since the definition of “feasible” is essentially the same as “minimize” in the MSGP. However, EPA has added a definition for “feasible” to Appendix A of the final 2015 MSGP that is consistent with the definition of “minimize” to provide better clarity for permittees.

Comment ID 0093.001.009 Issue Category: AppA

Author Name: Amanda Aspatore Definitions and Acronyms

Organization: National Mining Association (NMA)

IV. The Definition of Corrective Action is Overly Broad, and the Revised Corrective Action Deadlines

are Unreasonable EPA should remove the definition of "Corrective Action" from Appendix A of the MSGP. EPA proposes to define this term to include "any action taken . . . to (1) repair, modify, or replace any stormwater control used at the site[.]" Such language is overly b road, as it could be interpreted to encompass a wide variety of activities at a site, not just those designed to correct problems associated with potential instream water quality implications. Pursuant to SWPPPs, facilities often initiate improvements as n ew2015 EPA MSGP Response to Comments June 4, 2015

363 technologies and site activities warrant, while the "corrective action" provisions in Part 4 apply only under specified conditions. EPA has not explained why this new definition is needed, and it should retain the framework from the 2008 MSGP, which limited the scope of the "corrective action" process.

Response See response to comment 0093.001.003.

Comment ID 0093.001.024 Issue Category: AppA

Author Name: Amanda Aspatore Definitions and Acronyms

Organization: National Mining Association (NMA)

VI. Appendix A - Definitions Action Area: As noted in the above comments, EPA's proposed expansion of the definition of "Action

Area" should be removed. The 2008 MSGP was sufficient and should be retained.

Antidegradation policy or antidegradation requirements: Under the Clean Water Act, antidegradation policies are developed and implemented by the states. Nothing in the MSGP should infringe upon the states' discretion to adopt and implement antidegradation policies. The proposed definition is senseless and unnecessary. Where EPA intends to reference its water quality standards regulation that requires

states and tribes to establish three

- tiered antidegradation programs, it should simply cite or refer to that regulation. It should not define "antidegradation policy" or "antidegradation requirement" as its own regulation.

Corrective action: EPA should remove the proposed definition from the MSGP for the reasons explained

above.

Discharge point: EPA should r emove this definition from the proposed permit or add the phrase "to a water of the United States" after the phrase "discharged from the facility." Absent a discharge to a jurisdictional water, there is no basis for EPA regulation.

Effluent limitations: This definition should be the same as that contained in the Clean Water Act, i.e., "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are dis charged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance."

EPA should add the definition for the term "Uncontaminated" that appears in Part 8.J.3.10 to this Appendix. This would provide additional clarity, as the term is used in Part 1.1.3 of the MSGP.

Response Regarding the definition of “Action Area”, see response to comment 0093.001.014.

Regarding the definition of “Antidegradation or Antidegradation Requirements” in the MSGP, EPA agrees with the commenter that antidegradation policies are developed and implemented by the states. EPA also agrees with the commenter that nothing in the MSGP should infringe upon the states' discretion to adopt and implement antidegradation policies, so long as those antidegradation requirements meet the requirements of the CWA, specifically 40 CFR 131.12. However, EPA disagrees that the definition in the MSGP is senseless and unnecessary, because it helps clarify for permittees what th e term means. EPA also contests that the definition at all affects states’ discretion to adopt and implement antidegradation policies. In fact, the definition acknowledges the state and tribal responsibilities for the2015 EPA MSGP Response to Comments June 4, 2015

364 program: “ Antidegradation Policy or An tidegradation Requirements

– the water quality standards regulation that requires states and tribes to establish a three

- tiered antidegradation program ...”

Comment ID 0094.001.019 Issue Category: AppA

Author Name: Eric Fry Definitions and Acronyms

Organization: Peabody Energy

24) Appendix A. A.1. Definitions. EPA's proposal to expand the definition for "Action Area" should be deleted, as the 2008 MSGP definition for this term was adequate. Specifically, EPA is trying to include areas where stormwater discharges originate and areas upstream from the storm water discharge, and this is an inappropriate expansion of the agency's CWA authority. Additionally, EPA should delete its proposed definition for "Discharge Point," or alternatively add "to a water of the United States" after t he phrase "discharged from the facility."

Response See response to comment 0093.001.014.2015 EPA MSGP Response to Comments June 4, 2015

365 

### Issue Category: Appendix D

- Activities Covered

Comment ID 0065.001.001 Issue Category: AppD

Author Name: Anonymous Public Comment Activities Covered

Organization: Private Citizen

Rather than continue the use of the outdated Standard Industrial Classification (SIC) codes, the EPA should consider using the new standard North American Industry Classification System (NAICS) codes for identifying sectors of industrial activity covered by the permit. The SIC is an outdated system that has not been updated since 1987. At the end of Appendix D the EPA offers a link to the US Census Bureau website stating that there is a table available to convert SIC codes to NAICS codes. However, this

conv ersion table will only convert the 1987 SIC code to the 1997 NAICS codes. The NAICS codes have been updated three times since 1997. This method of verifying appropriate codes and coverage availability is overly burdensome to industrial dischargers as well as municipalities charged with keeping an inventory of industrial dischargers within their permit area.

Requiring industrial and municipal dischargers to convert between multiple years and versions of classification codes also puts them at risk of improper identification of the outdated SIC code an industry may most closely fit, which opens the EPA and the discharger to regulatory noncompliance exposure that could be avoided entirely just by referencing the most updated codes to begin with.

Response

E PA is continuing to rely on SIC codes (and in some cases narrative descriptions) to maintain consistency with the industrial stormwater regulations at 122.26(b)(14)(i

- ix, xi). However, recognizing that NAICS codes replaced SIC codes and are commonly used by industry, EPA included an appendix in the 2015 MSGP that matches up regulated SIC codes with the most up -to- date NAICS codes for informational purposes. If an industrial facility operator is unsure if they are in a SIC code or Activity Code regulated

und er the MSGP, EPA recommends they contact the EPA Regional Office.2015 EPA MSGP Response to Comments June 4, 2015

366 

### Issue Category: Appendix E

- Endangered Species Procedures

Comment ID 0085.001.028 Issue Category: AppE

Author Name: Zachary Griefen et al. Endangered Species Act Procedures

Organization: Conservation Law Foundation et al.

B. EPA must ensure that its ongoing ESA Section 7 review of this MSGP covers the impact of PAHs discharged from permitted facilities into designated critical habitat for endangered sturgeon.

In the Fact Sheet, EPA notes that "[c]onsistent with Section 7(a)(2) of the Endangered Species Act (ESA), EPA has initiated and is in the process of consulting with the U.S. Fish and Wildlife Service (FWS) and NOAA Fisheries (previously referred to as the National Marine Fisheries Service), both collectively known as the ‘Services.'" [FN100] In light of the widespread discharge of PAHs from coal tar sealed pavements at industrial facilities, EPA should ensure that its consultation on this permit's impacts

s pecifically addresses the impact of PAH discharges on sturgeon, particularly sturgeon populations in stretches of the Connecticut river running through Massachusetts and New Hampshire where EPA Region 1 is the NPDES permitting authority.

Two ESA

- listed s pecies of sturgeon, the shortnose and Atlantic sturgeon, are found in major rivers on the east coast, notably in the Connecticut River, which for much of its length runs through states in which EPA is the primary NPDES permitting authority. As large, longl ived benthic feeders, sturgeon are known to be adversely affected by the accumulation of persistent organic pollutants, including polycyclic aromatic hydrocarbons (PAHs). Sturgeon larvae are also acutely sensitive to PAHs. PAH exposure in the doses associated with coal tar contaminated sediments has been found to cause upwards of 90% mortality in sturgeon larvae. [FN101]

In 2012, EPA Region 1 completed a Biological Assessment for reissuance of a NPDES permit to the Mount Tom Generating Station, located on the Connecticut River. [FN102] The Assessment notes that listed sturgeon species in EPA

- regulated stretches of the Connecticut River are adversely affected by PAHs in the river's sediment. EPA attributes these PAHs to historic coal tar deposits:

Coal ta r deposits released in the Connecticut River have likely affected spawning success, egg survival and/or larval development. Coal tar contains toxic Polycyclic Aromatic Hydrocarbons (PAHs) that are known to be carcinogenic. Other pollutants in the Connecticut River, such as polychlorinated biphenyls (PCBs), could affect shortnose sturgeon reproduction as well. In the Connecticut River, coal tar leachate was suspected of impairing sturgeon reproductive success. Kocan et al. (1993) conducted a laboratory study to investigate the survival of sturgeon eggs and larvae exposed to PAHs, a by

- product of coal distillation. Only approximately 5% of sturgeon embryos and larvae survived after 18 days of exposure to

Connecticut River coal

- tar (i.e., PAH) demonstrating that contaminated sediment is toxic to shortnose sturgeon embryos and larvae under laboratory exposure conditions (NMFS 1998). There are several known coal tar contaminated sites below the Holyoke Dam that have only recently begun to be cleaned up. It is like ly that these sites as well as any others have had adverse effects on any shortnose sturgeon present in the action area over the years. [FN103]

While EPA Region 1 attributed harmful PAH concentrations in Connecticut River sediments to historic

contaminat ion, the USGS has extensively evidence that PAH concentrations are still rising in many eastern waterbodies. USGS attributes this squarely to the use of coal tar pavement sealant on paved

surfaces - including the paved surfaces at industrial facilities. The USGS estimates that coal tar sealant use is likely the largest contributing source of PAH contamination in recent sediments.2015 EPA MSGP Response to Comments June 4, 2015

367 Therefore, PAHs discharged from industrial facilities regulated under this MSGP that use coal tar pavement sealants likely have a direct and adverse effect on sturgeon. In consulting with the Services, EPA must evaluate whether the agency's decision to issue a MSGP that does not control the discharge of PAHs from industrial facilities with coal tar sealed pavements "is likely to j eopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat."[FN104] In particular, EPA must evaluate the impact of PAHs discharged from coal tar sealed pavements at

industrial facilities in the Connecticut River and in listed sturgeon habitats throughout the eastern United

States.

[FN100] Fact Sheet at 70.

[FN101] See R.M. Kocan, M.B. Matta, and S.M. Salazar, "Toxicity of Weathered Coal Tar for Shortnose Sturgeon (Acipenser brevirostrum) Embryos and Larvae," 31 Archiv. Envt'l. Contamination & Toxicology 161 (1996) (attached to comments as exhibit).

[FN102] See EPA Region 1, Water Permits Branch, Office of Ecosystem Protection, "Biological Assessment Mount Tom Generating Station National Pollution Discharge Elimination System Permit Reissuance (Permit No. MA0005339)," dated May 25, 2012.

[FN103] Id. at 35.

[FN104] 50 C.F.R. § 402.14(g)(4).

Response EPA’s consultation under section 7 of the Endangered Species Act did consider effects to sturgeon from

coal

- tar sealcoat. Both Service offices concluded that the 2015 MSGP is not likely to jeopardize the

con tinued existence of listed species or result in the destruction or adverse modification of designated critical habitat in their biological opinions (available on the permit’s docket). EPA has included important protections in the 2015 MSGP that will minimize the likelihood of adverse effects to listed species as a result of discharges authorized under the MSGP. These protections include the ability for EPA to require specific additional control measures to ensure discharges meet water quality standards, in the event they

otherwise do not.2015 EPA MSGP Response to Comments June 4, 2015

368 

### Issue Category: Appendix F

- Historic Preservation Procedures

Comment ID 0032

- A1.001.001 Issue Category: AppF

Author Name: Brona Simon National Historic Preservation Act Procedures

Organization: Massachusetts Historical Commission

The draft Appendix F, "Procedures Relating to Historic Properties Preservation" is not consistent with the Advisory Council on Historic Preservation's (ACHP) regulations 36 CFR 800 that implement Section 106 of the National Historic Preservation Act of 1966 as amended (16 USC 470(f)).

Appendix F does not provide that the SHPO will be notified of proposed undertakings that have the potential to cause effects to historic properties if the applicant alone determines that no historic properties will be affected. This is not consistent with 36 CFR 800.2(a)(4), 800.3(a) and (c). Appendix F has applicants or their consultants who may not meet professional qualifications make critical decisions and determinations about the presence of or effects on historic proper ties, which is not consistent with 36 CFR 800.2(a)(1).

Appendix F does not provide that other interested or consulting parties

- such as local governments, organizations with an interest in the undertaking, or the public have the opportunity to be notified and to have the opportunity to participate, which is not consistent with 36 CFR 800.2(c)(3), 800.2(c)(5), 800.3(e), 800.3(f), and 800.4(a)(3).

Appendix F does not take into account effects of proposed new construction that does not involve

"subsurface d isturbance." New construction without subsurface disturbance also has the potential to cause effects to historic structures. Limiting consideration of historic properties to archaeological sites and not to historic structures or historic districts is not consistent with 36 CFR 800.4(b).

Steps 4 and 5 of Appendix F requires SHPO response within 15 days. This is not adequate time for the SHPO to review and comment. This period should be changed to 30 days to be consistent with 36 CFR 800.3(c)(4).

Appendix F has applicants enter into consultations and agreements to mitigate or avoid adverse effects which SHPO determines without the participation of the EPA. It has the applicants notify the ACHP of adverse effects. Under 36 CFR 800.2(a), however, these are E PA's legal responsibilities to meet the requirements of Section 106 and 110 of the NHPA. While the EPA may formally delegate some of the initial steps in the process (36 CFR 800.2(a)(3)) and 800.2(c)(4)), EPA remains legally responsible for all findings an d determinations. The responsibilities to make determinations of adverse effect, to notify the ACHP, to consult with consulting parties and to enter into agreement documents to resolve adverse effects, cannot be delegated to applicants or their consultants, or to consulting parties such as SHPO (36 CFR 800.2(a), and 800.3 to 800.6).

The MHC recommends that EPA not issue Appendix F of the draft permit until consultation in compliance with 36 CFR 800.14 is completed. The MHC advises EPA that ACHP must accept a proposed program alternative for it to have legal effect, consistent with Sections 106 and 110 of the NHPA and with ACHP's regulations (16 USC 470h

- 2(a)(2)(E)(i); 36 CFR 800.14(a)(4)).

Response EPA appreciates the Massachusetts Historic Commission’s (MHC) comments on the proposed changes to the historic properties eligibility procedures in the MSGP. EPA would also like to clarify the applicability2015 EPA MSGP Response to Comments June 4, 2015

369 of the NHPA to the MSGP. I ndividual notices of in tent to be covered under the general permit do not constitute separate federal undertakings, and, therefore, the NHPA regulations are not triggered for each notice of intent submittal. Accordingly, EPA does not agree that the regulations at 36 CFR 800 appl y to individual authorizations to discharge. However, to provide appropriate consideration of potential impacts to historic properties, EPA has included procedures that will ensure that adverse impacts to historic properties are minimized and that will provide opportunities for SHPOs, THPOs, and tribal representatives to be involved in the permit eligibility review process. These procedures (contained in Appendix F) provide appropriate site

- specific procedures for addressing historic property issues in

conn ection with EPA’s issuance of the 2015 MSGP. EPA does not anticipate any effects on historic properties from the pollutants in the stormwater discharges covered by the 2015 MSGP, and is not aware of any adverse effects on historic properties under the 2008 MSGP, nor the need for a written agreement. Therefore, EPA has decided not to make changes to the historic properties eligibility procedures in the

final 2015 MSGP from the 2008 MSGP.

Comment ID 0038.001.001 Issue Category: AppF

Author Name: Kelly Yasaitis Franizzo National Historic Preservation Act Procedures

Organization: Advisory Council on Historic Preservation (ACHP)

The Advisory Council on Historic Preservation (ACHP) appreciates the opportunity to review and provide commends on the "Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Industrial Activities," and specifically, on Appendix F of the draft MSGP, "Procedures Relating to Historic Properties Preservation." The ACHP is an independent federal agency that promotes the preservation, enhancement, and productive use of our nation's historic resources, and advi ses the President and Congress on national historic preservation policy. Further, under the National Historic Preservation Act (NHPA), the ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation i nto federal project requirements. Section 106 of the NHPA requires federal agencies to take into account the effects of the undertakings they fund, license, or permit on historic properties and provide the ACHP a reasonable opportunity to comment on

such u ndertakings.

The draft Appendix F appears to provide a process that deviates from the standard Section 106 process set forth in the implementing regulations, "Protection of Historic Properties" (36 CFR Part 800). Further, in the Appendix, EPA provides th e facility operator with the responsibility to consider the potential impacts from the installation of stormwater controls on historic properties and to determine whether actions can be taken to mitigate any such impacts. While the regulations at 36 CFR § 800.2(c)(4) allow EPA to authorize an applicant to initiate consultation with consulting parties, it remains legally responsible for all findings and determinations and must complete the requirements of the Section 106 process prior to approving such permits. The Appendix also appears to limit the types of undertakings to be considered and the parties that may be involved in the consultation process. The regulations at 36 CFR § 800.3 state how an agency establishes whether it has an undertaking subject to Section 106 review, and 36 CFR § 800.2 and § 800.6 clearly identify the participants that should be involved or invited to participate in the review process and when the ACHP must be notified and invited to participate in the consultation.

As one path to Section 106 compliance, EPA may pursue a program alternative pursuant to 36 CFR § 800.14(b) to tailor its Section 106 compliance for a specific program or series of undertakings. In fact, we have been in consultation with EPA to develop a programmatic agreement (PA) for this permit for some time. However, we are uncertain how that process to develop a PA is being coordinated with this current effort, and we are concerned about the timing of issuing this permit prior to completing the PA. We

remind EPA of its responsibility to conclude Section 106 review for this action prior to the issuance of a2015 EPA MSGP Response to Comments June 4, 2015

370 permit and respectfully request EPA clarify these points for us and other stakeholders already engaged in the negotiation of the referenced PA.

Response EPA appreciates the ACHP’s comments on the proposed changes to the historic properties eligibility procedures in the MSGP. EPA met several times with the ACHP to discuss the development of a programmatic agreement to meet Section 106 of the NHPA in connection with the issuance of the MSGP. While EPA has not yet finalized a programmatic agreement with the ACHP, SHPOs, and THPOs, EPA is finalizing procedures in the 2015 MSGP that will ensure appropriate consideration of potential impacts to historic properties and that adverse impacts to historic properties are minimized, and that will provide opportunities for SHPOs, THPOs, and tribal representatives to be involved in the permit eligibility review

process. EPA does not anticipate any effects on historic properties from the pollutants in the stormwater discharges covered by the 2015 MSGP, and is not aware of any adverse effects on historic properties

under the 2008 MSGP.

Comment ID 0039.001.001 Issue Category: AppF

Author Name: Erik Hein National Historic Preservation Act Procedures

Organization: National Conference of State Historic Preservation Officers (NCSHPO)

The National Conference of State Historic Preservation Officers (NCSHPO) is the national organization representing the State Historic Preservation Officers (SHPOs) in 59 states and US territories. We are submitting comments on Appendix F of the draft Natio nal Pollution Discharge Elimination System Multi

Sector General Permit (MGSP) for storm water discharges associated with industrial activities. This program will impact several of our member states and/or territories. Several of them will likely file their

own comments as well.

Our primary concern with Appendix F, "Procedures Relating to Historic properties Preservation," is that it seems to be an attempt to bypass or create a substitute process for complying with Section 106 of the

National Historic Pres ervation Act of 1966 (NHPA) as amended (16 USC 470(f)).

While the concept of a federal agency establishing alternate or specific programmatic procedures to comply with the law are common, the vehicle for doing so is typically a Programmatic Agreement or other program alternative. Such an instrument is developed in consultation with the Advisory Council on Historic Preservation (ACHP), the National Conference of State Historic Preservation Officers, Tribes, and impacted states. This helps to assure a clear process is developed that is not only understood by all stakeholders, it is one that complies with all applicable laws.

Beyond a using an inappropriate procedure for developing this instrument, the process outlined in Appendix F delegates consultation r esponsibilities to applicants that are the legal responsibility of EPA as the parent agency under 36 CFR 800.2(a). While certain steps can be delegated, the EPA cannot delegate the determination of adverse effects, notification to the ACHP, or the ratification of agreement documents designed to mitigate or resolve adverse effects. The final responsibility for these actions rests with the

EPA.

To resolve the issues with Appendix F, we would encourage you to work directly with the ACHP to develop a program alternative consistent with Sections 106 and 110 of the NHPA (16 USC 470h

2(a)(2)(E)(i)) and with ACHP's regulations (36 CFR 800.14(a)(4)).

Response2015 EPA MSGP Response to Comments June 4, 2015

371 See response to comment 0038.001.001.2015 EPA MSGP Response to Comments June 4, 2015

372 

### Issue Category: Appendix G

- Notice of Intent

Comment ID 0031.001.008 Issue Category: AppG

Author Name: Anthony Grieggs Notice of Intent

Organization: Los Alamos National Security (LANS)

10. Appendix G

- Notice of Intent (NOI) Form The NOI associated with the 2008 MSGP did not require any outfalls to be entered. The proposed 2013 MSGP requires all outfalls to be entered, along with their associated latitude/longitude, among other information. What is the value added of including this information in the NOI? In the current eNOI system, there is an option to enter this information in the DMR.

Recommendation: If the outfall information is required, it should only be required to be entered into one document. If it will be required as p art of the DMR entry process it should not also be needed as part of the NOI. Second, specify the exact format for location information as well as required accuracy and precision.

Response EPA is requiring outfalls to be reported in only one place under the final 2015 MSGP, the NOI form. The new reporting system that will be used under the 2015 MSGP, the NPDES eReporting Tool (NeT), necessitates that outfall information be reported on the NOI form because information from the NOI form

will be transmitted for DMR reporting in NetDMR. Permittees will not be required to re

- enter outfall information on their DMR forms. Additionally, a user

- reported outfall location facilitates the automatic identification of receiving waters information through a new webservice integrated onto the electronic

NOI form.

EPA also notes that applications for individual industrial stormwater permits require outfall latitude and longitude information. See form 2F ( http://www.epa.gov/npdes/pubs/3510-2F.pdf ).

Comment ID 0056.001.001 Issue Category: AppG

Author Name: Ryan Crosbie Notice of Intent

Organization: Pike Industries, Inc.

Reference: Appendix G Notice of Intent Part E.2, Permit Section 8.J, and Appendix D.

Due to an apparent programming issue in the web

- based system (eNOI), some operators of Sector J (Non

metallic mineral mining and dressing) operations where dewatering occurs were sent incorrect Numeric Effluent Limitation requirements. According to Section 8.J (of both the 2008 and the proposed 2013 permits), crushed stone and construction sand and gravel mining operations are only required to monitor pH. However, in several cases, the eNOI system indicated that required effluent limitation monitoring

inclu ded pH and total suspended solids (TSS). According to the 2008 and 2013 permits, the TSS requirement ONLY applies to dewatering discharges at industrial sand mining operations (Table 8.J

- 2: SIC 1446). It appears that when an operator indicates on the eNOI that their facility is in subsector J1 or J2, the system automatically prescribes the effluent limitations for industrial sand mining operations (SIC 1446). This situation creates confusion and the potential for non -compliance.

THEREFORE: The EPA should correct the eNOI system to account for all of the variations in Sector J, and assign the effluent limitations that correspond to the SIC code, rather than the Subsector code.2015 EPA MSGP Response to Comments June 4, 2015

373 Alternatively, the subsector codes should be reorganized and the corresponding ef fluent limitations reassigned.

Response EPA has developed a new system for reporting NOIs, NOTs, and Annual Reports, the NPDES eReporting Tool (NeT). While EPA does not anticipate there will be errors similar to those described by the commenter, EPA does note that where there is a discrepancy between information in the electronic reporting system and in the permit, the requirements in the permit apply. If a permittee believes there may be an issue or error in the electronic reporting system, EPA encourages the permittee to contact EPA immediately.

Comment ID 0057.001.001 Issue Category: AppG

Author Name: Anonymous Public Comment Notice of Intent

Organization: Private Citizen

Reference: Appendix G Notice of Intent Part E.3. The Federal Register, Proposed MSGP, and Proposed Fact Sheet fail to clarify if the outfall information required in the proposed NOI will be in addition to the web

- based (eNOI) outfall setup operators must certify in order to submit discharge monitoring re ports.

• As the proposed permit is written, when there is a change in the number of outfalls, or characteristics of any outfall, at a facility, which is a possibility during the permit term, the facility will have to prepare and certify: 1) an updated NOI, 2) an updated Outfall Setup, and 3) an updated SWPPP. This results in a significantly increased burden on the facility and a greater potential source of errors for operators.

THEREFORE: Perhaps an alternative, more generalized approach could be used in the NOI portion. Another approach would be to automatically extract the information required for the outfall setup from the eNOI, thereby eliminating one redundant step.

Response EPA clarifies that outfall information is only required to be reported electronically on the NOI form in the NPDES eReporting Tool (NeT); permittees do not have to again report their outfall information on the electronic DMR form in NetDMR (it will be automatically populated with the information entered on the NOI form). This clarification addresses the commenter’s concern.

Comment ID 0071.001.002 Issue Category: AppG

Author Name: Robert Barnes Notice of Intent

Organization: Midas Gold Inc. (MGI)

Specific Concerns 1. Notices of Intent (NO1s) The provision in the new proposed regulations that requires benchmark monitoring for metals also requires hardness data be submitted for the receiving water. This will create unnecessary delays in filing timely NOis, while waiting for sample results and determining "baseline" hardness conditions and factors.

Response EPA’s electronic reporting system determines applicable monitoring reporting requirements based on information entered into the NOI (e.g., industrial sector, impaired waters, applicable nume ric effluent limits), and uses this information to develop pre

- populated DMR forms in NetDMR. EPA needs to know2015 EPA MSGP Response to Comments June 4, 2015

374 the hardness of the receiving waterbody on the NOI so that it can prepopulate the appropriate hardness

based benchmark concentrations on the NetDMR form. EPA notes that the question only applies if the facility is subject to benchmark monitoring for hardness

- dependent metals. Additionally, because most permittees seeking coverage under the 2015 MSGP are existing discharges, existing dischargers subject to

hardness- based benchmark monitoring should already have receiving waterbody hardness that was collected under the 2008 MSGP. Therefore, possible burdens associated with reporting this information sooner in the process (i.e., on the NOI form) will be limited to new dischargers subject to hardness -based benchmark monitoring.

Comment ID 0085.001.021 Issue Category: AppG

Author Name: Zachary Griefen et al. Notice of Intent

Organization: Conservation Law Foundation et al.

This comment regarding the need for the applicant's SWPPP to be online and readily available to EPA and the public relates to several sections of the proposed MSGP and the NOI Form, as follows:

•Appendix G: Notice of Intent (NOI) Form o Commenters note that under Subsection F of the NOI, Option 2 allowing for the provision of selected or summarized information from the facility's SWPPP should only be available after receiving a waiver from the electronic reporting requirements pursuant to MSGP § 7.1.

Response See response to comment 0085.001.016.

Comment ID 0085.001.053 Issue Category: AppG

Author Name: Zachary Griefen et al. Notice of Intent

Organization: Conservation Law Foundation et al.

23. Add to the list of additional information required to be included in the NOI an electronic copy of the facility's engineered site plan, showing at a minimum all the information listed at § 5.2.2 of the proposed MSGP;

Response See response to comment 0085.001.020.

Comment ID 0085.001.061 Issue Category: AppG

Author Name: Zachary Griefen et al. Notice of Intent

Organization: Conservation Law Foundation et al.

33. Modify the eNOI to require information on the receiving waterbody for each outfall, inadditon to the current requirement that permittees provide the latitude and longitude of their outfalls;

Response EPA clarifies that operators seeking coverage under the MSGP must electronically report their receiving waterbody information, in addition to the latitude and longitude of their outfalls.2015 EPA MSGP Response to Comments June 4, 2015

375 

### Issue Category: Appendix I

- Annual Reporting Form

Comment ID 0031.001.009 Issue Category: AppI

Author Name: Anthony Grieggs Annual Reporting Form

Organization: Los Alamos National Security (LANS)

11. Appendix I

- Annual Report Form Instructions to Appendix I indicate "Operators must submit an Annual Report to EPA electronically, per Part 7.2, no later than 45 days after conducting the fourth (i.e., final quarterly facility inspection for the year required in Part 3.1."

Recommendation: It is recommended that the language be changed to allow the Annual Report to be submitted to EPA 45 days after conducting the final routine facility inspection for the year required in Part 3.1.

Response See response to comment 0031.001.007.2015 EPA MSGP Response to Comments June 4, 2015

376 

### Iss ue Category: Appendix K

- No Exposure Certification

Comment ID 0021.001.012 Issue Category: AppK

Author Name: Lee Epstein No Exposure Certification

Organization: Chesapeake Bay Foundation

Appendix K, Part D.11

- The "No Exposure Certification Form" allows a facility to be excluded from most of this General Permit's requirements, but one of its major presumptions may be faulty. The question is asked on the form whether the facility has "paved or roofed over" a formerly exposed pervious area, so that it may qualify for the "no exposure" exclusion; the form then seeks further information as to scale. The problem is that a roofed

- over area may eliminate direct contact with certain potential poll utants, but it may also vastly increase runoff volume and velocity from the site, which themselves can be tremendously damaging to nearby waters. Twenty acres of impervious surface (not unusual for large, interstate bulk warehousing and truck transfer facilities, for example), whether rooftop or paved parking/storage area, produces 600,000 gallons of water with a one inch rainstorm. Indeed, a paved surface on which vehicles move or are parked contains oil, fuel, and grease drippings, brake linings and parti cles of engine components, etc. Yet here it is considered in the first order to be a generally good thing (even though the section does state that if there is material on the ground from "spills and leaks" no exclusion is available). While we agree that a facility should be allowed to certify a general exclusion, instead of this formulation we recommend that such only be permitted if the industrial facility also certifies that any increases in volume or velocity of runoff as a result of covering or paving are effectively reduced and slowed, and the runoff treated, through the use of stormwater best management practices meeting current state standards for new development.

Response Here EPA agrees with the commenter that impervious surfaces can impact water quality due to the increased volume and velocity of stormwater that is generated. In fact, the MSGP includes the following control measure selection and design consideration: “ Minimizing impervious areas at your facility and infiltrating runoff onsite (including bioretention cells, green roofs, and pervious pavement, among other approaches) can reduce runoff and improve ground water recharge and stream base flows in local streams, although care must be taken to avoid ground water contamination .” However, the existence of impervious cover at an industrial facility does not disqualify an operator for the exclusion in accordance with EPA’s regulations at 40 CFR 122.26(g), which states that “’No Exposure’ means that all industrial

materials are protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt, and/or runoff,” (emphasis added). See 40 CFR 122.26(g) for full regulation. Nevertheless, EPA encourages operators of industrial activities, including those operating under the no exposure exclusion, to impleme nt measures to reduce the volume and velocity of stormwater generated from impervious surfaces (e.g., through stormwater retention, through a reduction in effective impervious cover).

Comment ID 0085.001.029 Issue Category: AppK

Author Name: Zachary Griefen et al. No Exposure Certification

Organization: Conservation Law Foundation et al.

VII. Other Concerns A. Appendix K, the "No Exposure Certification Form," should be modified to clarify that the discharge in storm water runoff of particles or residuals from roof stacks and/or vents not otherwise regulated will preclude eligibility for the No Exposure Exclusion.2015 EPA MSGP Response to Comments June 4, 2015

377 This clarification is consistent with section 3.2.1 of EPA's June 2000 Guidance Manual for Conditional Exclusion from Storm Water permitting Based on "No Exposure" of Industrial Activities to Storm Water ("No Exposure Exclusion Guidance"), which states:

Deposits of particles or residuals from roof stacks/vents not otherwise regulated and which could be mobilized by storm water runoff, are considered exposed.

It is also consistent with section 3.2.2 of the No Exposure Exclusion Guidance, which recognizes that "dissolved metals or other contaminants [on roofs] that could cause or contribute to a water quality violation" will preclude ce rtification of no exposure.

Industrial stormwater is likely to be highly contaminated by pollutants released from air stacks or vents on enclosed facilities. As is evident from EPA's Toxic Release Inventory database, many facilities in the categories of industry subject to the terms of the Multi

- Sector Permit release pounds

- even tons - of heavy metals through their stacks and vents every year.

Often these stacks and vents are not even covered by an air permit. Heavy metals emitted from the stacks

and vents of these facilities settle on the facilities' roofs or grounds, become mobilized by precipitation, and are discharged untreated and undetected into waters of the United States. Mobilized pollutants from stack and vent emissions are a significant source of water pollution and should be monitored and controlled. The mere fact that a facility is enclosed does not mean it is not a significant contributor of pollutants to waters of the United States. Similarly, the mere fact that stack and vent pollution of storm water may not be visible to the naked eye does not mean that it is not present in unacceptable and harmful

amounts.

As currently drafted, the conditional no exposure exclusion will effectively excuse several categories of industry from the import ant provisions of the Multi

- Sector Permit. These categories of industry are those that traditionally carry out industrial activities indoors and vent their industrial byproducts such as heavy metals to the air through stacks and vents.

Response

The No Exposure certification in Appendix K does clarify that roof stack/vent particles evident in stormwater flow disqualify the operator for the exclusion from permit coverage. EPA also points out that the permit and fact sheet include language clarifying that pollutant deposits are considered industrial stormwater pollutants subject to NPDES stormwater permitting. For example, Part 5.2.3 of the permit

states “ For structures located in areas of industrial activity, you must be aware that the structures

themselve s are potential sources of pollutants. This could occur, for example, when metals such as aluminum or copper are leached from the structures as a result of acid rain. ” Additionally, the fact sheet

states: “ Note that potential pollution sources include a facility’s roof(s) and other surfaces that could accumulate pollutants originating from an industrial process and deposited through the air. Roofs, walls, etc., exposed to emissions from industrial areas can build up such pollutants over dry periods, which c an be mobilized during a rain event or in snowmelt, so these areas need to be identified and included in SWPPP development. Likewise, industrial structures containing materials that could become pollutants discharged in stormwater (e.g., copper cladding on buildings or zinc from galvanized fences) must also be identified as potential pollutant sources .”2015 EPA MSGP Response to Comments June 4, 2015

378 

### Issue Category: Appendix M

- Discharge Monitoring Report (DMR) Form

Comment ID 0031.001.010 Issue Category: AppM

Author Name: Anthony Grieggs Disch arge Monitoring Report (DMR) Form

Organization: Los Alamos National Security (LANS)

12. Appendix M

- Discharge Monitoring Report (DMR) Form: In the proposed 2013 MSGP, the MSGP Industrial Discharge Monitoring Report (MDMR) requires a box to be checked if no discharge has occurred for each outfall. Under the 2008 MSGP, "no discharge" was only required for the monitored outfall with substantially identical outfalls listed on the same line. In the current eNOI system, "no discharge" information is not specifically entered. What is the value of requiring "no discharge" information for every individual outfall at a facility? Having to determine

wheth er each individual outfall flowed during a rain event will require additional resources for complex facilities with a significant number of outfalls.

Response EPA has not made substantial changes to the paper DMR form in the final 2015 MSGP, and clarif ies that the 2008 MSGP did require each substantially identical outfall to be listed on the DMR form, with an indication if there was no discharge. EPA notes, however, that the concern raised by the commenter is addressed in the electronic DMR system, whic h does not require permittees to report results for substantially identical outfalls.2015 EPA MSGP Response to Comments June 4, 2015

379 

### Issue Category: Appendix P

- List of Federal CERCLA Sites

Comment ID 0069.001.008 Issue Category: AppP

Author Name: Philip McNeely List of Federal CERCLA Sites

Organization: City of Phoenix, Office of Environmental Programs

Appendix P

- List of Federal CERCLA Sites This Appendix is not a comprehensive list of federal CERCLA Sites, but appears to be a list of Region 10 sites with a concern for "recontamination of aquatic media at the CERCLA site."

• Are the CERCLA sites in this Appendix intended to be limited to Aqu atic Media sites? If yes, consider changing list title to a more specific description, such as 'Federal CERCLA Sites Requiring Protection of Aquatic Media'.

• We suggest clarifying that Appendix P applies only to EPA Region 10.

• Nationwide, will all C ERCLA PRP facilities requiring a MSGP be required to contact the Regional EPA office before submitting an NOI? What if a MSGP facility overlies a CERCLA site, but facility owner/operator isn't a CERCLA PRP?

Response See response to comment 0042.001.002. EPA also clarifies that the Region 10 sites listed in Appendix P are all contaminated sediment sites. However, EPA does not agree that it is necessary to change the title of the Appendix, since this permit clearly applies to discharges of stormwater from industrial facilities to waters of the U.S. (and therefore it is implied that the sites listed are all related to aquatic media).

Comment ID 0072.001.006 Issue Category: AppP

Author Name: Leah Pilconis List of Federal CERCLA Sites

Organization: The Associated General Contractors of America (AGC of America)

Draft Appendix P purports to be a "List of Federal CERCLA Sites," but upon closer examination, the list is restricted to sites in EPA Region 10 only; it does not include the NPL sites for the states and territories outside of that region and where EPA remains the NPDES permitting authority: Massachusetts (31 NPL sites), New Hampshire (20 NPL sites) and New Mexico (14 NPL sites) or the District of Columbia (1 NPL site), for example. [FN10] To mak e matters more confusing, draft Appendix P states: "The areas where the permit applies are in Part C of the permit. For an up to date list and maps of CERCLA sites in Region 10, please check the Region 10 Superfund list viewable at http://yosemite.epa.gov/R10/cleanup.nsf/sites/cleanuplist."

In trying to make sense of why Appendix P omits nearly 100 current NPL sites within EPA's jurisdiction and why it points to Region 10 for the most up -to- date list of CERCLA sites, AGC took note of one sentence in Appendix G

- NOI Instruction Form: "Refer t o the list of federal CERCLA sites that include a waterbody cleanup are provided in Appendix P of the permit" (emphasis added).

[FN10] See EPA's website at http://www.epa.gov/superfund/sites/npl/status.htm and http://www.epa.gov/superfund/sites/query/queryhtm/nplfin.htm.2015 EPA MSGP Response to Comments June 4, 2015

380 Response See response to comment 0042.001.002.2015 EPA MSGP Response to Comments June 4, 2015

381 

### Issue Category: Overall Cost Issues

Comment ID 0040.001.013 Issue Category: C.1

Author Name: Kevin Walgenbach Overall Cost Issues

Organization: National Ready Mixed Concrete Association (NRMCA)

The ready mixed concrete industry is made up of thousands of ready mixed concrete plant locations. Many companies operate multiple plants. Requiring the numerous changes and updates as listed in the notice will mandate cost increases, and greater personnel and resource allocation for each company and location in order to remain compliant. To this end, NRMCA is opposed to burdening businesses of all sizes with unnecessary changes to the MSGP.

Response While a response is not required because this particul ar comment is vague, EPA does note that it has determined the requirements of the 2015 MSGP to be economically practicable and achievable for all sectors covered. See discussion on p. 22 of the Fact Sheet.

Comment ID 0060.001.006 Issue Category: C.1

Au thor Name: Katherine Preston Overall Cost Issues

Organization: Airports Council International

- North America (ACI

NA)

Cost Impact Analysis for the Multi

- Sector General Permit (MSGP) "Based on estimates provided in prior permits, EPA estimates that the average annual cost of complying

with the 2013 MSGP is: i. For New Facilities: $2,752 ii. For Existing Facilities: $2,199 These numbers were developed by updating previous estimates to 2013 dollars, and account for several different aspects of permit compliance, including NOI submission, SWPPP preparation and implementation, inspections, recordkeeping, sampling, and reporting."

The estimated cost of compliance for new and existing airport facilities is very low. The cost of preparing a SWPPP Update, which is typically required every few years, ranges from $20K to $100K dependent on the size of the airport. Compliance monitoring including labor, equipment, and laboratory analyses, cost s a minimum of $2,000 per event per outfall depending on the number of parameters. More significantly, the costs for purchasing and operating GRVs, designing/building deicing Pads, and/or operating other deicing runoff containment and treatment/disposal programs are orders of magnitude higher than the listed cost. It is recommended that realistic compliance cost estimates specific to Sector S be provided instead of average costs calculated across a very wide range of dissimilar industries and facilities.

Response EPA recognizes that costs of compliance will vary considerable among and even within industrial sectors. The cost estimates included in the proposed and final MSGP are industry averages. The 2008 MSGP cost analysis acknowledged that annual co mpliance costs can range up to $54,917 for new facilities and $26,941 for existing facilities.

Comment ID 0078.001.004 Issue Category: C.1

Author Name: Jerry Call Overall Cost Issues2015 EPA MSGP Response to Comments June 4, 2015

382 Organization: American Foundry Society (AFS)

Consequently, many metalcasting facilities will incur significant compliance costs and have to undertake unnecessary procedural steps to address exceedances of the benchmark values as part of the MSGP process. These efforts can be expensive to implement and can lead to other potential compliance and permitting impacts for their facilities. Provided below is a summary of the comments and concerns that AFS has regarding the draft MSGP and the potential adverse impacts it may have on the metalcasting industry.

Response No response required.

Comment ID 0078.001.006 Issue Category: C.1

Author Name: Jerry Call Overall Cost Issues

Organization: American Foundry Society (AFS)

III. ESTIMATED IMPACTS OF BENCHMARK VALUES FOR METALCASTING FACILITIES

SUBJECT TO DRAFT MSGP A. Storm Water Monitoring Cost Impacts If the foundry was new or newly subject to the MSGP and needed to start sampling for the first time, it must develop sampling protocols, revise its SWPPP, train staff, perform the sampling, compare the analytical results with benchmarks, submit the quarter ly data, and prepare an annual report with a comparison of data to benchmarks to EPA. For example, a medium

- sized foundry with two stormwater sampling points that was previously doing visual inspections with no analytical sampling would need to collect qua rterly grab samples during the first flush of a storm event. It would then need to test for aluminum, copper, iron, zinc, and total suspended solids. The analytical costs for four events would be less than $1,000. The labor costs for sample collection would be approximately $1,000 to $2,000.

If the foundry retained a technical professional for all of these activities (not including the sampling), the first year cost would be approximately $6,000 to 8,000, with annual sampling and reporting costs of $2,000 to 3,000, assuming that it is not necessary to modify BMPs.

B. Cost of Typical BMPs As discussed above facilities would need to implement one or more BMPs to control stormwater discharges. Typical BMPs to reduce suspended solids and metals levels in ru noff could include, but not be limited to, the following:

• inlet protection such as catch basin inserts or filter socks ($6,000 to $10,000/yr); • vegetated bioswale or buffer strips ($30,0000 to $50,000, plus $1,000/yr); • detention ponds ($150,000 to $200,000, plus $5,000 to $10,000/yr); • filter systems ($100,000 to $750,000, plus $10,000 to $20,000/yr); • hydrodynamic separators ($75,000 to $300,000, plus $5,000 to $10,000/yr); • regular sweeping ($20,000 to $25,000/yr); • general housekeeping a nd weekly inspections (as much as $50,000/yr); and • inside or covered storage (wood frame building, 3,200 SF at $60,000 to 80,000)

The decisions on which BMPs to implement at a foundry will depend on the specific conditions and needs

at each individual facility.

C. Evaluation of Existing BMPs and Need for Additional BMPs2015 EPA MSGP Response to Comments June 4, 2015

383 If the facility has benchmark value exceedances, it could trigger additional activities such as an evaluation of existing and new BMPs. Initially, the additional BMPs would most like ly include improved procedures, maintenance, and housekeeping, etc.

The first step is for the foundry to re

- evaluate existing BMPs, including whether they are being fully implemented and if improvements to existing BMPs can be made. If the foundry choose s to retain the services of a technical consultant, the cost for the evaluation would be approximately $4,000 to $6,000. This evaluation would include a site visit, review of the SWPPP, review of existing BMP implementation, and provide recommendations for additional BMPs. A period of time would then be required to see if significant reductions in pollutant concentrations could be obtained with renewed or improved BMPs. The facility's permit typically would then provide for the re

- evaluation of results following the next year's sampling event. The approximate cost would be $1,000 to $2,000 for a data review and preparation of a

letter to EPA with results.

Assuming that benchmarks are still exceeded, the foundry may then be required to prepare a feasibility report to determine if additional BMPs, such as bioswales, media filters, retention ponds, and other low

tech BMP's would be effective. The cost for the feasibility report would be approximately $5,000 to $10,000. The likely conclusion of the technical and economic feasibility report would be that the implementation of new BMPs may still not achieve the benchmark values (e.g., the copper benchmark value) for the majority of facilities.

D. Implementation of Stormwater Treatment (Beyond BMPs) If additional BMPs are still not achieving benchmarks (and if EPA required strict compliance or identified possible stream impairment), then end -of- pipe, mechanical/chemical stormwater treatment may be required. While this may appear to be an extreme option, it may be necessary if the facility must meet numeric limits as part of the MSGP or it may be forced to secure an individual facility permit outside the

MSGP and have to meet new numeric limits set at or near benchmark values.

To design a treatment system, bench and pilot studies should be conducted to determine if the benchmark

values can be achieved with end -of- pipe, mechanical/chemical treatment. Following these studies, engineering, design, and permitting of the treatment sy stem would be needed

-- this could take 18 to 24 months to complete. A certified wastewater treatment operator may also be required, along with maintenance and monitoring for the system.

To estimate the cost of a typical treatment system for a medium

- siz ed facility, the following assumptions and parameters were used.

• Collect runoff from a four

- acre building, a four

- acre paved storage/parking lot, and a two

- acre contiguous grassed area. Other un

- impacted stormwater would be segregated out.

• Utilize e xisting storm sewer and outfalls. • Land is available to construct a treatment facility. • Design for a 25

- year, 10

- day storm event with eight inches of rain. For example, that would be 1,776,000 gallons of runoff, or 177,600 gpd to treat in order to have all water treated within 10 days. • Construct an approximate one

- acre earthen basin with a clay

- type soil barrier to collect the entire runoff volume and retain it to allow the treatment at a reduced flow rate, rather than to treat for the peak flow

dur ing a runoff event. • Install a sand filter system to remove fine particulates not removed by settling in the basin. • Install a system to remove copper and zinc levels to proposed benchmark levels.

• Treatment consists of a skid

- mounted system or modules, and includes neutralization, filter media, activated alumina adsorption media, piping, pumps and controls.2015 EPA MSGP Response to Comments June 4, 2015

384 • Assumed storm water quality levels for the runoff are 0.4 mg/L copper and 0.77 mg/L for zinc. Based

on a hardness level of 150

- 175 mg/L, the presumed standards that the facility would need to achieve are 0.0221 mg/L Cu and 0.18 mg/L Zn. • A land area of about two acres is required for treatment operations.

The approximate costs for installing the treatment facility would include approximately :

• $100,000 for engineering, design, and permitting; • $600,000 for construction and documentation; • $30,000 for startup; and • $200,000 for annual operation and monitoring.

Cost Summary of Complying with MSGP

As discussed above, the costs for meeting the procedural steps and remedial options that are triggered with an exceedance of benchmark values can be a staggering amount. A summary of the costs is provided below in Table 2 (see original comment letter EPA -HQ-OW-2012-0078).

TABLE 2: Summary of Estimated Compliance Costs [Not included in database] As summarized above, the costs that foundries may have to incur to take unnecessary procedural steps to demonstrate that the BMPs in place are effective are substantial. The cost associated with sampling stormwater discharges alone would exceed EPA's annua l compliance cost estimate for the draft MSGP. The costs of implementing BMPs, evaluating existing BMPs, and determining if additional BMPs or treatment systems are needed require a significant compliance commitment from metalcasting facilities

with substa ntial costs. It does not appear that EPA has even considered the need for these activities and the costs associated with them. Such unnecessary costs are clearly not an intended consequence of the MSGP process, particularly where foundries have made significant investments to implement available BMPs to control stormwater discharges.

IV. CONCLUSION On behalf of the American Foundry Society, we appreciate the opportunity to submit these comments on

the draft Multi

- Sector General Permit for Stormwater Disc harges from Industrial Sources. As discussed above in these comments, the cost of compliance with the procedural requirements of the draft MSGP

when benchmark values are exceeded can be substantial

-- significantly more than EPA claims in its compliance co st estimates for the MSGP. It is, therefore, imperative that EPA set benchmark values at appropriate values so that effective BMPs can be properly evaluated and so that facilities subject to the MSGP are not unnecessarily subject to unreasonable compliance costs based on unrealistic benchmark values. Benchmark values are meant to be predictive of effective BMPs, and should therefore be set accordingly. AFS does not believe that EPA has done so in an appropriate manner with the 2013 draft

MSGP.

AFS request s that EPA reconsider the substantial costs and significant potential adverse impacts of the draft MSGP because as discussed above they do not appear to be consistent with the general purpose and intent of the MSGP program.

Response See response to comm ent 0060.001.006 and see also the monitoring essay. Additionally, EPA does note that it has determined the requirements of the 2015 MSGP to be economically practicable and achievable. See discussion on p. 22 of the Fact Sheet.2015 EPA MSGP Response to Comments June 4, 2015

385 Comment ID 0079.001.003 Iss ue Category: C.1

Author Name: Jeffery Hannapel Overall Cost Issues

Organization: The Policy Group on behalf of the National Association for Surface Finishing (NASF)

Consequently, many surface finishing facilities will incur significant compliance costs and have to undertake unnecessary procedural steps to address exceedances of the benchmark values as part of the MSGP process. These efforts can be expensive to implement and can lead to other potential compliance and permitting impacts for their facilities.

Response See response to comment 0078.001.006 and 0060.001.006.

Comment ID 0079.001.005 Issue Category: C.1

Author Name: Jeffery Hannapel Overall Cost Issues

Organization: The Policy Group on behalf of the National Association for Surface Finishing (NASF)

III. ESTIMATED COSTS AND IMPACTS FOR FACILITIES SUBJECT TO DRAFT MSGP The costs that surface finishing operations may have to incur to take the procedural steps to demonstrate that the BMPs in place are effective are substantial. The costs associated with sampling stormwater discharges alone would exceed EPA's annual complia nce cost estimate for the draft MSGP. The costs of implementing BMPs, evaluating existing BMPs, and determining if additional BMPs or treatment systems are needed require a significant financial commitment from surface finishing facilities to ensure compli ance with the MSGP. It does not appear that EPA has even considered the need for these activities and costs associated with them. Such unnecessary costs are clearly not an intended consequence of the MSGP process, particularly where surface finishing opera tions have made significant investments to implement available BMPs to control stormwater discharges.

Response See response to comment 0078.001.006 and 0060.001.006.

Comment ID 0079.001.007 Issue Category: C.1

Author Name: Jeffery Hannapel Overall Cos t Issues

Organization: The Policy Group on behalf of the National Association for Surface Finishing (NASF)

Accordingly, NASF urges EPA reconsider the substantial costs and significant potential adverse impacts of the draft MSGP, because as discussed above EPA's analysis does not appear to be consistent with the general purpose and intent of the MSGP program.

Response See response to comment 0078.001.006 and 0060.001.006.

Comment ID 0086.001.004 Issue Category: C.1

Author Name: Daniel Graham Overall Cost Issues

Organization: PacRim Coal, LP on behalf of the Alaska Coal

Association2015 EPA MSGP Response to Comments June 4, 2015

386 IV. EPA Has Not Adequately Considered Compliance Costs for the Mining Industries EPA's compliance cost projections associated with the proposed MSGP are inadequate. The increased
costs on a per

- facility basis would be enormous in light of, in particular, the new requirements in Sector H, that EPA has adopted from the 2012 CGP discussed above. EPA's Cost Impact Analysis for the MSGP does not include any estimates for the new Part 8 requirements. EPA does not even attempt to analyze the costs of full compliance by mining facilities with the 2012 CGP requirements that EPA proposes to impos e. EPA's lack of analysis is puzzling. This proposal is not a mere renewal of the 2008 MSGP. It dramatically expands regulatory burdens, and should EPA proceed as proposed, entire new cost compliance assessments must be conducted and reviewed by the Office of Management and Budget. In particular, the mining industry is comprised of many small business entities, especially in the mineral exploration sector, and the adverse economic impacts on these small business entities must be assessed. EPA must provide s upport for its assertion that the expected economic impact on small businesses will be minimal.[FN11] The rulemaking record thus far developed by EPA and made available to the public does not sufficiently demonstrate compliance with the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act.

[FN11] See 78 Fed. Reg. at 59677.

Response See response to comment 0078.001.006 and 0060.001.006.

Comment ID 0092.001.008 Issue Category: C.1

Author Name: Jeffrey Longswo rth Overall Cost Issues

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

Finally, FSWA raises questions about how EPA conducted its cost estimate analysis for compliance with the MSGP and believes that it has grossly underestimated the burdens associated with MSGP compliance.

Response In response to this and other comments, EPA has provided greater clarity about how the cost estimates were derived. The Fact Sheet includes the following explanation: “ Based on estimates provided in prior permits, updated to reflect minor changes to the permit and current dollars, EPA estimates the average annual cost of complying with the 2015 MSGP is around $2,752 for new facilities and $2,199 for existing facilities. The estimated costs of compliance have not changed between proposal and the issuance of the final 2015 MSGP. These numbers were developed by updating previous estimates to 2013 dollars by adjusting for the 10.52% inflation between average private sector hourly rates (which increased from the 2008 MSGP cost analysis from $45.84 per hour to $51.23 per hour). ”

Comment ID 0092.001.0 38 Issue Category: C.1

Author Name: Jeffrey Longsworth Overall Cost Issues

Organization: Barnes & Thornburg LLP on behalf of the Federal Storm Water Association (FSWA)

EPA Cost Analysis EPA developed a "Cost Impact Analysis for the MSGP" that it added to the current draft MSGP docket. EPA concluded that the total cost of compliance on an annualized basis is $2,752 for new dischargers and2015 EPA MSGP Response to Comments June 4, 2015

387 $2,199 for existing dischargers. To FSWA members, E PA's conclusions are greeted with shock and amazement. Many BMPs individually cost more to develop, implement, and maintain than these figures. These amounts do not even cover all of the analytical sample collection, shipping, and laboratory results for some facilities. Some FSWA members have spent well over $100,000 to develop their SWPPP, with the expectation that it will be continuously modified, amended, and reviewed during the MSGP's five year permit term, with major revisions required for the next per mit.

In short, there appears to be a significant disconnect between the cost document and EPA's Fact Sheet. For example, EPA's Fact Sheet explains that EPA expects new discharges to implement appropriate

control mechanisms such that their stormwater disc harges meet water quality standards. While the true meaning of that is unclear and where compliance with water quality standards should be measured, the requirement appears to be a significant one that many believe would require a significant investment in stormwater controls and BMPs. However, EPA's cost document "assumes no additional cost of compliance" for this requirement. Cost Document at 5.

This disconnect is pervasive throughout the cost analysis and FSWA recommends that EPA's economists take a more thorough review of total costs of compliance for the MSGP. FSWA members would be happy to work with EPA to provide real

- world costs of compliance, if the Agency believes that would be helpful.

Response See response to comment 0078.001.006 and 0060.001.006. EPA also clarifies that the previous 2008 permit required new (and existing) discharges to meet water quality standards, so there is no new additional burden or cost associated with that requirement.

Comment ID 0093.001.004 Issue Categor y: C.1

Author Name: Amanda Aspatore Overall Cost Issues

Organization: National Mining Association (NMA)

•EPA has not sufficiently analyzed the potential costs of compliance and economic impacts. In particular, EPA has not considered the costs of mandating mining facilities to comply with requirements from the 2012 CGP that were developed without consideration of the unique nature of mining activities and related stormwater discharges.

Response See response to comment 0078.001.006, 0060.001.006, and the mining essay.

Comment ID 0093.001.011 Issue Category: C.1

Author Name: Amanda Aspatore Overall Cost Issues

Organization: National Mining Association (NMA)

V. EPA Has Not Adequately Considered Compliance Costs for the Mining Industries EPA's compliance cost projections associated with the proposed MSGP are incomplete and inadequate. The increased costs on a per

- facility basis would be enormous in light of, in particular, the new requirements in Sectors G, H, and J that EPA has adopted from the 2012 CGP and the proposed CERCLA site provisions discussed above. EPA's Cost Impact Analysis for the MSGP does not include any estimates for the new Part 8 requirements apart from a cursory explanation of why the new metals

benchmark values for sali ne waters would not result in any additional costs. EPA does not even attempt to analyze the costs of full compliance by mining facilities with the 2012 CGP requirements that EPA2015 EPA MSGP Response to Comments June 4, 2015

388 proposes to impose. EPA's lack of analysis is puzzling. This proposal is not a mere renewal of the 2008 MSGP. It dramatically expands regulatory burdens, and should EPA proceed as proposed, entire new cost compliance assessments must be conducted and reviewed by the Office of Management and Budget. In particular, the mining industry is comprised of many small business entities, especially in the mineral exploration sector, and the adverse economic impacts on these small business entities must be assessed. EPA must provide support for its assertion that the expected economic impact o n small businesses will be minimal. [FN19] The rulemaking record thus far developed by EPA and made available to the public does not sufficiently demonstrate compliance with the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforc ement Fairness Act.

[FN19] See 78 Fed. Reg. at 59677.

Response See response to comment 0078.001.006, 0060.001.006, and the mining essay. EPA also refers the commenter to the C&D rule economic analysis that documents estimated costs associated with

tech nology- based effluent limits applicable to certain construction activities at mine sites covered under

the MSGP.

Comment ID 0094.001.001 Issue Category: C.1

Author Name: Eric Fry Overall Cost Issues

Organization: Peabody Energy

General: The draft MSGP imposes additional requirements on regulated entities without providing justification for them. The cumulative effect of additional regulatory requirements substantially affects industry and inevitably leads to an increase in product costs and job red uctions.

Response See response to comment 0078.001.006 and 0060.001.006.

Comment ID 0094.001.003 Issue Category: C.1

Author Name: Eric Fry Overall Cost Issues

Organization: Peabody Energy

Additionally, EPA should re

- evaluate the conclusions of its Cost Impact Analysis for the proposed 2013 MSGP. The analysis does not accurately capture the actual economic impact or compliance costs that will stem from the proposed changes to the permit. Further, the analysis does not examine the costs of requiring mining facilities to comply with the requirements of the 20 12 CGP

- a permit not primarily designed for the specificity of the mining sector and associated discharges.

Response See response to comment 0078.001.006, 0060.001.006, and the mining essay.2015 EPA MSGP Response to Comments June 4, 2015

389 

### Issue Category: Analytical Benchmark Monitoring Costs

Comment ID 0022.001.003 Issue Category: C.2

Author Name: Paul Wiegand Analytical Benchmark Monitoring Costs

Organization: National Council for Air and Stream Improvement, Inc. (NCASI)

EPA should also consider that the analytical tests used to measure some of these compounds are expensive, on the order of $1000 per sample per analyte group (e.g., PCBs, dioxin s/furans). Entities that rely on the MSGP for coverage of stormwater discharges do so for the relatively lower cost and greater simplicity relative to obtaining a facility

- specific NPDES permit. Such an expense would greatly reduce the attractiveness of the MSGP. Finally, facilities that test positive for one or more of these ubiquitous PBT substances likely have no practicable control options if atmospheric deposition is shown to be the primary source of the contaminants.

Response See response to comment 0022.001.002.2015 EPA MSGP Response to Comments June 4, 2015

390 

### Issue Category: Galvanizing Industry Form Letter

Comment ID 0025.001.001 Issue Category: Form1

Author Name: James Loveland Galvanizing Industry

Organization: W.H. Maze Company

[See comment letter EPA-HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0026.001.001 Issue Category: Form1

Author Name: Tim Pendley Galvanizing Industry

Organization: AZZ Galvanizing Services

[See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0045.001.001 Issue Category: Form1

Author Name: Craig Bridges Galvanizing Industry

Organization: Moore Quality Galvanizing

[See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0046.001.001 Issue Category: Form1

Author Name: Adam Brown Galvanizing Industry

Organization: Metalplate Galvanizing, L.P.

[See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0048.001.001 Issue Category: Form1

Author Name: Keith Ewing Galvanizing Industry

Organization: The Southern Galvanizing Company2015 EPA MSGP Response to Comments June 4, 2015

391 [See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0049.001.001 Issue Category: Form1

Author Name: Robert Pierce Galvanizing Industry

Organization: Frontier Hot Dip Galvanizing, Inc.

[See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.

Comment ID 0052.001.001 Issue Category: Form1

Author Name: William Taylor Galvanizing Industry

Organization: Valmont Industries

[See comment letter EPA -HQ-OW-2012-0803- 0023. This letter contains language from a mass campaign letter.]

Response See monitoring essay.2015 EPA MSGP Response to Comments June 4, 2015

392 

### Issue Category: Duplicates

Comment ID 0030.001.001 Issue Category: 10

Author Name: William Stilwell Duplicate

Organization: Massachusetts Department of Environmental Protection (MassDEP)

Response This commenter letter is a duplicate and all comments were previously responded to.

Comment ID 0032.001.001 Issue Category: 10

Author Name: Brona Simon Duplicate

Organization: Massachusetts Historical Commission

Response This commenter letter is a duplicate and all comments were previously responded to.

Comment ID 0050.001.001 Issue Category: 10

Author Name: John Myers Duplicate

Organization: Tennessee Valley Authority (TVA)

Response This commenter letter is a duplicate and all comments were previously responded to.

Comment ID 0082.001.003 Issue Category: 10

Author Name: Frederic Andes and Jeffrey Longsworth Duplicate

Organization: Barnes & Thornburg LLP on behalf of the Federal Water Quality Coalition and the Federal Storm Water Association (FSWA)

Response This commenter letter is a duplicate and all comments were previously responded to.

Comment ID 0091

- A1.001.001 Issue Category: 10

Author Name: Jeffrey Miller Duplicate

Organization: Copper Stormwater Benchmark Coalition (CSBC)

Response This commenter letter is a duplicate and all comments were previously responded to.2015 EPA MSGP Response to Comments June 4, 2015

393 

### Issue Category: Reference to Other Letters

Comment ID 0051.001.001 Issue Category: 11

Author Name: John Hopewell & David Darling Reference

Organization: American Coatings Association

1. We support the comments submitted by the Federal StormWater Association (FSWA). [See comment

letter EPA -HQ-OW-2012-0803-0092].

Response EPA has previously responded to the comments supported by the commenter.

Comment ID 0073.001.002 Issue Category: 11

Author Name: Kelly Norton Reference

Organization: Arizona Mining Association (AMA)

[See comment letter EPA -HQ-OW-2012-0803-0093]

AMA agrees with and strongly endorses the comments provided separately by the National Mining Association on this important issue.

Response EPA has previously responded to the comments supported by the commenter.

Comment ID 0078.001.003 Issue Categor y: 11

Author Name: Jerry Call Reference

Organization: American Foundry Society (AFS)

[See comment letter EPA -HQ-OW-2012-0803- 0091] Some of the specific concerns regarding benchmark values are addressed in the comments on the draft MSGP submitted by the Copper Stormwater Benchmark Coalition (CSBC). AFS is a member of the CSBC and a signato ry of those

comments.

Response EPA has previously responded to the comments supported by the commenter.

Comment ID 0082.001.001 Issue Category: 11

Author Name: Frederic Andes and Jeffrey Longsworth Reference

Organization: Barnes & Thornburg LLP on behalf of the Federal Water Quality Coalition and the Federal Storm Water Association (FSWA)

[See comment letter EPA -HQ-OW-2012-0803- 0092]

The Coalition supports the comments as to the Draft Permit that have been filed by the Federal Storm

Water Association ("FSWA"). The FSWA comments are attached to these comments, and are incorporated by reference.2015 EPA MSGP Response to Comments June 4, 2015

394 Response EPA has previously responded to the comments supported by the commenter.

Comment ID 0084.001.008 Issue Category: 11

Author Name: Josep h Gorsuch and Eric Van Genderen Reference

Organization: Copper Development Association (CDA) and the International Zinc Association (IZA)

[See comment letter EPA -HQ-OW-0803- 0062]

In addition to our concerns above, we share concerns raised by others in regards to existing MSGP sampling protocols, benchmark enforceability, and technological achievability of a WQC -based benchmark (CSBC 2013a,b).

Response EPA has previously responded to the comments supported by the commenter.

Comment ID 0087.001.002 Issue Category: 11

Author Name: Kathleen Martin Reference

Organization: Alcoa Inc.

[See comment letter EPA -HQ-OW-2012-0803- 0092]

1. Alcoa Supports and Endorses the Comments of the Federal Storm Water Association Alcoa is a member of the Federal Storm Water Association (FSWA) and participated in the development of their comments. We support their comments, and endorse them.

Respo nse EPA has previously responded to the comments supported by the commenter.

Comment ID 0090.001.001 Issue Category: 11

Author Name: Henry Graham, Jr. Reference

Organization: Louisiana Chemical Association

[See comment EPA -HQ-OW-2012-0803- 0092]

LCA hereby adopts and incorporates by reference those comments on the draft 2013 NPDES MSGP made by (a) members of LCA; (b) Federal StormWater Association; (c) American Chemistry Council; (d) members of American Chemistry Council; (e) American Petroleum Institute; (0 Louisiana Mid -Continent Oil and Gas Association ("LMOGA"); and (g) members of LMOGA, to the extent such comments are not inconsistent with the comments made herein by LCA.

Response EPA has previously responded to the comments supported by the commenter.