UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION 2 Caribbean Environmental Protection Division City View Plaza II, #48 Carr 165 Ste 7000 Guaynabo, Puerto Rico 00968-8073
122117
Re:
Guidance and Temporary Requirements
for Post Hurricanes Recovery Efforts
Applicable to Permittees with Coverage under the NPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity in Puerto Rico
Dear MSGP Permittee:
The purpose of this Notice is to advise permittees with coverage under the 2015 National Pollutant Discharge
Elimination
System (NPDES)
Multi-Sector
General Permit for Stormwater
Discharges
Associated with Industrial Activity (MSGP), located in the Commonwealth of Puerto Rico, that as a result of Hurricanes Irma and Maria (Hurricanes), the United States Environmental Protection Agency, Region 2 (EP A), is hereby providing temporary relief to parties who are unable to meet certain requirements and conditions included in the MSGP. These Hurricanes caused, among other things, unprecedented damage and impairments to infrastructure, telecommunications
(i.e., internet capability), electrical power services,
potable water distribution, and reduction in labor force. The EPA is the agency with the authority to administer the federal NPDES program within the Commonwealth enforcement regulations.
of Puerto Rico. EPA maintains
authority for violations of the federal Clean Water Act (CWA) and NPDES program I
1 Section 402 of the CWA, 33 U.S.c. ยง 1342, defines the National Pollutant program for, among other things, issuing and enforcing discharge permits. 1342(a)(l), provides that "the Administrator may, after opportunity for public pollutant...upon condition that such discharge will meet ... such requirements to carry out the provisions of the [CWA]."
Discharge Elimination System as the national Section 402(a)(l) of the CWA, 33 U.S.c. ยง hearing, issue a permit for the discharge of any as the Administrator determines are necessary
Guidance and Temporary Requirements for Post Hurricanes Efforts Page 1 of9
TO WHOM THIS NOTICE APPLIES:
This Notice applies to permittees with coverage under the MSGP. The EPA expects that permittees will continue to follow and comply with the MSGP requirements (i.e. implementation of control measures) and conditions (i.e. performance of inspections and corrective actions) to the fullest extent practicable, and will continue to keep those records (i.e. inspection reports, stormwater pollution prevention plan) that are necessary to satisfy the record-keeping requirements of the MSGP. Permittees, to the best of their ability, are still expected to submit records, as required by the MSGP, to EPA and the Environmental Quality Board (EQB) of Puerto Rico, when applicable, using whatever services (i.e. mail, hand-delivery, electronic mail) are available. Permittees should have taken, and should continue to take, all reasonable steps to minimize and prevent any discharge of pollutants which had or has a reasonable likelihood of adversely affecting human health or the environment.
GENERAL REQUIREMENTS:
In each instance where the permittee determines that it is necessary to submit information or required documents (as set forth below) later than the date set forth in the MSGP, such submission must include a certification that the late submission is a direct consequence of the Hurricanes, as well as an explanation of why the requirement could not be met. All delayed submissions made pursuant to this Notice shall be in English and signed by an authorized official, and include the following certification:
"I certify under penalty of law that this document and all attachments are submitted late or after its due date because post-Hurricane conditions made it impracticable or unfeasible to meet the Permit requirements, notwithstanding
having made every good-faith effort to
meet such Permit deadlines. These documents were prepared under my direction or supervision. The information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations."
Facilities Covered under the MSGP Guidance and Temporary Requirements for Post Hurricanes Efforts Page 2 of9
For those MSGP requirements that were not met because of the Hurricanes, permittees must submit to EP A a detailed description of the MSGP requirement as well as a detailed justification
of why the
requirement was not met.
This Notice should not be construed as a no-action assurance by EP A. EPA retains its enforcement authority or any other authority pursuant to the CW A, which EP A shall exercise solely at its discretion, as provided for the CW A.
CONTROL
MEASURES
AND BEST MANAGEMENT
PRACTICES:
EP A recognizes that due to the extreme wind and flooding conditions caused by the Hurricanes, the NPDES permitted facilities could have suffered direct and/or indirect damage to Best Management Practices (BMPs), such as structural controls, which are required to be implemented,
inspected and
maintained, to satisfy the requirements of Part 2 of the MSGP. In those instances, the permittee must evaluate and document the damage, and repair and/or replace the BMP in accordance with good engineering practices and manufacturer's specifications. The documentation and implementation schedule must follow the requirements of the corrective actions requirements in Part 4.3 of the MSGP, except that permittees are allowed repair and/or replace the BMP by June 30, 2018.
In the situation in which the permittee will not be able to repair and/or replace the BMP by June 30, 2018, the permittee must send a notice to EP A describing the BMP in need of repair and/or replacement and an implementation schedule. EP A expects that the implementation schedule will not exceed December 31, 2018. In those case in which the implementation schedule will exceed December 31, 2018, the permittee must contact EP A for further guidance.
EMPLOYEE
TRAINING:
For those permittee employees that were and are required to be trained in accordance with Part 2.1.2.8 of the MSGP and as provided for in the Stormwater Pollution Prevention Plan (SWPPP) developed for the permittee's facility pursuant to Part 5 of the MSGP during the period from September 6, 2017 to December
Facilities Covered under the MSGP Guidance and Temporary Requirements for Post Hurricanes Efforts Page 3 of9
2018, the permittee is allowed to conduct and document the employee training by April 30, 2018. A copy of the training records must be included in the SWPPP developed for the permittee facility.
INSPECTIONS:
Part 3 of the MSGP requires permittees to conduct and document routine facility inspections and quarterly visual assessment of stormwater discharges, which must be conducted at least on a quarterly basis. The Hurricanes posed unsafe conditions to thousands of structures in Puerto Rico, and precluded many permittees from safely operating and managing their facilities. Additionally, thousands of employees were unable to travel to their respective work locations due unsafe roads and bridges.
For those permittees who were unable and will not be able to conduct these inspections in accordance with Part 3 of the MSGP for the September 6, 2017 to March 31, 2018 period, the permittee must document the reasons why the inspection was not performed and retain the document in accordance with the record keeping requirements in Part 8.8 of the MSGP.
ANNUAL REPORT:
Part 7.5 of the MSGP requires permittees to submit an annual report to EPA electronically, as required in Part 7.2 of the MSGP, by January 30th of each year. The annual report must contain information generated from the past calendar year. This MSGP requirement is directly dependent on the performance and documentation of the inspection requirements in Part 3 of the MSGP. Based on the MSGP requirements as well as the relief regarding inspections set forth in this Notice above, EP A is extending the requirement to submit the annual report from January 30, 2018 to April 30, 2018. The annual report must include the information obtained from the inspections performed from January 1,2017 to December 31, 2017. In the event that the permittee is precluded from submitting the annual report electronically by April 30, 2018, EPA is allowing the permittee to submit the annual report to EP A in paper form, using the form provided in Appendix I of the MSGP, by April 30, 2018. In this case, the permittee must provide justification in a cover letter to the annual report form of its inability to submit the annual report electronically. Information about the address for the submittal of the annual report in paper form is provided in Part 7.9 of the MSGP.
Guidance
Facilities Covered under the MSGP and Temporary Requirements for Post Hurricanes Efforts Page 4 of9
MONITORING
AND SAMPLING:
Sampling and monitoring of stormwater runoff may have been, or may continue to be, infeasible or impracticable due to, among other circumstances, lack of human resources, damage to sampling structures and equipment, inaccessibility
to areas as a result of winds and flooding, and inaccessibility
to or
unavailability of laboratory services. In those instances in which the permittee did not or will not be able to perform benchmark monitoring or impaired waters monitoring pursuant to the requirements
and
conditions of Part 6 of the MSGP, for the period from September 6,2017 to March 31,2018, the permittee must so indicate in the submittal of the data through NetDMR system a "NODI" code - "K" (Natural Disaster), by April 28, 2018. In any of those instances described above, the permit holder must provide a detailed justification web/action/login.
of the code used. NetDMR is found at https://cdxnodengn.epa.gov/oeca-netdmr-
In the event that the permittee is precluded from accessing NetDMR, EPA will allow
the permittee to submit the MSGP Industrial Discharge Monitoring Report (DMR) Form (EPA Form 6100-29) provided in Appendix M of the MSGP for the period from September 6, 2017 to March 31, 2018, by April 28, 2018. In this case, the permittee must provide justification in a cover letter to the DMR for its inability to access NetDMR. Information about the address for the submittal of the DMR is provided in Part 7.9 of the MSGP.
Beginning on April 1, 2018, the permittee must reinitiate the benchmark monitoring and impaired waters monitoring in accordance with the requirements and conditions of Part 6 of the MSGP until compliance with the requirement is achieved pursuant to the MSGP requirements.
Regarding effluent limitations monitoring, Part 6.2.2 of the MSGP identifies those facilities subject to effluent limitations. The permittee must contact EPA for further guidance concerning monitoring and reporting for the September 6, 2017 to March 31, 2018 period. Beginning on April 1, 2018, permittees subject to effluent limitations monitoring must reinitiate monitoring and reporting in accordance with the requirements
and conditions of Parts 6.2.2 and 7.6 of the MSGP. The following table includes the
regulated industries subject to storm water effluent limitations guidelines covered in the MSGP:
Guidance
Facilities Covered under the MSGP and Temporary Requirements for Post Hurricanes Efforts Page 5 of9
REGULATED ACfIVITY
40 CFRPART &
EFFLUENT
SUBPART
LIMIT
Discharges resulting from spray down or intentional wetting of logs at wet deck storage areas
Part 429, Subpart I
See Part 8.A.7 of the MSGP
Runoff from phosphate fertilizer manufacturing facilities that comes into contact with any raw materials, finished product, by-products or waste products (SIC 2874)
Part 418, Subpart A
See Part 8.C.4 of the MSGP
Runoff from asphalt emulsion facilities
Part 443, Subpart A
See Part 8.D.4 of the MSGP
Runoff from material storage piles at cement manufacturing facilities
Part 411, Subpart C
See Part 8.E.5 of the MSGP
Mine dewatering discharges at crushed stone, construction sand and gravel, or industrial sand mining facilities
Part 436, Subparts B, C, or D
See Part 8.J.9 of the MSGP
Runoff from hazardous waste landfills
Part 445, Subpart A
See Part 8.K.6 of the MSGP
Runoff from non-hazardous waste landfills
Part 445, Subpart B
See Part 8.L.l 0 of the MSGP
Runoff from coal storage piles at steam electric generating facilities
Part 423
See Part 8.0.8 ofthe MSGP
REPORTING
DATA AND OTHER INFORMATION:
Presently, the submittal of data and other information to EPA and EQB might be impractical and/or infeasible due to, among other reasons, non-existent or poor internet services, wireless communication, landline phone communication, and mail or courier services.
In consideration of the above, EPA is providing temporary relief with regard to the submittal of data, reports and other information not addressed above, due between September 6, 2017 and March 31, 2018. Any data, reports, or other information that was required to be submitted within that time frame may now be submitted until April 28, 2018. Facilities Covered under the MSG P Guidance and Temporary Requirements for Post Hurricanes Efforts Page 6 of9
Beginning on April 1, 2018, and thereafter, the permittee must submit the data and information according to the requirements and conditions of the MSGP. In the event that the permittee finds that after April 1, 2018, that for good reason, it is unable to submit the data and information as required by the MSGP, the permittee must contact EP A for further guidance.
RECORD KEEPING:
Part 7.8 and Appendix B.15 ofthe MSGP establish the record keeping requirements that permittees must follow. EPA recognizes that records could have been lost and/or damaged due to the Hurricanes. In those instances in which the permittee suffered record loss and/or damages, the permittee must perform an evaluation of the records required to be maintained and document any loss or damage in the SWPPP developed for the permittee's facility. This evaluation and documentation must be completed by March 31,2018.
TEMPORARY OR PERMANENT CLOSURE OF REGULATED FACILITIES:
EP A is aware that many facilities had been closed or became inactive and unstaffed as a consequence of the negative impacts of the Hurricanes. Part 1.3 of the MSGP established the Notice of Termination (NOT) conditions and submittal deadline.
The EP A is extending the electronic NOT submittal from 30 to 180
days. In the event that the permittee is precluded from submitting the NOT electronically, EPA is allowing the permittee to submit the NOT to EP A in paper form using the form provided in Appendix H of the MSGP. In this case, the permittee must provide justification in a cover letter to the NOT form explaining its inability to submit the NOT electronically. Information about the address for the submittal of the NOT in paper form is provided in Part 7.9 of the MSGP.
When the permittee opts to keep its facility inactive and unstaffed, the permittee is encouraged to read and understand the MSGP requirement pertaining to inactive and unstaffed facilities, and to contact EP A for further guidance, particularly regarding the modification notification thru the EPA eReporting tool (NeT). The permittee must keep documentation to support the claim that the facility has changed its status from active to inactive and unstaffed with respect to the requirements to conduct routine facility inspections Facilities Covered under the MSGP Guidance and Temporary Requirements for Post Hurricanes Efforts Page 7 of9
(see Part 3.1.1), quarterly visual assessments (see Part 3.2.3), benchmark monitoring (see Part 6.2.1.3), and/or impaired water monitoring (see Part 6.2.4.2).
BY-PASS AND UPSET:
The EPA advises the permittee that the NPDES regulations at 40 C.F.R. §§ 122.41(m) and (n), as well as the MSGP, provide for "bypass" and "upset" conditions. The permit holder must be aware of these regulatory
and permitting
requirements,
regulations and permit requirements.
and submit, where applicable,
notices conforming
to the
The EPA will be accepting complete and accurate notices and
notifications concerning bypass and upset by February 15,2018.
OTHER PERMIT
CONDITIONS
AND REQUIREMENTS:
In the event that a permittee did not meet or will not meet a condition or requirement of the MSGP between September 6, 2017 and March 31, 2018, the permittee must send to EP A a notice in accordance with 40 C.F.R. § 122.41(1)(7) and the MSGP no later than April 15, 2018. In those instances, or in the situation in which the permittee will not meet a condition or requirement of the MSGP beginning on April 1,2018, the permittee must send a notice to EPA according to 40 C.F.R. § 122.41(1)(2).
NPDES PERMIT HOLDERS
SUBJECT TO ENFORCEMENT
ACTIONS UNDER SECTION 309
OF THE CWA, 33 U.S.c. § 1319:
Certain permit holders are currently subject to compliance and enforcement actions that incorporate compliance schedules and "Force Majeure" conditions. Those permit holders must be aware of the "Force Majeure" requirements in the enforcement documents (i.e., administrative order on consent, Consent Decrees), and submit required notifications in accordance with the requirements of the actions. In those instances in which the permit holder was unable to submit a force majeure notice in accordance with the requirement of the action, the permit holder must contact Jose A. Rivera, BSCE, Team Leader, Clean Water Act Team, at (787) 977-5842, or through electronic mail at rivera.jose@epa.gov,
for further
discussion.
Guidance
Facilities Covered under the MSGP and Temporary Requirements for Post Hurricanes Efforts Page 8 of9
RESERVATION
Notwithstanding
OF RIGHT:
the Guidance and Temporary Requirements described above, EPA reserves its right to
exercise enforcement authorities where appropriate and pursuant to the provisions of the CW A.
FOR QUESTIONS, GUIDANCE AND COMMUNICATION:
If you have any questions concerning the above, please contact Jose A. Rivera, BSCE, Team Leader, Clean Water Act Team, at (787) 977-5842, through electronic mail at rivera.jose@epa.gov,
or visit the
EPA's Caribbean Environmental Protection Division office located at City View Plaza, Torre II, Suite 7000, #48 Carretera 165, Guaynabo, Puerto Rico. More information about the MSGP and the storm water discharges
from industrial
facilities
is found at https://www.epa.gov/npdes/stormwater-discharges-
industrial-activities. Sincerely,
e-~ .\o. .
Carmen R. Guerrero Perez Director Caribbean Environmental Protection Division
Facilities Covered under the MSGP Guidance and Temporary Requirements for Post Hurricanes Efforts Page 9 of9
I