When it Rains it Pours: Be Aware of Stormwater Discharge Permit Requirements

Four Massachusetts[1] waste handlers recently learned that when it rains, it pours, when they agreed to pay the Environmental Protection Agency (“EPA”) a total of $170,000 in penalties for alleged stormwater discharges in violation of the federal Clean Water Act (CWA).[2] According to their Consent Agreement and Final Order (“CAFO”) with the EPA, the handlers failed to obtain the required stormwater discharge permits from the EPA. This post aims to alert similar companies to the need to evaluate whether they are subject to permit requirements and, if so, provide guidance on obtaining such permits to avoid similar enforcement action.

Under section 1311 of the CWA, the “discharge of any pollutant[3] by any person shall be unlawful.”[4] Section 1342 (a) of the Act authorized EPA to establish a permit program known as the National Pollution Discharge Elimination System (“NPDES”) to allow discharges of pollutants.[5] However, Section 1342 (p) provided that the EPA could not require a permit for “discharges composed entirely of storm water” except for certain exceptions. One of those exceptions was for “discharges associated with industrial activity.”[6]

The EPA’s NPDES regulations define “storm water discharge associated with industrial activity” as “the discharge from any conveyance that is used for collecting and conveying storm water, and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant.” [7] Although the regulation applies only to “industrial plants,” it lists eleven “categories of facilities” deemed associated with industrial activity, some of which would not ordinarily be considered “industrial plants” that must nevertheless obtain NPDES stormwater discharge permits.[8] Relevant to the EPA’s enforcement in this case, the regulation specifically includes the following categories of facilities:

(vi) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including but limited to those classified as Standard Industrial Classification 5015 and 5093.

(vii) Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171, which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of this section are associated with industrial activity.

The regulation casts a wide net over operations at these categories of facilities that are “associated with industrial activities,” including, for example, “immediate access roads and rail lines,” “material handling sites,” and “sites used for the storage and maintenance of material handling equipment.” [9] However, “the term excludes areas located on plant lands separate from the plant’s industrial activities, such as office buildings and accompanying parking lots, as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.”[10]

The CAFO states that the four Massachusetts waste handlers self-identified their facilities as having SIC codes that fall in one of the categories of facilities listed in the regulation (specifically SIC codes 5093, 4212, and 4011). As noted, the waste handlers failed to file the required EPA documentation (a Notice of Intent or “NOI”) to be covered by the General Permit[11] that EPA had made available for such facilities.[12] It appears from the CAFO that upon becoming aware of EPA’s enforcement, each targeted handler filed such a Notice of Intent to come into compliance. [13]

Although not the case here, in addition to the EPA itself, not-for-profit groups, Massachusetts regulators, and the Office of the Attorney General regularly scour the EPA’s databases for categories of industrial operations to identify individual companies that are likely out of compliance and bring citizen claims for enforcement. To avoid this outcome, companies should evaluate their operations to determine if they have discharges associated with industrial activity. If so, environmental counsel may help evaluate the legal requirements. Such counsel can assist in engaging a consultant with NPDES experience to evaluate the operation and determine whether stormwater is discharging from areas associated with industrial activity into navigable waters. Experienced consultants can also describe and estimate the effort and expense required for permit compliance, such as preparing the required Stormwater Pollution Prevention Plan (“SWPPP”), monitoring, reporting, and taking steps to mitigate the discharge of pollutants in stormwater. After completing this evaluation, counsel can work with the client and consultant to determine the next best steps to come into compliance and reduce the risk of enforcement.

[1] This post focuses on Massachusetts waste handlers because in Massachusetts, the EPA administers and enforces the National Pollution Discharge Elimination System (“NPDES”) under the Clean Water Act. The EPA has authorized all states other than Massachusetts, New Hampshire, and New Mexico to administer the NPDES program.
[2] As reported by Waste News on December 12, 2025, Massachusetts waste companies to pay $170K stormwater penalty | Waste Dive
[3]“Discharge of a pollutant” includes “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). “Point source” includes “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7).
[4] 33 U.S.C. § 1311(a).
[5] 33 U.S.C. § 1342 (a).
[6] 33 U.S.C. § 1342 (p).
[7] 40 C.F.R. § 122.26(b)(14).
[8] 40 C.F.R. § 122.26(b)(14).
[9] The regulation states that: “for the categories of industries identified in this section, the term includes, but is not limited stormwater discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process waste waters; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to stormwater. Material handling activities include storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, by-product, or waste product. 40 C.F.R. § 122.26(b)(14).
[10] Id.
[11] The EPA has adopted a “General Permit” for stormwater discharges from facilities whose SIC codes fall within the General Permit in states like Massachusetts which are not authorized to implement the NPDES program. On January 15, 2021, EPA reissued the NPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (the “2021 MSGP”). 86 Fed. Reg. 10269 (Feb. 19, 2021). The current General Permit will expire on February 28, 2026 but will be administratively continued pending EPA’s issuance of a new General Permit. The proposed new General Permit can be accessed here.
[12]Consistent with the categories of facilities deemed by the regulations to be associated with industrial activity, the 2021 MSGP, in Part 8, includes sector-specific requirements for certain industrial activities that track the categories and SIC codes covered by the regulation. Scrap Recycling and Waste Recycling facilities fall within Sector N (there is separate sub-sector N-1 for facilities handling only source separated recyclables) and Land Transportation falls within Sector P.
[13] Under the 2021 General Permit, a facility discharging stormwater associated with industrial activity is required to submit a Notice of Intent (“NOI”) to be covered under the permit; prepare and implement a Stormwater Pollution Prevention Plan (“SWPPP”); conduct inspections, monitoring, sampling, reporting; and meet other eligibility requirements.