EPA's Numbers Are Worth Watching
It appears that the Obama EPA believes that it's pretty hard to measure something if you don't put a number on it. We're seeing this philosophy play out in the area of imposing discharge limits, where it has become clear that EPA prefers numeric standards over narrative or descriptive standards.
For example, for more than fifteen years, stormwater discharge permitting from construction sites has relied on the use of “best management practices” or the installation of barriers to slow down runoff (such as silt fences or detention basins). When this was properly done, the stormwater regulations were routinely viewed as being satisfied. That has now changed. EPA, for the first time, has imposed a discharge standard of 280 NTUs on stormwater leaving the construction site. The proposed numeric standard was going to be 13 NTUs, but, after participants at public hearings pointed out that this was virtually impossible to meet, EPA switched to 280 NTUs.
Similarly, EPA has, for the first time, implemented a numeric standard for suspended solids that may enter streams from mountaintop mining sites. The solids will be measured through stream conductivity, with a cap of 500 uS/cm. According to EPA Administrator Lisa Jackson, there are “no or very few valley fields that are going to meet this standard.” EPA is taking public comment on this proposed standard until December 1, 2010 but has made it effective immediately.
Moving to air regulation, EPA has finalized a greenhouse gas emission limit from cars and light trucks at an average of 250 grams per mile of carbon dioxide in 2016. This would be the first nation-wide greenhouse gas emission limit to be adopted by the United States.
For anyone who thinks that this trend is going unnoticed by those who watch this sort of thing, I would point out that Sierra Club has renewed its request to EPA to set, for the first time, numeric water quality standards for nitrogen and phosphorus. Nitrogen and phosphorus are the primary pollutants in the dead zone found in the Gulf of Mexico. Should EPA be inclined to impose such a numeric standard, and if recent attempts to regulate non-point sources are successful, the change could have an immediate impact on farming, which, while being the primary source of income in many states, is also the primary source of nitrogen and phosphorus contamination in lakes, streams and rivers.
Businesses should take note of this direction. Numeric standards can be very difficult on regulated entities. These standards are much easier to enforce than descriptive or narrative standards and they eliminate all discussions of what is fair or reasonable or necessary based on differences in circumstances or locales. Except in the actual creation of the standard, there is no cost/benefit analysis employed. The only question is whether the discharge of the regulated substance is above or below the regulated level, and where that number is put can determine whether you are in, or out of, business.
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