Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

EPA seems to have had a problem with a fundamental lesson we all learn by fifth grade:  Do your homework.

On November 23, 2009, EPA imposed new stormwater discharge rules for construction sites. For the first time, a numeric turbidity limit of 280 NTUs would be imposed on the discharge from these sites. The cost of compliance, according to the National Home Builders Association and Small Business Administration, would exceed $10 billion dollars. NAHB promptly filed suit.

The matter is now before the U.S. Court of Appeals for the 7th Circuit.  As is customary, the Department of Justice is representing the EPA.  According to NHBA, in preparing the case, DOJ requested that its client, EPA, "defend the numeric limit."  EPA apparently then admitted to several flaws and improper interpretation of the data.  Based on this information and in a very unusual move, the DOJ filed a motion with the Court to vacate that part of its final rule relating to the average daily turbidity level of 280 NTUs. EPA requested a “partial vacature of the final rule and remand of the record.” In the words of DOJ:

Based on EPA’s examination of the dataset underlying the 280-NTU limit it adopted, the Agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280-NTU effluent limit. EPA therefore wishes to re-examine that number through a narrowly-tailored notice-and-comment rulemaking and, if necessary, revise that portion of the limit before proceeding with its defense of the rule.

DOJ also asked the Court to hold the remainder of the case in abeyance for 18 months.  The motion was granted by the Court on August 24, 2010.  As a result, the 280 NTU rule has been stricken, and the remainder of the rule is still in force and effect.  This means that while additional regulation in the form of increased "best management practices" will be enforced (which several states had already imposed), there will be no numeric turbidity limit on the stormwater discharge.

So who really benefits from EPA’s action? It seems to me there are two groups. First, it is very good news for the building industry.  The 280 NTU rule would have imposed huge additional costs with marginal benefits during the industry's darkest hour.  Hopefully, EPA will do a more thorough review its second time around. 

The second group which is benefited is the U.S. Chamber of Commerce (and the other entities which have challenged EPA on its Endangerment Finding). As we all know, the U.S. Chamber of Commerce is contending that the EPA is wrong on finding that green-house gases present a substantial risk of harm to human health and welfare. The Chamber contends that the science simply does not support EPA. EPA contends that the science is overwhelming and that the Chamber is wrong. EPA’s current admission that it may have misinterpreted the data for imposing the 280 NTU limit, significantly undermines EPA's credibility, particularly from a public relations perspective (in an election year).

In conducting rulemaking, EPA must be right (or at least defensible) on the science and its interpretation of scientific data -- every time. Its rules can impose millions of dollars in compliance costs and penalties. Challenging an EPA determination is time consuming and extremely expensive. The Agency has the time, funds and duty to make sure that their regulations are supported. When EPA finds it necessary to file a motion in a pending action which essentially admits that it did not do sufficient due diligence to determine if its review was correct, the impact to its credibility is huge. Some people might start asking themselves if EPA was wrong about its interpretation of the data on something as significant as the stormwater discharge rules, could it also be wrong about the science regarding climate change. Or what about the science supporting the new lead paint rules? Or even what about . . . . ? EPA has all the time in the world to pass its rules and it will deflect most challenges if it consistently, methodically and verifiably bases the rules on sound science and takes the time to review and properly interpret the data. As soon as it concedes that it has not done its homework, there are all sorts of people who will be happy to take it to school.

UPDATE:  On  September 20, 2010 the Seventh Circuit issued an Order, in response to a Motion for Clarification or Reconsideration, which  will cause some confusion for the states.  This Order failed to specifically vacate the 280 NTU limit.  Therefore, until further action is taken at the District Court or by EPA, the limit still remains as part of the rule.  Presumably EPA intends to change the NTU limit in the future, but for states that are working to modify their rules to be in compliance, this presents a dilemma. 

FURTHER UPDATE:  On November 1, 2010, EPA issued a final rule to stay the numeric limitation of 280 NTU for the "Construction and Development Effluent Limitation Guideline."  If EPA receives no adverse comments, the rule will become effective in 60 days, thus eliminating the dilemma for the states that are in the process of changing their rules.  EPA is planning to revisit the numeric limit and propose a final rule by May 30, 2011.

RELATED POSTS: New Stormwater Regulation Rain Down On Developers

                             The Train's A-Comin': More Stormwater Rule Changes

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Whether we like it or not, we are a dirty society.

Every day, millions of cars drip hazardous materials onto various streets and parking lots and emit hazardous fumes from tail pipes. Every day we pave roads and roof tops with tar that is full of hazardous materials. Every day factories, industrial sites and machinery send out clouds of hazardous smoke into the atmosphere. As luck, and nature, would have it, rain then falls and washes them all away. Since 1990, this act of nature has been regulated.  Two recent cases indicate that stormwater regulation may apply to many more sites than previously thought.

In Northwest Environmental Defense Center v. Brown, the 9th Circuit Court of Appeals held that the discharge of pollutants from ditches, culverts and channels that collect storm water runoff from logging roads required the issuance of an NPDES permit. Logging was determined to be an “industrial activity” and, therefore the roads and their drainage systems leading to and from that activity constituted a point source that required the issuance of a permit.

In another case, United States v. Washington State Department of Transportation, the District Court for the Western District of Washington, ruling on cross motions for summary judgment,  was asked to find that the Washington DOT was liable for designing state highways with storm water collection and drainage structures which allowed hazardous substances, particularly phosphorus, to be deposited into Commencement Bay, a listed Superfund site. EPA argued that the Washington DOT “arranged for disposal (of a hazardous substance) by designing, constructing and operating drainage systems whose sole function was to collect highway runoff and dispose of it into nearby water-bodies."  The Court was persuaded:

WSDOT arranged for disposal of hazardous substances. It is undisputed that WSDOT designed the drainage systems at issue. Designing is an action directed to a specific purpose. The purpose was to discharge the highway runoff into the environment. WSDOT had knowledge that the runoff contained hazardous substances and that there was an actual release of the hazardous substance into the environment. WSDOT argues that it did not have control over the hazardous substances. However, it did have control over how the collected runoff was disposed of. WSDOT did design the drainage system and, as noted by the U.S., WSDOT has the ability to redirect, contain, or treat its contaminated runoff. For the foregoing reasons, WSDOT is an arranger under 42 U.S.C. § 9607(a)(3).

While WSDOT argued that the runoff was a federally permitted release under its NPDES permit pursuant to 42 U.S.C. 9607(j), the Court held that there was a question of fact on whether the WSDOT was in compliance with the permit and whether there was a release outside the scope of the permit.

Based on these two cases, the scope of storm water regulation seems to have dramatically increased. All haul roads and streets within an industrial complex would require an NPDES permit; tar covered roofs having storm water runoff directed to ditches and into streams would have a similar requirement; and asphalt-based highways, streets and parking lots that could ever be near a Superfund site now or in the future, would be similarly situated.  It should be noted that these cases are consistent with EPA's goal of considerably more stormwater regulation in the near future. 

Is it just me or is the regulation of Mother Nature getting a bit out of hand? Are we really going to compel these kinds of regulatory costs without seeing what kind of incremental impact is taking place?  For better or worse, it looks like that's where we are going.  I guess all the regulated community can do is to pray for dry weather. 

RELATED POSTS:  The Train's A-Comin': More Stormwater Rule Changes

                              Applying Stormwater Rules To Existing Facilities

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On August 3, 2010, several environmental groups, led by the Center for Biological Diversity, filed a petition with EPA seeking a ruling from the Agency to ban the use of lead in hunting ammunition and fishing tackle.  As noted by the petition, EPA has authority under the Toxic Substances Control Act (“TSCA”) to regulate chemical substances that “present an unreasonable risk of injury to health or the environment.” (15 U.S.C. § 2601). 

EPA has declared that lead is a toxic substance and has regulated it in other instances, most recently with regard to lead-based paint.  According to the CBD petition (page 3), requiring the use of non-toxic shot gun shot, bullets and fishing gear can be accomplished by having EPA prohibit the manufacture, processing or distribution in commerce of the chemical substance for a particular use as allowed under 15 U.S.C. § 2605(a)(2)(A)(i).

In setting out its case, the petitioners contend that there are hundreds of scientific studies showing the danger of lead in the environment for both wildlife and human health.  Interestingly, the petitioners acknowledge that EPA is specifically prohibited from regulating ammunition or firearms under TSCA (petition at page 3), but they contend that lead can be banned from ammunition and lures if there are alternatives that are commercially available that are non-toxic:

The petitioners have waited until non-toxic alternatives have become available to submit this petition in an effort to clearly indicate that this petition is not an attempt to regulate ammunition or fire arms.

I have trouble seeing how the fact that there are alternatives means it is not an "attempt to regulate ammunition."  It seems to me that it's an "attempt to regulate ammunition via alternatives," but maybe that's just the nit-picker in me.  In any event, a quick response was made by sporting groups. The National Shooting Sports Foundation, Inc., through President Steve Sanetti, stated:

There is simply no scientific evidence that the use of traditional ammunition is having an adverse impact on wildlife populations that would require restricting or banning the use of traditional ammunition beyond current limitations, such as the scientifically based restriction on water fowl hunting.

In support he cites the fact that the number of breeding pairs of bald eagles in the United States increased 724% between 1981 and 2006.

Further, fishing proponents have objected on the basis that the cost of reasonable alternatives are three to ten times as expensive as their lead counterparts.  Objection has also been made on the grounds that there is very little evidence that lead shot or lead lures have caused human health issues.

EPA has 90 days to issue its ruling either accepting or rejecting the petition.  If it is accepted, there will be an opportunity for public comment. While EPA received little opposition to its lead paint rules and virtually no opposition to phasing out the use of lead wheel weights for balancing car tires, this new proposal is different – these are hunters and fishers. For these groups, when you mess with ammunition and lures, you're messing with religion (or, at the very least, a commandment). 

I think that this might be an interesting debate to watch.

UPDATE:  It appears that EPA has decided not to consider a lead ban for bullets, but lead fishing sinkers are still at risk.  The fisher-people of the country have until September 15th to voice their opposition, or switch to a more innovative form of fishing.   
 

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As everyone expected, multiple challenges were made when EPA finalized its "endangerment finding" -- the determination that greenhouse gases presented a substantial risk to human health and welfare.   The U.S. Chamber of Commerce led the charge in asking EPA  to reconsider its finding.  Not surprisingly,  EPA denied the petitions. 

While the denial was not unexpected, the vigor of the response may have come as a bit of a surprise to some.  In issuing its denial, EPA:

• Put out a press release that not only said that "climate science is credible, compelling, and growing stronger," but that deniers should "join with the vast majority of American people who want to see more green jobs, more clean energy innovation and an end to the oil addiction that pollutes our planet and jeopardizes our national security;"
• Issued a 217 page decision that provided a thorough explanation of each point needed to support its finding;
• Set out, in 366 pages, an analysis of the points raised by the objectors with detailed responses to each point;
• Published a "Fact Sheet" and a recitation of purported  "Myths v. Facts" that lacked only a discussion of the deniers' questionable ancestry in their critique.

In short, EPA fired both barrels and the result is that it will be very difficult for any court to reverse the finding.

So where to the objectors go from here?  On to court, of course.  At least five of the petitioners have already said that they plan to appeal. The Chamber has said:

We are deeply disappointed with EPA's failure to reconsider its flawed decision to regulate greenhouse gases under the Clean Air Act.  We intend to appeal the ruling.

While the decision to appeal is not surprising, the question is whether it is prudent.

The 60-vote Senate has just given up on climate change legislation.  There are plenty of fingers being pointed, but that won't change the decision.  One could say that the deniers are in the best position they could possibly hope for:  No legislation, with EPA promising to issue weak rules to a limited number of industries that likely will be difficult to enforce.  And now, a trial on the science of climate change. 

Is this a smart idea?  Is it smart to hand EPA a very visible forum to lay out what appears to be a fairly persuasive case (if its denial reports are believed) that climate change is real and must be addressed?  Will the 50% - 60% who now believe in the science turn into 80% - 90% after seeing the evidence that the Chamber will force out into the public domain?  And if so, will it result in one or two Senators (maybe more) deciding that perhaps they need to change their vote if they want to save their job?

Maybe not.  Maybe the Chamber really can beat the EPA on the science.   But it really would be ironic if the Chamber caused legislation to be reconsidered after a Scopes Monkey trial where science actually prevailed.  

RELATED POSTS: Monkeys and Science, Part Deux 

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