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.
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