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.

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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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.

RELATED POSTS: New Stormwater Regulatuions Rain Down on Developers 

                             Stormwater Regulation of Developed Sites Coming?

                             Agricultural Runoff Comes Under Scrutiny

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Storm water runoff from agricultural property has long been a problem for water quality, primarily because there is virtually no regulation of that runoff. That might be changing.

In a new report issued by the Environmental Law and Policy Center and the Mississippi River Collaborative, there is a discussion of agricultural runoff and a review of the regulatory programs in California, Delaware, Iowa, Kentucky, Maryland, Oregon and Wisconsin. Among other things, the report emphasizes something that is frequently espoused by clean water advocates. That is:

Nonpoint source pollution is the greatest threat to water quality in the United States, yet neither states nor the federal government has taken adequate steps to diffuse that threat. Nonpoint source pollution is one of the most pervasive forms of water pollution and is not directly regulated the Clean Water Act. (Page 3).

According to the Report, since agricultural runoff is a large contributor to water pollution,

Current approaches to protect water quality will not succeed in controlling nitrogen and phosphorus pollution. The Clean Water Act explicitly exempts agricultural storm water runoff and irrigation return flows from regulatory requirements under the Act and its National Pollution Discharge Elimination System (NPDES) program. Discharges from Concentrated Animal Feeding Operations (CAFOs) are covered by the NPDES permit program, but under U.S. EPA CAFO rules, many CAFOs may not seek NPDES coverage because they do not “propose to discharge.” In practice, this means that manure from these facilities is supplied to land, where storm water runoff is exempt from regulation. Consequently, the largest contributors of nitrogen and phosphorus are scarcely regulated at the federal level and pollution problems continue to worsen. (Page 2).

The Report goes on to examine the limited regulation found in the seven reviewed states and then analyzes the various practices that could be used by the states to control nonpoint pollution. Those five practices are:

• Vegetative buffer requirements
• Land application setbacks
• Winter manure application prohibitions
• Livestock exclusion requirements
• Fall fertilizer restrictions

According to the Report, these are “basic, common-sense practices that should be followed by all agricultural operations.” So why aren’t they?

There are any number of possibilities, but the most obvious is that states that rely heavily on agriculture for their economies are not going to impose expensive restrictions on farming practices. This is certainly a valid consideration and, historically, there have been enough of those states to prevent a change on the federal level and with regard to the individual states, there are enough state legislators that are concerned about rural economies that it is difficult to make radical changes on the state level.  There are some indications that the sacredness of these cows may be changing.

The ELPC Report appears to be making a big splash and it comes at a fortuitous time -- the interest in the environment seems to be increasing and will likely continue for at least the next three years.

Also, in the Iowa Environmental Protection Commission’s Annual Report and Recommendations, issued on January 19, 2010, the EPC issued its recommendations for future legislative action saying:

New legislation to address non-point source pollution from agriculture and urban runoff is needed. Non-point sources of pollution are the major contributor to nutrient and bacterial impairment of Iowa’s water and these sources must be controlled to achieve Iowa’s clean water goals.

(It should be noted that the EPC’s admonition was ignored in that the Iowa legislature ended its 2010 session yesterday without passing any new environmental laws).

Finally, the Des Moines Register immediately reported on the ELPC Report and noted that Wayne Gieselman, Iowa Department of Natural Resource’s Administrator of Environmental Services, said that the requirement of no-crop zones along streams together with voluntary buffer-stripped programs, “could gain traction in Iowa if the federal government put up enough cash for rental payments to farmers.”

This is all to say that it may be that there is a new found willingness to consider what used to be off limits. But as with everything political, it will take time -- and, undoubtedly, money. 
 

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The Clean Water Act is complex and rule intensive.  As such, it is easy to forget the purpose of the Act -- clean water.   The Eighth Circuit recently had an opportunity to remind us of that purpose in the case of Service Oil, Inc. v. U.S. EPA.

For those who practice in the area of property development and storm water regulation, the facts were not surprising.  Service Oil began construction of a Stamart Travel Plaza on more than five acres of land in Fargo, North Dakota. As soon as earth was turned, the site became a potential “point source” under federal law. The storm water discharges from the site were deposited into Fargo’s storm sewer system which then went into the Red River of the North. As a result of this discharge, the site was required to obtain an NPDES permit. The North Dakota Department of Health was authorized to issue the NPDES permits and required that a Notice of Intent to obtain such a permit had to be submitted at least 30 days prior to the start of construction.

In October of 2002, EPA and the North Dakota Department of Health officials inspected the Stamart site and found that no Notice of Intent had been filed, which was quickly corrected by Stamart.  As luck would have it, there was apparently no rain fall that occurred at the site between the time that development commenced and the time Stamart was able to get its Notice of Intent on file. Though the state officials were satisfied, EPA continued its review and determined that Stamart had also failed to conduct site inspections as required by state law.

In bringing its action against Stamart, EPA sought an $80,000 administrative penalty based on two acts: (1) Stamart’s failure to file its Notice of Intent in a timely manner and 2) Stamart’s failure to conduct timely inspections. The majority of the penalty ultimately assessed by the Administrative Law Judge was for the failure to properly file the Notice of Intent. The ALJ found that Section 1318 of the Clean Water Act had record-keeping requirements supported by regulations that required the preconstruction submission of a completed permit application.

On appeal, the Court agreed that the Clean Water Act prohibits discharges without a permit.  It also agreed that it is logical that the regulations provide for permit applications to be submitted prior to any initial discharge. The Court focused on the fact that the regulations required that a person who proposes a new discharge must submit its application before the date on which the discharge is to commence. However, the statute’s requirements, by its terms, applies to a point source. In the words of the Court:

Failure to comply with [the requirement of submitting an application before discharge] cannot be a violation of section 1318(a) because that statute’s record-keeping requirements are expressly limited to “the owner or operator of any point source.” Before any discharge, there is no point source. (Emphasis added).

The Eighth Circuit was simply emphasizing that EPA does not regulate “point sources.” Rather, a point source is just a defined term which determines whether the regulatory scheme might apply to that source. If the source is not deemed to be a point source (such as agricultural runoff), then the regulatory scheme does not apply to it. If it is defined to be a point source (such as a construction site), then the regulations do apply, but only after there has been a discharge.  Since the statute gives jurisdiction only over actual water discharges, a developer cannot be penalized for failing to take out a permit, at least not until a discharge event, such as storm water runoff, has actually occurred.

To emphasis this point, the Court quoted an earlier Second Circuit case:
 

The Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves. (Emphasis in original).

So does this mean the developer can avoid filing a Notice of Intent or obtaining a permit?  The Court, recognizing that EPA might be concerned that it lacks regulatory authority to assess administrative penalties for failing to submit a timely permit application, offered these words of consolation:

Prudent builders know that permits do not issue over night and that storm water discharges can happen any time after the start of construction makes the site a point source. They will apply and obtain permits before starting construction to avoid penalties for unlawful discharges that may prove to be severe. That is the regulatory regime Congress crafted.

In other words, developers take note -- counting on the Farmer's Almanac is probably not a sound business plan. 

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A recent guest editorial in the Des Moines Register makes an interesting observation about water quality in agricultural states -- it stinks.

The authors state that Iowa has a double standard concerning sewage. That is, there are significant and costly regulations for point sources, such as municipal and industrial wastewater treatment facilities that discharge into rivers and streams, but virtually no regulation of non-point discharges, like the transporting and spreading of manure on farmland that then washes off into the waterways. According to the authors:

If state officials hope to stop the degradation of Iowa’s waters, it does not make sense to ignore the agricultural component, which accounts for at least 90 percent of our water pollution.

To be sure, it’s hard to argue against cleaner water. But is it fair to impose a new regulatory and financial burden on cities and urban industries, while continuing to allow industrial agriculture to spread untreated sewage into the land?

The authors conclude that the agricultural, non-point sources should be held to the same standard as point sources and suggest that agricultural discharges should be required to pass through a wastewater treatment facility, though the article fails to mention the staggering cost of that proposal.

It’s certainly an interesting point, and it is not unique to Iowa or the United States. The Clean Water Act has always given a free ride to non-point pollution sources. Though it may make no scientific sense to say that a 40-acre field that has agricultural runoff is somehow different from a 40-acre field that is being prepared for a subdivision, that has been the regulatory scheme for decades. And it has been true despite the fact that, as pointed out by the authors, the vast majority of water contamination can be attributed to non-point sources.

In the past, even the mention of imposing such costs on agriculture, a significant employer in many state economies, was political suicide -- and maybe it will continue to be. But as EPA and state environmental agencies begin to force more and more costly regulation on point sources (for example, storm water runoff from construction sites), those same sources are going to start pressing the question of why non-point sources, which are significantly larger polluters, are virtually exempt from expensive regulation. It may be that it’s going to become harder and harder to keep this cow sacred. At a minimum, it’s going to make for an interesting debate. 
 

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Let there be no question: EPA is very serious about adding significantly to the requirements imposed on developers, cities, homeowners and businesses relating to stormwater discharges from development and redevelopment sites.  Either that, or someone in the stormwater section forgot to take a break for the holidays.

EPA has decided that it will hold five "listening sessions" designed to elicit input as to whether it should "strengthen stormwater regulations and to establish a comprehensive program to reduce stormwater from new development and redevelopment."  Bear in mind that this is in addition to the proposal to send a 61-page questionnaires to 1000 developers seeking financial and project information. 

The press release for the listening sessions provided the following description:

EPA seeks input on the following preliminary regulatory considerations: expand the area subject to federal stormwater regulations; establish specific requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all municipal separate storm sewer systems; require those sewer systems to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.

The sessions will be held:

·         January 19, 2010, 10 a.m. to 3 p.m. at EPA Region 5 Office, 77 W. Jackson Blvd., Chicago

·         January 20, 2010, 10 a.m. to 3 p.m. at EPA Region 9 Office, 75 Hawthorne Street, San Francisco, Calif.

·         January 25, 2010, 10 a.m. to 3 p.m. at EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colo.

·         January 26, 2010, 10 a.m. to 3 p.m. at EPA Region 6 Office, 1445 Ross Avenue, Suite 1200 Dallas, Texas

·         January 28, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel Rios Building, 1200 Pennsylvania Ave. NW, Washington, D.C.

The public can register by going to the Web site below.

EPA will accept written comments on the preliminary rulemaking considerations until February 26, 2010.

More information on listening sessions, the potential rule and instructions for submitting written comments: http://www.epa.gov/npdes/stormwater/rulemaking

Those who will be affected need to take this initiative very seriously.  According to the FederalRegister, EPA is relying heavily on a report of the National Resource Council entitled "Urban Stormwater Management in the United States."  This document is a light read of 529 pages and it advocates a fundamentally new system of stormwater regulation which would impose additional costs and substantially greater regulatory oversight, particularly for cities.  The new system discussed by NRC would apply not only to "building on previously undeveloped sites, but also to redeveloping and retrofitting existing development" (page 406).  Rather than apply to individual sites, the new permitting system would be "watershed based" (pages 346, 387 and 419).  That is, the entire watershed, wherever it is located, would be the permitted area, requiring heavy involvement by cities.  According to the report:

At the heart of the proposal for a new system of regulating discharges to the nation's waters is issuing permits to groups of municipalities in a watershed operating as co-permittees under a lead permittee.  Furthermore, the proposal envisions these municipal permittees assuming responsibility for and implementing the permits for all public and private dischargers in their jurisdiction. (Page 411).

This is your chance.  Written comments can be made or, if you're near one of the five cities, you can go and be heard (so long as you sign up by January 15th and you limit your comments to three minutes).  Speak now or forever hold your stormwater.

Related Posts: Stormwater Regulation of Developed Sites Coming?

                       New Stormwater Regulations Rain Down on Developers

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Recently, EPA promulgated new regulations for stormwater discharges from construction sites which, for the first time, will place a numeric limit of 280 NTU on discharges from those sites during construction. The regulations have drawn criticism but, since they will be phased in over four years, it is unlikely that any change will be made in the near future. Apparently not satisfied with addressing the runoff from construction sites, EPA has indicated that it will consider limitations for runoff which occurs at construction sites after completion of the development (otherwise known as post-construction runoff discharge). That is, EPA is considering requiring significant limits and the maintenance of controls on stormwater coming off of newly developed and redeveloped sites which will be regulated forever, not just during the period of construction.

To have a sound basis for these limits, EPA needs to collect information. It is proposing to do this by distributing a questionnaire to about 1000 developers. EPA plans to mail the 61-page questionnaire around April 2010 for response within 60 days. A response will be mandatory and failure to respond could result in civil or criminal enforcement.

The questionnaire is designed to collect financial, environmental and technical data about projects covering the period of 2005 to 2009. Some of the information to be collected includes:

1. The company’s balance sheet and income statements for 2005-2009;

2. For 10 completed projects, the Notice Of Intent permit number, number of acres, start and end dates of the projects, types of soils and capital costs for each project;

3. Land acquisition, development, financing and sales costs for each project.

A signed certification stating that the responder is aware that there are “significant penalties for submitting false information, including the possibility of fines and imprisonment” is found at the end of the form. EPA’s own estimate is that the information collection will cost just over $4,000,000 and will take the typical company 53 hours to complete the questionnaire.

I understand that EPA has broad power to obtain information.  Usually that power is used when a company is suspected of wrongdoing, but that isn’t what is happening here. EPA is trying to do a study to see if the required placement and maintenance of controls for stormwater being discharged from a development . . . forever . . . can be justified. You’ll need to determine for yourself whether the data being collected will aid in making that determination.

In any event, if you want to be heard on whether this is a good way for EPA to determine whether if, and to what degree, stormwater runoff controls and limits should be imposed after a project is completed, now is your chance. You have until December 29, 2009, to give EPA your 2¢ worth.  It may be the best 2¢ you ever spent.

Related Post: New Stormwater Regulations Rain Down on Developers

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

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Stormwater runoff from construction sites has been an area of environmental regulation that received only passing attention until sometime around 2004.  In that year, EPA inspected a large retail facility, found multiple violations and imposed heavy fines.  Since then, EPA has expended significant resources to ensure compliance with the regulations. 

In 2008, EPA determined  that the existing regulations were insufficient and proposed additional  regulations.  The proposed rules were put out for public comment and on November 23, 2009,  EPA handed down new, technology-based guidelines. For developers and home builders, it wasn’t good news. The new regulations, found at 40 C.F.R. Part 450, impose two new requirements:

1.    Construction site owners and operators that disturb one or more acres must use best management practices to ensure that soil disturbing during construction activities will not pollute nearby waters;

2.    Construction sites that disturb 20 acres or more at one time (later being reduced to 10 acres) must monitor discharges from the site and prevent discharges that exceed 280 nephelometric turbidity units (NTUs) from leaving the site.

The second requirement sets out, for the first time, a numeric standard on discharge from construction sites. EPA’s original proposal was to have a numeric limit of 13 NTUs, which is a very clean discharge. During the comment period, EPA was informed that a limit of 13 NTUs would increase the cost of construction by $15,000 to $45,000 per acre. The final standard of 280 NTUs, while more lenient, will add some significant costs to new construction.

A few items of note about the 280 NTU limit:

1.   If the rainfall is in excess of the 2-year, 24-hour storm event, then the limit does not apply.  In effect, such a large rainfall is treated as a bypass event;

2.    If less than 20 acres (or, later, 10 acres) is disturbed at one time, then the limit does not apply.  As soon as a developer goes over 20 acres of open area, the limit kicks in until there is a drop below 20 acres, in which case the limit no longer applies;

3.    In counting the 20 (or 10) acres, the develop must count all of the acres within the same common plan of development or sale even if the open acres are not contiguous;

4.    The developer can test the effluent multiple times over the course of the day, but the average of those test results must be less than 280 NTUs to avoid a violation;

5.   The BMP requirement applies at all times and is not tied to the 280 NTU limit.

Because the new requirements are a significant departure from the existing regulations, they will be phased in:

1.    Construction sites that disturb 20 acres or more at one time will need to monitor beginning 18 months after the effective date of the rule;
 

2.    Construction sites that disturb 10 acres or more at one time will need to monitor beginning four years after the effective date of the rule.

For states that have not been delegated NPDES authority and that use the federal storm water construction permits (Idaho, Massachusetts, New Hampshire, New Mexico and the District of Columbia), this means that the monitoring will begin August 1, 2011, and February 1, 2014. States that have been granted authority and periodically receive approval for the program will have a delay of the effective date. In the past, EPA has allowed the states to phase in new rules in accordance with their permit renewal dates. For example, Iowa’s storm water construction permit will be renewed on or about October 1, 2012. Therefore, Iowa’s compliance dates for the new requirements could be April 1, 2014, and October 1, 2016. We’ll have to wait to see if this interpretation is allowed for these new rules.

The changes imposed by the new rule couldn’t have come at a worse time, but, to some extent, EPA had no choice. The rule changes were in response to a court order that compelled EPA to makes changes by December 1, 2009. The question that remains is whether the new rules are sensible. That question is for another post.

RELATED POSTS: Stormwater Regulation of Developed Sites Coming?

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

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I just noticed an interesting new law that was passed in the District of Columbia.  As of July 1, coal tar pavement dressings and sealants cannot be used or sold.  It was also banned in Austin, though that ban has been criticized. The D.C. ban, which is part of the District's storm water regulation, is designed to prevent polycyclic aromatic hydrocarbons (PAHs) from being washed off of parking lots and entering streams, rivers and Chesapeake Bay.  It was determined that the dust coming from parking lots sealed with coal tar products have concentrations of PAHs that are 80 times higher than the dust from unsealed parking lots.  While there is an alternative to the coal tar product, it has its deficiencies. 

For the entrepreneurial type out there, this is a trend worth following.  It used to be that we would allow  the conscience of the consumer to choose the environmentally better product.  When that didn't work, because most consumers buy the cheapest and/or most effective product (which is not often the environmentally friendliest choice), at least two legislatures came up with an alternative -- ban the product. This same reasoning can be found in the banning of phosphorus containing fertilizer. 

I'm not trying to be critical here, I'm just trying to point out a trend.  I would say that perhaps the next product to be considered could be char-broiled hamburgers, but my guess is that the burger lobby is a little stronger than the coal tar pavement dressing lobby.  But that's just a guess.

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U.S. EPA Region 1 (Iowa is in Region 7) has recently issued two rulings relating to stormwater discharge permitting that could have a huge impact on existing businesses. In these two instances, EPA has decided, for the first time, to regulate stormwater runoff from impervious cover (such as parking lots and large buildings) from existing developments, regardless of how long they have been in existence.

In the first instance, EPA analyzed the Charles River Watershed in Massachusetts and determined that the impairment of the river was being caused by existing impervious cover from sites having two acres or more of impervious cover. As a result, the Massachusetts Department of Environmental Protection will be issuing stormwater permits to existing, previously unregulated businesses.
 

In the second instance, EPA determined that the Long Creek Watershed in Portland, Maine had a similar problem. Therefore, the Maine DEP will be issuing stormwater permits to any business which meets a one acre impervious cover limitation.

The states are currently promulgating the final rules that will determine exactly what will be required by their respective permits. Presumably, the permits will mandate that those properties which affect the watershed and are above the threshold impervious area limit will be required to, in some manner, treat the runoff from those areas prior to discharge into the impaired water.

Given the number of impaired waters in Iowa and across the country, the implications of these decisions is staggering. Until these rulings, stormwater permitting had applied only to a limited number of industrial facilities, new construction sites and MS4 cities. Should this rule be applied in Iowa, it will mean that fairgrounds, race tracks,commercial sites and retail facilities, to name a few, could be required to find a way to capture and treat the stormwater runoff coming from their facility, even if they have been in existence for 10, 20 or 50 years.

One lesson here is don’t buy asphalt futures – dirt parking lots will be making a comeback!
 

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