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

Once again, EPA finds that it must reconsider its position and has decided to allow the public to comment on a recently issued memorandum. On November 12, 2010, EPA issued a memorandum relating to TMDLs and storm water permits. It was designed to replace a 2002 memorandum regarding the same topics.

The most important discussion found in both of the memoranda relates to the requirement of numeric effluent limitations for storm water discharges. The 2002 memorandum says that such limitations would be “rarely used.” Much to the chagrin of storm water permitees everywhere, the 2010 memorandum completely reverses this position and states that if a site has the reasonable potential to cause or contribute to water quality standards excursions, the storm water discharge permits for MS4s and construction sites “should contain numeric effluent limitations where feasible to do so.”

One problem with the 2010 memorandum is that it was created without public input. As a result, EPA has decided that it will solicit comments until May 16, 2011, for anyone who wants to be heard. EPA will then decide, by August 15th, whether to retain the memorandum without change, reissue it with revisions, or withdraw it. My suggestion is that the regulated community should take EPA up on its offer because the imposition of numeric limitations will likely have a large cost component with little to no commensurate benefit.

For example, and by way of suggestion only, someone might want to take EPA to task on its belief “that there has been an incremental evolution of the storm water permits program and the TMDL program that has been occurring since 2002, such that numeric effluent limitations are no longer as rare as they were in 2002.” I, for one, would like to see the numbers. It seems to me that, at a minimum, tens of thousands of storm water permits are issued nationwide every year. I would certainly agree with EPA that in 2002, those permits that included numeric effluent limitations were very few. The question is how many such permits were issued in 2010? Let’s say it’s 500 (which I think is way too high). I would suggest that such permits are “rare” even in 2010.

Someone else might want to comment that even if a numeric effluent limitations are no longer as rare as they were in 2002, so what? Is there some reason for fixing a system that isn’t broken? Has someone shown that there is a big advantage to be gained? If following the numeric limitations is 2 or 5 or 10 times the cost of the narrative limitations, is that a sensible trade-off?

Yet others might take issue with EPA’s flippant comment that the memorandum does not constitute a

regulation itself, nor does it change or substitute for those provisions and regulations. Thus, it does not impose legally binding requirements on EPA, States, or the regulated community nor does it confer legal rights or impose legal obligations upon any member of the public.

Someone might want to say to the EPA, “really?” If the memorandum is not legally binding and it does not confer legal rights or any obligations on anyone and it cannot be relied upon, then why are we wasting our time? And will public comment suddenly make the memorandum binding? (Note: While I certainly hope that EPA is correct in saying that it has no impact, the United States Supreme Court might disagree with that assessment as it did in last term’s case of Coeur Alaska, Inc. v. SEACC.  In that case, the Supreme Court went so far as to say that an unpublished memorandum could be used to reverse a decision by the 9th Circuit that had prohibited a company from turning a lake into a landfill.  I wonder if EPA knows about that case.)

In any event, it’s your time to be heard.  Use it wisely.

RELATED POSTS:

EPA Stormwater Policy Explodes Quietly

Coeur Alaska v. SEACC

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Obtaining information can be costly.  In the area of stormwater regulation, it is an expense that EPA wants to pass on to a chosen few.

As previously reported, EPA held six "listening sessions" in early 2010 to consider:

• Expanding the area subject to federal stormwater regulations;

• Establishing specific requirements to control stormwater discharges from new development and redevelopment;

• Developing a single set of consistent stormwater requirements for all MS4s;

• Requiring MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and

• Exploring specific stormwater provisions to protect sensitive areas.

EPA has decided to go forward and is proposing to survey owners and developers of newly developed sites, NPDES permitting authorities, owners and operators of MS4s and transportation-related MS4 entities.  These are revised questionnaires from those originally proposed in October of 2009.  EPA intends to propose a rule to control stormwater from, at a minimum, newly developed and redeveloped sites and to take final action no later than November 2012. 

Turning to the burdens associated with obtaining the requested information, EPA says:

• The number of potential respondents is 5,516;
•  It will take an average of 30 hours to complete;
•  The total cost of compliance will be $7,000,000;
•  There will be 167,669 hours expended; and
•  The long questionnaire for owners will take 73 hours at a cost of $3,435.

EPA contends that it has the authority to compel responses under sections 304(i), 308 and 402(c) of the Clean Water Act.  Even if EPA has the authority to take this information without compensating the parties for the time and money they will expend to comply (under threat of criminal prosecution if they don't respond), should it?  Maybe it would be wise to expend some resources on determining whether other non-point sources (which account for more than 70% of water pollution) should receive scrutiny before adding yet more regulation to relatively small contributors. 

In any event, you have until June 9, 2010  to comment on EPA's need for the information, the accuracy of the burden estimates and suggestions on how to reduce the burden (presumably such suggestions should be constructive and physically possible).

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

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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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