Ninth Circuit Affirms District Court Mandate that EPA Must Set Effluent (Discharge) Limits for Construction Runoff
The U.S. Environmental Protection Agency must promulgate a national effluent standard to dictate the amount of sediment that may lawfully be discharged from all construction sites that disturb one acre or more of land, as per a recent order from the U.S. Court of Appeals for the Ninth Circuit. Natural Resources Defense Counsel v. United States Environmental Protection Agency (NRDC v. EPA) (9th Cir. Sept. 18, 2008). The appellate court’s ruling upholds the U.S. District Court for the Central District of California’s permanent injunction, requiring EPA to propose such a rule by Dec. 1, 2008, and to finalize it by Dec. 1, 2009.
At issue, are so-called effluent limitation guidelines (ELGs) that typically specify the maximum allowable levels of pollutants that may be discharged by a certain industry. The “limits” are generally based on the performance of the best available technologies. Once an ELG for the “construction and development” (C&D) industry has been finalized, it will be incorporated into all state and federal general permits for the discharge of stormwater from construction activities.
The Clean Water Act (CWA) Section 304(m) requires that, every two years, EPA publish in the Federal Register a plan that identifies categories of sources that discharge “toxic or nonconventional pollutants” for which ELGs have not yet been published, and then promulgate effluent limits for those point-source categories within three years. In 2000, EPA listed the construction industry as a point-source category on its effluent guideline plan (65 FR 53,008, 53,011 (Aug. 31, 2000)). In 2002, EPA proposed a C&D ELG (67 FR 42,644 (June 24, 2002)). However, in April 2004, EPA withdrew its proposal, reasoning that existing programs, regulations and initiatives to control stormwater runoff from construction sites were sufficient and that additional requirements would be too costly. Subsequently, EPA removed the construction industry from its ELG plan.
Environmental plaintiffs NRDC and Waterkeeper Alliance filed a lawsuit to challenge EPA’s decision to withdraw its proposal to promulgate a C&D ELG after the agency had listed construction in a plan it issued under CWA Section 304(m). The States of Connecticut and New York, along with the New York State Department of Environmental Conservation, intervened on behalf of the plaintiffs. The Associated General Contractors of America (AGC) and the National Association of Home Builders (NAHB) jointly intervened on EPA’s side to defend its “no rule” decision, which followed the agency’s determination that the sediment running off construction sites is not a “toxic or nonconventional” pollutant. The district court granted the plaintiffs’ motion for partial summary judgment on the basis that EPA failed to comply with the CWA by not performing a non-discretionary duty to promulgate a C&D ELG. The Ninth Circuit affirmed.
Specifically, the court concluded that EPA must promulgate ELGs for all point-source categories that it lists in any plan published under Section 304(m) – albeit the relevant provision is limited, by its terms, to industries that discharge “toxic or nonconventional pollutants.” Moreover, the Ninth Circuit concluded that EPA’s non-discretionary duty exists notwithstanding the agency’s subsequent unilateral decision to remove the construction point-source category from its ELG plan.
Very literally reading the CWA, the court also held that language granting the appellate courts exclusive jurisdiction to review EPA action “in approving or promulgating” an ELG does not go so far as to give those courts exclusive jurisdiction over the results of the rulemaking that this particular case had called into question. In doing so, the court emphasized that the NRDC had not challenged “the substance of any existing regulations.” Instead, it had “asked the district court to answer the ‘threshold question of whether the statutory requirements of the CWA [were] met.'"
Assuming EPA chooses not to pursue review of the Ninth Circuit decision, it will be required to finalize a C&D ELG by Dec. 1, 2009, and those effluent limits will be incorporated into federal and state construction stormwater permits. Currently, EPA is grappling with the controversial issue of whether, and how, to set a strict numeric limit on stormwater discharges from construction sites. Several AGC members were selected to advise a Small Business Advocacy Review Panel – made up of representatives from EPA, the US Small Business Administration, and the White House Office of Management and Budget – on the potential effects any ELG rule would have on regulated small construction companies. See related story in this issue of the Observer.
For more information, contact Leah Pilconis, senior environmental advisor to AGC of America, at firstname.lastname@example.org.
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