New EPA Construction Site Effluent Rule

Those who read this blog are aware of my coverage of new numerical standards for nutrient pollution the EPA is enacting in Florida. Well that is not the only place they are putting numerical criteria into effect. Below is a news alert from two attorneys at my firm, Ralph Ferrara and Jennifer Simon Lento. Ralph is the head of our construction law practice, and Jennifer is an associate in our environmental department (who also has an excellent blog on off-shore wind farms that you can find here). So without further ado:

On February 1, 2010, the U.S. Environmental Protection Agency (EPA) made effective a new final rule that imposes national monitoring requirements and enforceable numeric limitations on storm water discharges at all construction sites larger than one acre.

Under both the present and past regulatory schemes, all construction activities that could result in the discharge of pollutants into nearby bodies of water require the owner or operator to obtain permit coverage pursuant to the EPA’s National Pollutant Discharge Elimination System (NPDES) program or through a state administered analog program.

The new limitations, which include new effluent limitations guidelines (ELGs) and new source performance standards (NSPS), must be incorporated into all permits issued under EPA’s NPDES program or under analog programs administered by state agencies.

Compliance with the new rule will be staggered over the next four years. As of the effective date, construction site owners and operators that disturb one or more acres must use “best management practices” (BMP) to ensure that soil disturbed during construction activity does not pollute nearby water resources.

Specific numerical limitations will take effect in 2011 and 2014 for sites larger than 20 acres and 10 acres respectively. These sites must sample stormwater discharges, and meet a limitation of 280 NTU (nephelometric turbidity units). Sites larger than 20 acres must begin monitoring and sampling discharges to comply with the new limitations beginning on August 1, 2011. Sites larger than 10 acres will become subject to the same monitoring, sampling and compliance obligations on February 2, 2014.

These requirements will apply both to EPA’s Construction General Permit (CGP) and to individual permits issued by the states or by EPA. New Jersey, Pennsylvania and Delaware issue their own CGPs and individual permits. The new requirements must be incorporated into any new general permits issued after February 1, 2010. However, any CGP or individual permits issued by a state or by EPA prior to February 1, 2010 will remain valid until their expiration dates, and need not comply with the new final rule.

This rule is further evidence that the once sleeping EPA is now becoming active. And I believe we can expect this trend to continue into the foreseeable future.

ps. Please note that this is a brief summary of the new rule and there are other changes not discussed here which may impact specific situations. If you have a specific construction matter that you are concerned may be impacted by this new rule, please contact either Ralph or Jennifer to discuss it.

Florida Gets Another Reprieve, In Part, From Numerical Standards

I have written several posts about the EPA’s decision, in settlement of a lawsuit, to enact numerical standards for nutrient pollution in Florida. The original settlement called for the EPA to have issued such criteria by now. Two months ago the EPA extended the comment period for its proposed criteria – a step that many expected.

Yesterday the EPA issued a new letter to the Florida DEP stating its intention to delay the implementation of numerical standards for estuaries and coastal waters until 2011. In addition, the EPA will apparently seek “additional third party review,” to be announced next month, to review the scientific basis for water standards applicable to these environments.

For environmentalists this is bad news in as much as it delays the implementation of standards until next year. For those who oppose new environmental regulation, that regulation has just been put off a year for a large swathe of areas that would otherwise be affected.

I believe however that this announcement is a good thing in the end. Numerical nutrient regulations are probably necessary, but given their complexity should not be rushed into. If the regulations are going to be meaningful they need to be backed up by science addressing the particular environments to be regulated – something that is thin on the ground at the moment. Remember, unlike other contaminants, these are compounds that are both naturally occurring and necessary for normal aquatic ecosystems. Appropriate levels of these compounds can also vary from one water environment to another. As a result, generalized standards are neither appropriate nor possible.

Nutrient Standards Delayed 30 Days

Florida got a brief reprieve today from the enactment of numeric nutrient standards. The EPA announced today that it would extend the comment period for its proposed numeric nutrient standards for 30 days to "ensure that Florida residents voices are heard...."

This is an issue I have reported on before because of the likelihood that such standards will eventually be mandated nationwide. Numerical nutrient standards are controversial due to the cost associated with determining what the appropriate levels of nutrients are in various bodies of water.

Many in Florida are watching these proceedings with interest/apprehension.

Florida's New Water Standards

Well, it’s a new year, and I hope everyone had an enjoyable holiday season. And while most people are recovering from holiday excess, watching the fireworks in Washington, and the tragedy in Haiti, the EPA is continuing to tick along.

I have written twice before about litigation in Florida designed to force the EPA to enact numerical standards for nutrient pollution in Florida's waters. Those standards have now been issued. This begins a 60-day public comment period. Some estimate that the cost of complying with the proposed standards could exceed a billion dollars. A cost that will have to be borne by government and industry.

Certainly we can expect that the comment period – which may be extended – will be “vigorous.”

But the bigger question that has yet to play out is the impact of numerical standards on a national level – something for which this litigation has opened the door. And as expensive as numerical standards may be for Florida, the cost for other states could be even higher. Florida, unlike many states, already has a significant knowledge base regarding the quality of its waters - largely due to the diligence of various state and local agencies. States that have not been monitoring their water quality as diligently will have to do so if they are to have any hope of establishing scientifically valid nutrient standards. While the states should probably be doing this anyway, it isn't going to be cheap.

And in this age of economic woe, who is going to pay for it?

Most states are teetering on the edge of serious financial crisis – if they haven’t fallen over it already. The federal government is already up to its eyeballs in debt. And industry – at least the kinds of industry that will be affected by these new standards – isn’t exactly flush right now either.

Don’t get me wrong – I understand the compelling argument for the superiority of numerical standards over softer narrative standards. I think taking steps to prevent nutrient pollution is necessary. But the implementation of standards needs to be done in a balanced way, and the costs associated with the regulations need to be considered as part of the process. We should always strive to do better, but setting impossible or unrealistic goals only sets us up for failure.

Nutrient Standards A Reality

As I wrote last month, there is an interesting piece of litigation going on down in Florida over whether the EPA is mandated to issue numerical limits for naturally occuring nutrients in waters covered by the Clean Water Act. Well, the Court approved the consent decree between the EPA and the plaintiffs, and the EPA will apparently be promulgating its first set of proposed numerical standards by January 15, 2010.

I have also been informed by sources close to the issue that the copy-cat litigation I speculated about last month may now be a reality. Apparently the Sierra Club, among others, has just issued a 60 day notice of intent to sue (which you can find here) on the same issue in Wisconsin. Similar lawsuits in other states are anticipated.

Updates From The New York Times

The New York Times had two interesting articles today that caught my eye.

The first - on the front page - is a report that more than 20% of the U.S.'s water treatment systems have violated "key" provisions of the national Safe Drinking Water Act over the past five years. According to the Times, while regulators were made aware of the violations, less than 6% resulted in regulatory action (i.e. fines or other punishment). According to anonymous insiders at the EPA, the lack of action is due (1) to the concern that any fines or other punishments will simply be passed on to taxpayers; and (2) the fact that drinking water cases lack headline appeal.

This report highlights a significant problem with any regulatory regime. It is not enough to simply have laws and regulations. You have to enforce them. Given the EPA's new committment to enforcing water law in the U.S., perhaps we will start to see some action on this issue. (And thanks to Mike Campana over at WaterWired for the heads up on this story.)

The second Times story that caught my eye today is the announcement that the World Meteorological Organization has issued an analysis that the decade of the 2000's (2000-2009) is going to go down as the warmest decade since instrumental record keeping began more than 150 years ago. And though the year isn't quite done yet, 2009 may end up among the top 5 hottest years on record as well. This assessment is apparently consistent with similar independant assessments performed by NASA and the U.S. National Climatic Data Center.

We can only hope that this report puts to rest the argument (usually based on highly cherry picked data) that the Earth is actually cooling globally.

Well I Guess We Know Where He Stands....

As a follow-up to my earlier post today about the EPA's determination that certain greenhouse gases constitute dangerous pollutants, I just came across the following press release from the Governor of Texas. Here is the whole release (which is also posted here):

AUSTIN – Gov. Rick Perry today issued the following statement regarding the Environmental Protection Agency’s (EPA) ruling on the danger of carbon dioxide:“It is unconscionable that unelected bureaucrats at the EPA have declared carbon dioxide a public danger despite a lack of scientific evidence to support their ruling. This action should be of grave concern to all Americans, especially Texans, in light of the recent “Climategate” scandal, which uncovered data had been manipulated and destroyed in order to falsely show a preordained result. “We have already seen a sweeping expansion of federal authority, federal takeovers and federal spending under the Obama Administration. Today’s ruling continues a pattern of aggressive federal encroachment into every farm, business, church and household in America. “EPA’s own data shows that Texas’ carbon dioxide emissions have fallen more than any other state this decade due in large part to a regulatory environment that has encouraged the use of alternative sources of energy and cleaner power generation through flexible and science based permitting and monitoring. The federal government should be following Texas’ model of innovation and competition, not burdensome and costly mandates.”

Obviously he does not support the EPA's decision. And he is not the only person venting their spleen in the wake of the announcement. Various congressional leaders (mostly Republicans from what I have been able to gather) and business interests have also indicated their displeasure.

Senator Kerry supports the EPA's finding, but is urging the Senate to act to pass a legislative solution. According to Senator Kerry, EPA regulation is a "blunt instrument" that will create bigger problems for industry than climate legislation. And he's probably right.

The EPA can set limits on greenhouse gas emissions, and enforce those limits. But the EPA does not have Congress's flexibility to craft carbon regulations that limit emissions while trying to minimize the impact on the economy. And while I'm a firm believer that we must reduce our greenhouse gas emissions significantly over the coming years, we can neither ignore nor fail to try and minimize any negative impact those efforts will have on our economy.

Congress needs to get to work.

EPA Finalizes Endangerment Finding Relating To Greenhouse Gases

(Though not directly related to water, this development was too important to pass up)

Today, December 7, 2009, the EPA has announced that it has finalized its finding that greenhouse gases (in particular carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride) constitute a threat to public health and welfare. This determination is the end result of a process mandated by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.

Lisa Jackson, the EPA Administrator, announced that pursuant to this finding, large greenhouse gas emitters (more than 250 tonnes annually) will be required to incorporate the best available technology to reduce greenhouse gas emissions in all new construction and in the expansion of existing construction beginning next year. There will also be reporting requirements that will begin for large emitters in 2011.

This determination, though not unexpected, is legally significant in that the EPA is now required under the Clean Air Act to issue air quality criteria for these five greenhouse gases within the next twelve months. 42 U.S.C. §7408(a)(2). Simultaneously, the EPA is required to propose national ambient air quality standards for the greenhouse gases. 42 U.S.C. §7409(a)(2). From that point on there are a variety of statutory mandates that, in effect, require the EPA to promulgate regulations which will govern the emission of greenhouse gases.

I suggested some time ago that recent rhetoric coming from the EPA, and Ms. Jackson in particular, appeared to indicate that the EPA was awakening from its slumber over the last eight years. And that the EPA might prove to be a tool the administration could use to promulgate environmental regulation without having to rely on Congress. Well, the gauntlet appears to have well and truly been thrown down now. Unless Congress intervenes with some sort of climate legislation in the next twelve months (or otherwise overrules the EPA), it appears the EPA will start regulating greenhouse gases on its own.

The politics of the move are impressive. Ms. Jackson went out of her way at the press briefing to stress that she prefers that climate change be addressed legislatively by Congress. But if Congress doesn't act in the next twelve months, she can plausibly say that she has no choice under the law but to do what Congress won't. Indeed, the EPA's press release alludes to this very reality:

President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants.

(You can find the release here.)

And while Congress may not be able to pass meaningful climate legislation in the next twelve months, it seems equally unlikely to me that they will be able to pass legislation stopping the EPA from acting.

This determination may well prove to be the opening bell for the serious regulation of greenhouse gases in the United States. Certainly any sort of regulation that comes out of the EPA is likely to be far stricter than anything Congress will be able to pass. That may put significant pressure on those opposing climate change legislation and force them to compromise. It will also give President Obama added legitimacy when he appears in Copenhagen.

It will be very interesting to see how this plays out over the next twelve months.

For further reading, the EPA has set up a web page here which brings together available resources on the subject.

And The Hammer Comes Down

No...it's not a gavel reference, but rather a reference to a New York Times article that I just came across (thanks to WaterSISWEB). The head of the EPA, Lisa P. Jackson, was recently before Congress's Committee on Transportation and Infrastructure. What she had to say was very interesting.

Ms. Jackson essentially admitted what everyone has long known - that the EPA has done very little to enforce clean water regulations over the last decade. Moreover, she has promised that the EPA's laxity is now at an end. This signals the enforcement sea change that many have expected ever since the Obama administration came into office.

Of course the proof is in the pudding as they say. We will have to wait and see whether the EPA will really carry through on the rhetoric. But for an administration eager to take a strong line on environmental issues - an ambition that is being thwarted in Congress - the EPA provides a convenient executive tool for unilateral action.

Rapanos Redux

Two weeks ago I posted an entry about the Clean Water Restoration Act (“CWRA”). Shortly thereafter, at the request of U.S. Representative James Oberstar, the EPA issued a report containing the anecdotal comments of various regional EPA and U.S. Army Corps of Engineer officials regarding the Supreme Court’s decision in Rapanos. That decision serves as one of the rallying points for supporters of the CWRA, who claim that it has limited the scope of federal jurisdiction under the Clean Water Act and caused confusion among government agencies as to what jurisdiction actually does exist.

The upshot of the report is that there is unverified anecdotal evidence that uncertainty associated with the Rapanos decision has increased costs to the EPA (and to some extent the Army Corps of Engineers) associated with evaluating and bringing enforcement actions. The report specifically states that nationwide the Rapanos decision has affected approximately 489 enforcement actions, “such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.” (See Report, p. 1) This report supports the notion that some resolution of the confusion caused by Rapanos, such as the CWRA, is needed.

Whether Rapanos improperly limited jurisdiction under the Clean Water Act or reigned in out of control jurisdiction is a question of perspective. That the Rapanos decision has caused confusion is not. This is evident in the split of the various U.S. Courts of Appeal over which of the three tests propounded by the Supreme Court should be controlling. (See e.g. United States v. Cundiff, 555 F.3d 200, 207 (6th Cir. 2009)(“Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which--if any--of the three main opinions lower courts should look to for guidance.”)

Indeed, the Sixth Circuit in Cundiff discusses the dilemma and current divisions among Circuit Courts quite succinctly:

In its short life, Rapanos has indeed satisfied any "bafflement" requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy's test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit has held that the Act's coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens' advice and held that the Act confers jurisdiction whenever either Justice Kennedy's or the plurality's test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).

Cundiff, at 208. The Sixth Circuit was able to dodge the dilemma in Cundiff by ruling that Clean Water Act jurisdiction existed under all three tests in that particular case. Other Circuits have similarly dodged the bullet thus far, while presumably hoping that either the Supreme Court or Congress will act to resolve the confusion.

Rapanos is not the first splintered decision issued by the Supreme Court, and the Court has provided some guidance to lower courts for exactly this eventuality, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’" Marks v. United States, 430 U.S. 188, 193 (U.S. 1977). This test essentially invites the lower courts to guess how the Supreme Court justices would vote if the case were before them. Unfortunately, the plurality and Kennedy tests enunciated in Rapanos each flatly reject the other. This is complicated by the dissenting Justices who command four votes and held that jurisdiction exists under either test. Thus:

Although "in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality)," in other cases Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection."

Cundiff, at 210 (citations omitted). Given the confusion among the courts, it is not difficult to see why the Army Corps of Engineers and EPA are having trouble with Rapanos.

PPCP Contamination of our Water Supply

It’s not exactly breaking news, but it is still worth talking about the growing realization among scientists that our water supply (and by that I mean not just the water coming out of the tap, but also streams, lakes and even bottled water) is contaminated by low levels of Pharmaceuticals and Personal Care Products (known as “PPCP’s”). Take a look at this AP report which first brought this issue to the public’s attention.

As it turns out, every time we pop pills (something we do a lot more these days) our bodies do not metabolize 100% of the medication. This is true whether it is over-the-counter ibuprofen or prescription birth control pills. The portion that is not metabolized ends up down the toilet. Similarly, all the makeup, suntan lotion, moisturizer etc. on our skin ends up in waste water after we wash – or in our lakes, rivers and streams after we swim. This is compounded by the apparently widespread direct disposal of unused medications down the toilet and into landfills. For an interesting diagram of some of the ways PPCP’s enter our environment take a look here (thanks to the MassDEP).

While it should come as no surprise that we flush all sorts of things into our waste water, what has caused a certain amount of surprise and consternation among scientists is that PPCP’s appear to survive in the environment at very low levels (or are replenished at a rate equal to or greater than the rate at which they break down), and they have been detected just about everywhere. For a more technical discussion of the issue, see here.

Now, it is important to note that the level of contamination is far below therapeutic dosages. The concern remains however 1) that we don’t understand the possible effects of long term exposure to these chemicals, either individually or in combination; and 2) that we do not seem to have a good handle on how to get PPCP’s out of our water if they are causing a problem.

This issue has not gone unnoticed at the EPA (see here) or at various State DEP’s (e.g. here). The EPA is currently sponsoring a number of research projects, some of which will be completed this year. It appears that the early targets of the EPA’s research efforts are health care facilities.

Health care facilities may not seem like an obvious target, but the EPA has thus far identified more than 50,000 facilities in the US that the EPA believes may dispose of large quantities of unused pharmaceuticals. The term “health care facility” here includes not just hospitals, but also nursing care facilities, retirement communities, and residential facilities for the mentally handicapped. Surprisingly, there are no comprehensive federal regulations dealing with disposal methods for pharmaceuticals. For pharmaceuticals which fall under the Controlled Substances Act, disposal methods are mandated, but permit the health care facility to destroy unused meds by flushing them down the drain. State and local regulations are a patchwork.

Whether or not there is a human physiological impact from PPCP’s, the early results suggest that there is at least some environmental impact. That may well lead to new regulations to control PPCP levels in our drinking water and environment. While some of those regulations will undoubtedly impact the way we dispose of these products, it is also likely that they will require at least some remediation of water that is already contaminated.

There is also the obvious public relations aspect of the problem as evidenced by the tone of the AP article mentioned at the beginning of this post. If PPCP’s are found to have an impact on human health – and possibly even if they don’t – it is not difficult to imagine that the public will demand water that has been filtered for these compounds. This presents an interesting opportunity for those in the water industry who can develop the necessary technology to reliably filter these chemicals out of our water.