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EPA Ordered To Write Rules For Construction Site Runoff

The Environmental Protection Agency has until December 1, 2009, to promulgate standards for runoff from construction sites. The deadline is contained in a 2006 federal district court ruling that the Ninth U.S. Circuit Court of Appeals recently upheld.

The ruling marks a victory for environmentalists but could provide a significant blow in the form of added expense to the already beleaguered construction industry.

In 1999, the EPA announced it was undertaking rulemaking to address stormwater discharge pollution from construction and redevelopment sites. On August 31, 2000, EPA published a final notice listing construction activities as a "point-source" category under § 304(m) of the Clean Water Act. From that date, the EPA had three years to complete the rulemaking process.

However, the EPA under the Bush administration reversed the course established by the Clinton administration. In June 2002, the EPA issued not a proposed rule, but three options it was considering – two involved potential new standards and one was "no new requirements." In April 2004, EPA chose the "no new requirements" option and halted the rulemaking process. The EPA concluded that existing programs and regulations at the federal, state and local levels were capable of controlling 80% to 90% of sediment runoff from construction sites, and that new rules would have an annual cost of more than $500 million and eliminate jobs.

The Natural Resources Defense Council and Waterkeeper Alliance sued to force the agency to complete effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for discharges caused by construction and land development. The states of New York and Connecticut joined the environmentalists' side. The National Association of Homebuilders and the General Contractors of America sided with the EPA. District Court Judge George King in 2006 ruled for the environmentalists, concluding that EPA had a nondiscretionary duty to prepare the ELGs and NSPSs for the construction industry.

After rejecting EPA and industry arguments that the case was in the wrong court and that environmentalists had no basis for their suit, the Ninth Circuit upheld Judge King's ruling.

Because of frustration with EPA's slow pace of regulation, Congress in 1985 amended the Clean Water Act to require the agency to publish every two years a list of new categories of sources discharging "toxic or nonconventional pollutants" and to adopt new regulations within three years, the Ninth Circuit explained. Once the EPA listed runoff from construction and redevelopment sites as a new point-source category, the agency could not go back.

"First, § 304(m)(1)(c) is clear that once a category is identified under subsection B, the promulgation of guidelines ‘shall be no later than 3 years after the publication of the plan,'" Judge Milan Smith Jr. wrote for the unanimous three-judge panel. "This timeline effectuates Congress' stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had authority to de-list point-source categories at its whim, however, this deadline would be rendered meaningless."

In addition, Smith wrote, the process assumes that the agency has undertaken a public process prior to identification of a point-source category. "It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be," Smith wrote.

Environmentalists argue that such rules are necessary to protect waterways, beaches and drinking water sources from construction-site sediment. The EPA and the industry had no immediate reaction to the decision, which apparently will have to be carried out by the next administration.

The Case:
Natural Resources Defense Council v. U.S. Environmental Protection Agency, No. 07-55183, 08 C.D.O.S. 12341, 2008 DJDAR 14677. Filed September 18, 2008
The Lawyers:
For NRDC: Melanie Shepherdson, (202) 289-6868.
For the EPA: Robert Lundman, Department of Justice, (202) 514-2000.

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