E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

Trade groups took a different view, contending that the numeric standard would be exceedingly difficult to meet and estimating that annual compliance costs would exceed $10 billion. These groups sued for judicial review of the rule. Last August, EPA acknowledged that they had mis-interpreted data when they set the 280 NTU standard, which led to a court remand of the rulemaking back to EPA. EPA then forwarded a revised rule to the Office of Management and Budget last December for review, but is not known what numeric turbidity standard EPA was proposing in the revised rule.

Apparently as a result of OMB’s review, EPA is now withdrawing the revised rule and going back to the drawing board. The agency will gather additional data on stormwater treatment options at construction site, presumably to better understand the costs and effectiveness of various treatment technologies.

Why is all of this administrative process of interest? First, it confirms that trade group participation in the rulemaking process is critical. In this case, but for the intervention of groups like the National Association of Home Builders, EPA was prepared to enforce a numeric effluent limitation that was based on flawed science.

More importantly, this regulatory stumble may presage how stormwater discharges will be regulated in the future. Because of the high degree of variability in stormwater discharges, regulatory controls have focused on the use of Best Management Practices (e.g., swales, detention basins, good housekeeping measures) over numeric effluent standards and monitoring. But EPA recently stated in a memo that it intends to increase the use of numeric effluent standards for discharges at small construction sites and municipal separate storm sewer systems (MS4s). While that memo drew considerable criticism from regulated stakeholders, it did signal an intention to move away the stormwater program away from a more flexible BMP program and towards a more rigid system involving discharge standards confirmed through regular monitoring - as found the NPDES permitting program for wastewater discharges. However, by withdrawing its proposed turbidity effluent standard for large construction sites, EPA appears to be acknowledging the complexity of regulating stormwater discharges through numeric effluent standards and monitoring, due to the variability in precipitation, pollutant sources and pollutant transport in stormwater discharges, as opposed to wastewater discharges.  

The next step: EPA will issue a notice in the Federal Register soliciting data to assist its further rulemaking “in the near future.” 

Two years later, MassDOT having failed to take sufficient action, the court enjoined MassDOT to address exceedances of water quality standards at three facilities, and to address deficiencies in its Stormwater Management Plan regarding stormwater discharges to impaired waterbodies with and without Total Daily Maximum Loads (TMDLs).  Based in part on this failure, the Court recently awarded Conservation Law Foundation $386,925.95 for attorneys' fees and $59,718.08 for costs.  MassDOT proceeded to comply with that order, submitted various plans and reports to the Court, and subsequently moved for entry of judgment at the end of 2010. 

The court recently granted MassDOT’s motion, over the plaintiffs’ opposition and motion for additional injunctive relief. In addition to finding that MassDOT had made sufficient progress under the earlier injunctive order, the court noted its reticence to “engage in ongoing supervision of the technical aspects of MassDOT’s activities,” which were within MassDOT’s professional judgment and outside the court’s expertise. The court also noted, based on federalism concerns, its reluctance to engage in decision-making that could dictate how state funds would be expended. 

Filed some five years ago, this case presaged the growing wave of stormwater citizen suits which are being filed against public and private facilities discharging stormwater. (For instance, a similar action was filed last year against the Boston Water and Sewer Commission, into which USEPA Region I recently intervened). For state and local public entities, this case suggests that federal courts may be reluctant to impose overly harsh or lengthy injunctive relief obligations, and may be inclined to accept a reasonable compliance plan and reasonable efforts to implement it.  Given the court’s explicit reference to “federalism” concerns in this case, private entities should not, however, anticipate the same degree of deference in the event they become the target of a citizens suit. One thing that can be reasonably anticipated, however, is a continuing increase in the number of these stormwater citizens suits - against both public and private entities.

The owner/developer questionnaires (issued in both long and short form) request some very detailed information on:

• Type/location/size/identification of projects;
• Land cover areas both pre- and post-development including percent imperviousness;
• Long term stormwater best management practices and controls (with a focus on LID practices), including design criteria, specifications, and cost information;
• Stormwater permit and management requirements;
• Information on design credits or incentives (or impediments) associated with implementing retention practices;
• Firm level financial information;
• Establishment level financial information; and
• Project level financial information.

These questionnaires must be completed within 60 days of receipt, and are being sent out as information requests under Section 308 of the Clean Water Act - this means that there are potential penalties for failing to respond or submitting inaccurate information.