With every passing year, storm water regulations seem to become more of a hot button issue in the construction industry. This year, the Ohio EPA finalized its more stringent Construction General Permit. And recently, the Court of Appeals for the Ninth Circuit in National Resources Defense Council v. United States Environmental Protection Agency, 2008 U.S. App. Lexis 19755, determined that the U.S. EPA must promulgate effluent limitation guidelines and new source performance standards for the construction industry.

The Clean Water Act prohibits the discharge of pollutants from point sources. However, the Clean Water Act also creates an exception in the form of a permit system that allows the facilities to discharge pollutants if certain requirements are met. This permit system is the National Pollutant Discharge Elimination System. NPDES permits contain point source effluent limitations, i.e. “restrictions on the quantity, rates, and concentration of chemical, physical, biological, and other constituents” which are discharged from a point source.

NPDES effluent limitations are based on “effluent limitation guidelines” and “new source performance standards” developed by the EPA. These guidelines and standards are technology based methods that address pollution from existing and new sources of pollution, respectively.

According to the Clean Water Act, the EPA is required to publish a plan every two years that identifies “categories of sources discharging toxic or non-conventional pollutants” for which effluent limitation guidelines and new source performance standards do not exist. Once the EPA identifies a category, it has three years to develop effluent limitation guidelines and new source performance standards for that category.

The National Resource Defense Council sued to force the EPA to adopt effluent limitation guidelines and new source performance standards for the construction industry. The NRDC claimed that the EPA published a plan in 2000 that labeled the construction industry as a category of sources that discharge toxic or non-conventional pollutants. Therefore, the Clean Water Act required the EPA to develop effluent limitation guidelines and new source performance standards for the construction industry within three years.

In 2004, the EPA attempted to withdraw its proposed effluent limitation guidelines and new source performance standards for the construction industry. The EPA indicated that the existing NPDES regulations were addressing 80-90 percent of construction site sediment runoff, the proposed rule would only remove an additional 1 percent of sediment runoff, and the cost for implementing the proposed rule (more than half a billion dollars per year) would be excessive when compared to the benefit.

In addition to the reasons for not implementing the standards, the EPA admitted that it made a mistake in declaring the construction industry a category of sources discharging toxic or non-conventional pollutants. It indicated that the pollutants from construction sites are conventional pollutants – not toxic or non-conventional pollutants.

The court’s analysis hinged on whether the EPA had discretion to promulgate the effluent limitation guidelines and new source performance standards for the construction industry. The court determined that once the EPA declared in its plan that the construction industry was a category discharging toxic or non-conventional pollutants, the EPA had no discretion with respect to adopting effluent limitation guidelines and new source performance standards as the Clean Water Act required the EPA do so.

The court further indicated that the timeline Congress stipulated for identifying categories and effluent limitation guidelines and new source performance standards resulted from frustration with the EPA’s slow pace of promulgating these regulations.

The Court inferred that the decision to add the construction industry to its list was not made lightly. The EPA went through a process of public review and comment and examined whether the category should be listed in its plan. The three-year period is not for determining whether or not to include the category in its plan, the three-year period exists to allow the EPA time to develop the substance of the effluent limitation guidelines and new source performance standards.

For more information on EPA effluent limitation guidelines in the construction and development industry, and to view the status of the EPA’s compliance with this court order, please visit http://epa.gov/waterscience/guide/construction/.