By Leslie Z. Walker
According to a Ninth Circuit decision in Natural Resources Defense Council v. U.S. EPA (9th Cir. 2008) 542 F.3d 1235, once the EPA has published a determination that a particular activity is a pollution source, The EPA has a mandatory duty to publish Effluent Limitation Guidelines (“ELGs”) within three years of that determination under section 304 of the CWA.
In March of 1999, the EPA published in the Federal Register rulemaking to address pollution from storm-water discharge and its intent to establish ELG’s for the construction and development industries to support state and local requirements for erosion and sediment controls and storm water best management practices. (64 Fed.Reg. 15, 158.) In 2000, the EPA published final notice of an effluent guidelines plan, listing construction activities as a new source-point category. In June 2002, the EPA issued a proposed rule with three alternative guideline options to address storm-water discharge.
On April 26, 2004, the EPA published its final action under the caption “Proposed Rule: Withdrawal” which effectively ended EPA promulgation of ELGs for the industry. The EPA instead relied on existing state and local government regulation for storm water control. The EPA reasoned the imposition of an ELG would be cost prohibitive to construction, permits were already required for 80 to 90 percent of construction sites in the country under the NPDES system, and discharges from construction activity are generally not characterized as “new sources.” In February 2006, the EPA again did not identify the construction industry as a new source pollution because discharges consisted of “conventional pollutants” not subject to regulation.
The Natural Resources Defense Council (“NRDC”) and a number of states filed suit to challenge the EPA’s delisting of the construction industry as a new point source, and its refusal to promulgate regulations over the new point sources. Section 304(m) of the CWA requires the EPA to promulgate regulations within three years after publishing a plan to regulate newly established point sources. The NRDC claimed that the EPA had a mandatory duty to promulgate ELGs and New Source Pollution Standards three years after it published a new source effluent guideline plan. The appellate court upheld the district court’s decision requiring the EPA to promulgate regulations establishing ELGs and new source performance standards.
Leslie Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.