Legal Update: Review of Recent Court Decisions, New

Rules and Proposed Regulatory Changes

By: Robert D. Cox, Jr., Esq. Donald L. Anglehart, Esq.

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Upper Blackstone Water Pollution Abatement District v. U.S. EPA,

690 F. 3d (1st Cir. August 3, 2012)

• Supreme Court of the United States – Petition for Writ of Certiorari - December 21,

2012 – Order - May 13, 2013

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Upper Blackstone (continued) • Issue presented: EPA not consider site-specific

data or information to set summer 0.1 mg/L phosphorus limit

• District’s position: not consistent with American Paper Institute, Inc. v. EPA, 996 F. 2d 346 (D.C. Cir. 1993)

• EPA used Goldbook target of 0.1 mg/L • Solicitor General’s position: First Circuit correctly

held EPA did not act arbitrarily, capriciously, or contrary to law

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What is Next for the District?

• 2008 Permit Limits effective October 10, 2012

• Administrative Order – under discussion with EPA

• Interim measures to improve effluent quality

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How is the District Performing?

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2001 Permit

2008 Permit

2012 Actual

Total Phosphorus Apr – Oct 0.75 0.1 0.48

Nov – Mar Report 1.0 0.34

Total Nitrogen

May – Oct Report 5.0 5.04

Nov – Apr Report Report 5.34

Courtesy of CDM Smith

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Courtesy of CDM Smith

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Courtesy of CDM Smith

0

200,000

400,000

600,000

800,000

1,000,000

1,200,000

1,400,000

2006 2007 2008 2009 2010 2011 2012

Tota

l Nitr

ogen

[lbs

]

Annual Effluent Total Nitrogen Loading

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National Stormwater Rule – Due June 10, 2013

• Proposed Rule-Making Announced December 2009

• National Research Council’s (2008) findings & recommendations – “. . . use flow of a surrogate like impervious

cover”

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What’s Expected in New SW Rule?

• Regulation of discharges beyond urbanized area

• Post-construction requirements for new development and redevelopment

• Single set of requirements for MS4s (Merge Phase I and II rules)

• Address stormwater discharges from existing development

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New Hampshire Small Draft MS4 Permit

• 3 NPDES General Permits

• Initial Draft: December 2008 (Massachusetts Draft 2010)

• Revised Draft: February 12, 2013

• Comment Period Extended to: August 15, 2013

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New Hampshire MS4 Permit (continued)

• What Changed? – 2010 Census

– New TMDLs

– Non-impaired waters requirement

– More prescriptive actions needed

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New Hampshire MS4 Permit (continued)

• What’s New? – Additional time for completion of some tasks

– Changes to 6 Minimum Control Measures

• Estimated costs: $78k - $829k year

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What is Coming?

• Massachusetts North Coastal Small MS4 Permit?

• Milford, Bellingham, and Franklin RDA-General Permit for Residually Designated Discharges?

• Phase I Permit?

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Virginia Department of Transportation v. EPA, No. 1:12-CV-775 (E.D. VA. January 3,

2013, O’Grady J.)

• District Court held: EPA cannot regulate stormwater as a “pollutant” under CWA.

• Issue: “Does [CWA] authorize EPA to

regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a non-pollutant into the creek?”

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Virginia DOT (continued)

Answer: No “EPA may not regulate something over

which it has no statutorily granted power – annual loads or nonpollutants – as a proxy for something over which it is granted power – daily loads or pollutants.”

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Virginia DOT (continued)

• First ruling specifically addressing EPA’s authority to use flow limits as surrogates in establishing TMDLs

• Other TMDLs based on flow

• EPA did not appeal

• Decision does not affect states’ authority to regulate stormwater flow

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Los Angeles County Flood Control District v. NRDC, 568 U.S. __, No. 11-

460 (January 8, 2013)

• USSC held: Flow of water from concrete channel of waterway into an unimproved portion of same waterway is not a “Discharge of a Pollutant”

• Definition of “Discharge of a Pollutant” - includes “Addition” of pollutant

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L.A. County (continued)

“…no pollutants are “added” to a water body when water is merely transferred between different portions of that water way.”

“…ladle of soup from a pot, …pour it back

in, one has not “added” soup or anything else to the pot”

Impact on MS4 permit holders?

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Decker v. Northwest Environmental Defense Center, 568 U.S. _, No. 11-338 (March 20, 2013)

• USSC Held: Stormwater discharges from

logging roads are not “associated with industrial activity” and do not need NPDES permit coverage

• Deference given to EPA interpretation

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Keeping an Eye On…

• Mass DEP Regulatory Reform - 314 CMR 12.00

• Conservation Law Foundation and Buzzards Bay Coalition, Inc. v. EPA, U.S. Dist. Ct. MA, Case Nos. 1:11-cv-11657 and 1:10-cv-11455

• Gulf Restoration Network v. EPA, U.S. Dist. Ct. E.D. LA, Case No. 2:12-cv-677

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Iowa League of Cities v. EPA, (8th Cir. No. 11-3412, March 25, 2013)

• 8th Cir. Invalidated: EPA water .quality rules issued as letters instead of via formal rule making, and remanded them back to EPA • Notice and comment required - "The hallmark of an interpretative rule or policy statement is that they cannot be independently legally enforced. It is the underlying legislative rules that drive compliance, and thus when an agency applies a newly announced interpretative rule or policy statement, there must be some external legal basis supporting its implementation." - "The EPA has not cited any preexisting effluent limitation or lawfully promulgated legislative rule that supplies the basis for the prohibition on bacteria mixing zones in primary contact recreation areas." - "EPA violated the APA when it bypassed notice and comment procedures. Accordingly, we vacate the EPA's new rule banning bacteria mixing zones in all waters designated for primary contact recreation as promulgated `without observance of procedure required by law.’”

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Iowa League of Cities v. EPA, (8th Cir. No. 11-3412, March 25, 2013)

• Bacteria Mixing Zones - "EPA's new mixing zone rule is not obviously precluded by the plain meaning of any applicable CWA provisions. Therefore, should the EPA wish to institute this rule, it may seek to do so using the appropriate procedures." • Blending Rule - "The blending rule clearly exceeds the EPA's statutory authority and little would be gained by postponing a decision on the merits." - "The EPA is authorized to administer more stringent `water quality related effluent limitations,' but the CWA is clear that the object of these limitations is still the `discharges of pollutants from a point source.” - "The statute is clear: the EPA may regulate the pollutant levels in a waste stream that is discharged directly into the navigable waters of the United States through a `point source'; it is not authorized to regulate the pollutant levels in a facility's internal waste stream." Citing Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 996 (D.C. Cir. 1997).

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New EPA Permit Appeals Rule • EPA Final Rule published January 25, 2013, effective March 26, 2013. 78 Fed.Reg. 5281. • Changes the procedures for appealing NPDES permits to the EPA Environmental Appeals Board. • EAB has not been following EPA's published regulation on permit appeals (40 CFR 124.19) for several years

("EPA is amending the language of the rule to more fully reflect current practice"). • "The changes to the rule clarify to practitioners that substantive briefing must be submitted at the outset of the appeal and that one substantive review will occur."

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New EPA Permit Appeals Rule • The petition for review must now include substantive legal and technical briefing at the outset of the process. 40 CFR 124.19(a)(4). • Petition for review must be filed with the EPA Environmental Appeals Board within 30 days after the Regional Administrator notice of a final NPDES permit decision. 40 CFR 124.19(a)(3). • Petition must identify contested permit conditions or "other specific permit challenge" and include specific references to the administrative record, comments on draft permit, and why EPA's response to a comment is inadequate. 40 CFR 124.19(a)(4)(ii).

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New EPA Permit Appeals Rule • Regional Administrator must file response to the petition, a certified index of the administrative record, and relevant portions of the administrative record 30 days of the filing of the petition. 40 CFR 124.19(b) (2). • Petitioner may file a reply within 15 days after service of the response by the RA. 40 CFR 124.19(c). • The petition for review is limited to 30 pages or 14,000 words, exclusive of attachments. Replies are limited to 15 pages or 7,000 words. 40 CFR 124.19(d). • The rule applies only to EPA permit appeals. Different state laws apply to state permit appeals.

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Questions?