To:
Members & Affiliates
From:
National Office
Date:
May 29, 1998
Subject:
REVIEW OF STORMWATER PERMITS DENIED BY ENVIRONMENTAL APPEALS BOARD
Reference:
Legal Alert 98-3
Last week, the U.S. Environmental Protection Agency’s (EPA) Environmental Appeals Board (EAB) denied a petition filed jointly by the Defenders of Wildlife and the Sierra Club (petitioners) seeking review of issues related to stormwater permits issued by EPA Region IX to the City of Tucson, Pima County, the City of Phoenix, the City of Mesa and the City of Tempe (all in the State of Arizona). AMSA participated in the proceedings as amici, along with the National Association of Flood and Stormwater Management Agencies, the National League of Cities, and the National Association of Counties. The May 21 decision is attached for your information and review.
In March 1997, the Arizona Center for Law in the Public Interest (who filed on behalf of the petitioners) challenged EPA’s interim permitting policy by requesting an evidentiary hearing regarding the issuance of the permits for the five listed municipalities. The Center raised issues 2-7 (listed below) in comments filed during the public comment period. Issue 1 was first raised in the hearing request.
Last September, AMSA wrote to Carol Browner, EPA’s Administrator, to share concerns about the issues raised in the petition. In the letter AMSA wrote, "Two issues of particular concern to AMSA members are the petitioners insistence that these stormwater permits should contain: (1) numeric water quality-based effluent limits, and (2) whole effluent toxicity testing." On the first issue of concern, the petitioners claimed that numeric effluent limits are required in National Pollutant Discharge Elimination System (NPDES) permits as a question of law. AMSA held that numeric effluent limits in permits are a question of fact. The EAB concurred and held that "numeric effluent limits . . . are not necessary to ensure compliance with (State water quality) standards."
On the second issue, petitioners claimed that whole effluent toxicity testing must be included in the permits to comply with EPA regulations and guidance. AMSA wrote that there is no legal requirement that whole effluent toxicity testing be included in any NPDES permit. The EAB also concurred with AMSA and Region IX’s finding that this type of testing is not required.
The charges brought to the EAB for review, as well as a summary of the Board’s decisions, follow:
1) The Region improperly met with permittees and the Arizona Department of Environmental Quality during the comment period to discuss the draft permits.
The EAB found that meetings between the Region and the permittees held during the permit comment period did not violate regulatory procedure and did not constitute ex parte communication. In the decision, the Board pointed out that notes from the meetings were included in the permit records and were available for general review.
2) The permits fail to assure compliance with State water quality standards because they do not contain numeric effluent limits or whole effluent toxicity limits.
The EAB decided against the Defenders of Wildlife/Sierra Club charge stating that they had failed to show that the Region’s determination to use Best Management Practices in permits was unlawful or inappropriate given the lack of current information on which to base standards development.
3) The permits are inconsistent with the Clean Water Act as well as EPA regulations and guidance because the permits do not require whole effluent toxicity testing of the discharge.
The Region determined that inclusion of toxicity-related effluent limitations in the permits would be premature because of the unique nature of stormwater discharges in Arizona and the uncertainties associated with brief, episodic discharges. The Board agreed with the Region’s determination and denied the request for review on this issue.
4) The stormwater management programs incorporated into the permits fail to quantify the pollution reductions estimated to occur as a result of the pollution control measures required by permits.
5) The permits for Pima County and the City of Tucson fail to address pollution from areas of new development.
6) The Region has improperly allowed the permittees to defer the submission of certain components of their stormwater management programs.
Issues 4, 5 and 6 were deemed "not ripe for review" by the EAB. The Region had previously withdrawn and modified the portions of the permits in contention in 4,5 and 6. The EAB noted that the petitioners now have the opportunity to seek administrative review of the reissued provisions.
7) The Region has illegally deferred the requirement that the City of Tucson demonstrate adequate legal authority to carry out the required elements of a stormwater management program.
The Board agreed with the Region’s initial decision that the City of Tucson has legal authority to carry out the stormwater program based on the City’s general authority to protect public health and the environment.
If you have any questions about AMSA participation on this issue, please contact Mark Hoeke (202/833-9106) at the National Office.
ATTACHMENT: May 21Decision (Please contact AMSA’s National Office at 202/833-3280 for a copy of this document)