“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan
Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed changes to its longstanding NPDES procedural rules are intriguing: we are searching for the real reasons.
NPDES permits are required by the Clean Water Act for any person who proposes to discharge any pollutant (which can be virtually anything) into a water of the United States (which EPA asserts can be almost any moist plot of earth). A discharge violates the CWA unless it is done in compliance with the NPDES permit. So securing an NPDES permit is critical to avoid liability under the CWA. Most states have been delegated the authority to issue NPDES permits and have done so since the early 1980’s. They do so under regulations which EPA adopted at that time, and which have remained largely unchanged for more than 30 years. EPA retains the exclusive authority to issue certain NPDES permits as well as the right to review the decisions of states in limited circumstances.
EPA has proposed more than 30 changes to its regulations at 30 CFR Parts 122, 123, 124 and 125, the rules by which it and the states process and issue the permits. Undeniably, many of the proposed changes are commonsense and unobjectionable. Some new definitions (e.g., “pesticide applications to waters of the United States”) reflect changes arising from court decisions. Public notice of state agency decisions, which have followed the historical practice of publication in local newspapers or agency journals, are proposed to be changed by submission via agency websites. Given that the internet did not exist when the NPDES rules last underwent a significant change, these are good reasons for the proposed changes.
So, what are the real reasons? The most obvious one is found twelve pages into the preamble at 81 FR 31356. EPA identifies in a fairly innocuous discussion a new definition for “proposed permit” and a change of procedure at 40 CFR §123.44 which will allow it to wrench NPDES decision-making from the states to the EPA regions. Here’s why.
Most NPDES permits are issued for a term of five years. Within 180 days of the end of that term, a permittee must submit a new application If the state agency has failed to act on the permit renewal within that time, most state laws and EPA’s own regulation(40 CFR §122.6) allow the existing permit to continue in effect until a final decision is made. Sometimes the extension can continue for years. State environmental agencies frequently have to shift environmental priorities which may cause permit re-issuance to assume a lesser importance. Complicated judgments involving watershed issues non-point sources of pollution, changes in water quality standards and whether designated water quality uses are being attained may make individual NPDES permitting decisions difficult. EPA itself has defended cases in which it allowed a federally issued NPDES permit to languish for 18 years without making a final decision (In Re: Sierra Club, et al, Case No. 12-1860, First Circuit, 2013) so any deficiency does not fall exclusively on the states.
EPA has proposed to address the issue by assuming authority within two years after a permit has been administratively continued (40 CFR §123.44). EPA has suggested that this newly created authority will be exercised “only in very limited circumstances, such as for environmentally significant permits” (81 FR 31357). The examples it provides do not suggest that its newly created authority will be so limited. It identifies circumstances in which an NPDES permit might impact an impaired waterbody (which could be any receiving stream), in which the discharge is one of a “national program priority” (e.g., concentrated animal feeding operation), or perhaps most open-ended for which there exist “public concerns or environmental justice issues”.
In fairness to the state environmental agencies, they deal with the real economic and social impacts of their permitting decisions. The EPA regions do not. Using the CWA as the principal tool, EPA has gutted of the Central Appalachian coal industry over the course of a decade. At the present, it may be the most disfavored industry. It surely will not be the last.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC.