Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

On November 23, 2009, the U.S. Environmental Protection Agency (EPA) finalized new rules intended to control stormwater pollution from construction sites.  The rule takes effect on February 2010 and will be phased in over four years. 

The most significant new requirement is the imposition of numeric discharge limits from larger construction sites.  In the past, U.S. EPA required construction site owners/operators to implement best management practices (BMPs) to control stormwater runoff without monitoring or discharge limits.  Once the new standards are phased in, owners/operators will be required to sample stormwater discharges and comply with a numeric standard for the pollutant turbidity in discharges according to the following schedule:

• In 18 months (August 2011), construction sites 20 acres or larger will be required to monitor and meet numeric discharge limits
• In four years, construction sites 10 acres or larger will be required to monitor and meet numeric discharge limits

From the EPA press release:

Owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.

There are also impacts to smaller construction sites ranging from 1 acre to 10 acres in size.  The rule will impose a series of mandatory Best Management Practices (BMPs) relating to: Erosion and Sediment Controls; Soil Stabilization BMPs; Dewatering BMPs; Pollution Prevention Measures; and Prohibited Discharges.  Previously, owners/operators were allowed to pick and choose their BMPs as long as they met specified engineering requirements.

Stringency of the Numeric Limits

Dirt particles in storm water discharges typically cannot be effectively removed by conventional BMPs (such as sediment basins). In November 2008, U.S. EPA had proposed a numeric limit of 13 nephelometric turbidity units (NTU). To meet the proposed numeric turbidity limit, sites may have been forced to actively treat stormwater.  Active treatment could have included use of chemical treatment and filtration of their storm water discharges.

However, U.S. EPA backed off the stringent 13 NTU proposed limit.  The final rule has a far more relaxed standard of 280 NTU.  EPA decided to increase the limits based upon a flood of comments suggesting the 13 NTU limit would represent less than background levels at some sites and would be nearly impossible to meet.

Even with the high numeric standard, Industry is concerned with the implications of the new rules.  The construction industry is simply not accustomed to being required to take samples and meet specific permit limits.  As detailed on the Associated General Contractors of America, the following could be implications for contractors at larger construction sites:

On all jobsites where the numeric limit applies, the rule requires contractors to collect numerous stormwater runoff samples from all discharge points during every rain event and calculate the NTU level(s). (This may entail taking "grab" samples by hand and performing measurements with a field turbidimeter; however the rule doesn't specify any sort of monitoring protocol or methods - instead EPA is leaving it up to that states to spell that out in their permits.) If the average NTU level of the samples taken over the course of a day exceeds the "daily maximum limit" of 280 NTU on any given calendar day, then the site is in violation of the federal limitation requirement. EPA is also leaving it up to the states to specify applicable requirements for contractors to report on the samples they take of their construction site discharges...

AGC is deeply concerned about the potential impact this rule will have on the construction industry and will provide more information in the near term as we continue to analyze EPA's C&D ELG rulemaking

No doubt the final rule represents a significant increase in the stringency of regulations applicable to the construction industry. 

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This fall Ohio EPA Division of Surface Water (DSW) has been releasing a series of intertwined rule packages that govern streams and discharges to waterways.  Some business groups have said that the packages represent the most significant overhaul of water regulations in thirty years.

  To date, 3 out of 4 packages have been released:

1. Antidegredation Rule
2. Water Quality Standards
3. Section 401 Water Quality Certification Rule
4. Stream Mitigation Rule (to be released in early 2009)

No doubt the packages are highly technical and cover a myriad of issues.  But what are the implications for businesses in Ohio?

 Boiling down the packages, here are the major changes:

• Creation of a new State Water Quality Permit for impacts to streams
• Complete overhaul of mitigation requirements for stream impacts
• Comprehensive tightening of standards for discharges to water ways (will result in more stringent discharge permits for businesses)
• Standards for drainage ditch maintenance
• Phase out of open lake disposal for dredged sediment from ship channels by the Army Corps of Engineers
• Introduction of a nutrient standard for newly constructed or modified wastewater treatment plants

STATE WATER QUALITY PERMIT

I already discussed the new State Water Quality Permit in a prior post.  I believe Ohio would be the first state in the Country to create a state permit for impacts to streams that are not covered by the Clean Water Act.  The State is reacting to a series of Supreme Court decisions which have reduced federal jurisdiction over waterways and wetlands.

WASTEWATER DISCHARGE STANDARDS

Ohio EPA is proposing to tighten standards for some 135 chemicals.  They are also proposing to revise the human health criteria applied to NPDES discharge permits.  The more stringent standards will be incorporated into NPDES permits after they are renewed (NPDES permits have a 5 year life cycle).  Depending on the business and the nature of their discharge, the tighter standards could result in significant upgrades to wastewater treatment plants. 

The biggest question from business groups regarding the strengthening of water quality standards is....Why  now?   Many of the revised standards were part of U.S. EPA updates from 2000. 

MITIGATION FOR STREAM IMPACTS

For wetland impacts, Ohio mitigation requirements are very straightforward and are set forth in rules.  The ratios for required mitigation and the quality of wetland mitigation is all tied to the class of wetland impacted (Ohio classifies wetlands as either Class I, II or III).

Stream mitigation requirements are not straightforward.  Ohio EPA's stream mitigation requirements have been described by developers as a "black box."   The fact is mitigation is decided on a case by case basis, and lack of consistency is a legitimate concern.  To address this longstanding issue, Ohio EPA is attempting to clearly defined mitigation requirements for streams. 

Each of the four packages contain some aspect that is relevant to stream mitigation requirements.  However, until Ohio EPA releases the main rule package on stream mitigation requirements it will be difficult to see how the pieces fit together.  However, certain aspects of the rules that have been release foreshadow what is coming:

• Primary Headwater Habitat Designation- Ohio EPA creates this new designation and creates three classes based on the quality of the stream.  For lower classes, the focus of the designation is hydrology and not aquatic life.  This sets up mitigation requirements.  If you impact a Class I stream by moving or filling it, you will have to restore the hydrology lost as part of your mitigation.
• "Upland Drainage" and "Water Conveyance" Designations- applies to drainage ditches (or what Ohio EPA refers to as "historically channelized watercourses").  The purpose of these new designations for ditches is to encourage better management practices, such as natural stream design when performing maintenance on ditches.  
• "No Net Loss" Principle Applied to Streams-  A legal issue surrounds the amount of impacts that are allowed under antidegredation principles to streams versus wetlands.  For wetlands, there has been a "no net loss" that actually allows destroying an entire wetland if its value is replaced through mitigation.  There is an open legal question as to whether the same flexibility exists for streams.  Ohio EPA is proposing to settle that issue by bringing the "no let loss" principle to streams.

DRAINAGE DITCHES

A source of major controversy in Ohio has been poorly maintained drainage ditches (see the Ohio Environmental Council web page).  Through mother nature's influence over time, drainage ditches can become valuable headwater streams. The controversy occurs when a farmer or County engineer wants to dredge a ditch for drainage or flood control that has not been maintained for many years.  Will the rules even allow them to perform that work if the stream has become a valuable resources, such as a warmwater habitat stream?

NUTRIENT STANDARDS

For the first time in Ohio, the Agency is proposing to require treatment standards for nutrients.  Nutrients, such as phosphorus and nitrogen, are one of the most significant causes of water quality impacts in the State (U.S. EPA Nutrient Website for background).  The Agency is proposing to take a step in the direction of regulating this pollutants by requiring treatment for nutrients as part of Best Available Demonstrated Control Technology (BADCT) that will apply to new wastewater treatment plants or modifications to the biological treatment process of an existing plant.

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PTIO Program is Launched-  Effective June 30, 2008 Ohio EPA finalized this new permit program which combines the Permit to Install (PTI) and Permit to Operate (PTO) into a single permit for non-Title V facilities.  Facilities will no longer have to apply for a separate PTO.  This program is intended to deal with Ohio EPA's backlog of PTOs which is in the thousands.  Ohio EPA's new PTIO application is up and must be used for new permits.

Electronic Reporting through Air Services- Effective June 30, 2008 Ohio EPA transitioned from its STARship electronic air reporting software to Air Services.  Air Services is part of Ohio EPA's larger effort to transition to more web based business interaction with the regulated community.  Following the release of the Air Services software, both Title V and Synthetic Minor Title V facilities will be required to use the eBusiness Center: Air Services for all emissions reporting, Title V Annual Compliance Certifications, Title V and other permitting applications.

Electronic Reporting of Surface Water Reports-  If you are using paper reporting or SWIMware to submit monthly-operating-reports (MORs) for NPDES permit compliance you need to quickly transition to Ohio EPA's new electronic reporting system.  Ohio EPA indicates it expects to cease accepting MORs by "end of the  summer". SWIMware has been replaced by the new online system called e-DMR, Electronic Discharge Monitoring Reporting System. The term, MORs (Monthly Operating Reports) is now being referred as DMRs (Discharge Monitoring Reports). The new reporting system is entirely web-based and accessible via any internet connection.

Ohio Diesel Grant Awards Announced-  On July 29th the Ohio Department of Development announced the recipients of the grants for diesel retrofit and repower projects for vehicles and fleets.  The award recipients originally submitted applications back in February.  The implementation of the Diesel Emission Reduction Grant (DERG) program was plagued with a number of issues that resulted in the rejection of a large number of applications and delay in announcing awards.  The Ohio Diesel Coalition is working in conjunction with the various State agencies to improve the grant process in the second round.  The Department of Development is expected to release the second request for proposals (RFP) in August. 

Brownfield Redevelopment- Clean Ohio Assistance Fund (COAF)-  As of July 1, 2008 the Ohio Department of Development has begun accepting applications for COAF grants to pay for Phase II site assessments (up to $300,000) and clean ups (up to $750,000) of brownfield properties.  ODOD has approximately $11.4 million to award.  To qualify the property must be in a designated priority investment area (see map).

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In a prior post discussing the impact of the Supreme Court's rulings limiting federal jurisdiction over waterways, I discussed how state's may feel increasing pressure to fill the gaps in federal authority.  A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak. The Globe reported the following: 

The Bush administration didn't pursue hundreds of potential water pollution cases after a 2006 Supreme Court decision that restricted the Environmental Protection Agency's authority to regulate seasonal streams and wetlands.

From July 2006 through December 2007 there were 304 instances where the EPA found what would have been violations of the Clean Water Act before the court's ruling, according to a memo by the agency's enforcement chief.

Two questions I have relative to this story.  First, does this foretell a strange trend where US EPA starts referring cases to the states for enforcement?  Second question- when will the battle shift to permitting?  It cannot be long before a company challenges federal authority to require an NPDES permit.  The most likely candidate in my mind will be something like the requirement to obtain a permit for construction activities.

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