Supreme Courts’ Mixed Message Doesn’t Change NPDES Rules

The recent U.S. Supreme Court ruling over federal jurisdiction on wetlands issues — Carabell v. U.S. Army Corps of Engineers...

The recent U.S. Supreme Court ruling over federal jurisdiction on wetlands issues - Carabell v. U.S. Army Corps of Engineers and Rapanos v. United States - rates as perhaps the biggest environmental news in the past several years. Editorials on the topic dwarf anything since the new arsenic in drinking water rule was temporarily halted for review by a new Administration in early 2001. Still, while the reach of the Clean Water Act may have been limited, conflicting opinions leave the subject muddied as to a clear precedent. Meanwhile, implications for industrial facilities in areas where navigable waters are questionable remain circumspect at best. Related wastewater and stormwater issues are still governed by National Pollutant Discharge Elimination System (www.epa.gov/npdes) permit rules.

As such, a number of other issues continue to have a more direct impact on industrial dischargers. In that respect, the Environmental Protection Agency has been busy in the past couple of months. Among some of its actions since June 1:

• Rule proposed to control effluent from large animal feedlots (epa.gov/guide/cafo/) - Published June 30 in response to a 2005 court ruling regarding concentrated animal feedlot operations (CAFOs), this revises the current permit system for factory farms, providing greater public participation over nutrient management plans (NMPs) to be submitted along with permit applications. It received a positive response, according to a July 6 Farm Futures report, from the National Pork Producers Council and National Corn Growers Association because fewer facilities would require permits. The National Cattlemen’s Beef Association, though, took issue with the compliance deadline for NMPs.

• EPA publishes final Phase III proposal on NPDES rules for cooling water intake (epa.gov/waterscience/316b/) - This affects structures at new oil & gas extraction facilities with a design intake flow of >2 mgd (at least 25% for cooling purposes) that were excluded from Phase I rules. It’s expected 124 new oil & gas rigs and platforms will be built over the next 20 years that could require as much as 20 mgd of water to cool equipment. They’ll have to comply with Phase I rules. Existing Phase III facilities will continue to rely on current NPDES program procedures - determined on a case-by-case basis. This was effective June 30.

• Stormwater discharge rule finalized to comply with Energy Policy Act (cfpub.epa.gov/npdes/stormwater/const.cfm) - Targeting a Clean Water Act amendment in the 2005 Energy Policy Act, this modifies water permitting program regulations to clarify that uncontaminated stormwater discharges from oil & gas field activities don’t need an NPDES permit. It encourages voluntary application of BMPs for oil & gas field construction activities to minimize erosion and control sediment to protect surface water quality during storm events. States also retain the right to regulate these activities under other laws and jurisdiction. It was effective June 12.

• TRI Program adopts reporting by NAICS codes (epa.gov/tri/tridata/naics/) - Beginning July 1, owners and operators of facilities subject to Toxics Release Inventory (TRI) reporting have to identify their principal business activities using North American Industry Classification System (NAICS) instead of Standard Industrial Classification (SIC) codes. No changes on to whom this applied under SIC reporting, but the Office of Management & Budget plans to update the NAICS system every five years. Next go round - 2007.

• Agency proposes new information collection initiative for manufacturers (eia.doe.gov/emeu/mecs/) - For the first time, the EPA wants manufacturing facilities to include water consumption as part of the Manufacturing Energy Consumption Survey (MECS) of the U.S. Department of Energy’s Energy Information Administration (EIA) report. This likely signals a future focus on water as well energy efficiency, but whether there’s a connection to the mid-June launch of the EPA’s WaterSense program (epa.gov/watersense) isn’t clear.

For the latest in regulatory news, see our exclusive “EPA Action” reports online at www.industrialww.com

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