Challenge to AZ’s NPDES Primacy May Go to High Court

A question at issue in Arizona might end up before the U.S. Supreme Court; defendants are considering a high court appeal to decide whether state regulators need to consider endangered species when issuing stormwater discharge permits. It is a landmark case with national implications.
In 2002 the Arizona Department of Environmental Quality submitted a request to the regional EPA office to allow the state agency to issue permits and manage compliance with the National Pollutant Elimination System Permitting Program.

A NPDES permit is required to discharge wastewater into a navigable stream. Stormwater discharge permitting is of special interest to developers who are required to have such permits if rain water flows through pipes, culverts ditches or other channels and enters waterways.

The Arizona Legislature provided legal groundwork for ADEQ’s request when it passed a bill establishing the Arizona Pollutant Discharge Elimination System. Passed during the 2001 regular session, the bill required ADEQ to seek regulatory authority to replace NPDES with AZPDES. Arizona was within a small minority of six states without this authority when the bill was passed.

Environmentalists expressed concern when EPA approved Arizona’s request to manage its own storm water discharge program, fearing the program would not enforce endangered species regulations as thoroughly as federal statutes. The Defenders of Wildlife and the Center for Biological Diversity filed suit in 9th U.S. Circuit Court of Appeals arguing the state administration of the NPDES program would be to the disadvantage of endangered species.

The main issue before the court was: does the Endangered Species Act authorize, even require the EPA, when considering transferring water pollution authority to a state, to take into account the impact its decision will have on endangered and threatened species and their habitat? Referring to a Fish and Wildlife Service’s biological opinion, EPA argued that it lacked the authority to consider such impacts.

Plaintiffs in the case challenged EPA’s transfer decision, particularly its adherence to the proposition that its authority is limited.

The court sided with the environmental interests and denied Arizona authority to issue water discharge permits. The court held, “that the EPA did have the authority to consider jeopardy to listed species in making the transfer decision, and erred in determining otherwise. For that reason among others, the EPA’s decision was arbitrary and capricious.” For the text of decision see:
http://caselaw.lp.findlaw.com/data2/circs/9th/0371439p.pdf

In June the Ninth Circuit Court denied a petition for rehearing on the AZPDES primacy case. The original ruling therefore stands, that the program returns to EPA. In response, a motion was filed to stay issuance of the mandate to allow for an appeal to the Supreme Court. This was granted; ADEQ therefore maintains permitting authority pending the filing of a request that the Supreme Court hear the case. Opinions vary about the chances that the Supreme Court will take the case.

A Supreme Court refusal to hear the case will raise questions about ADEQ-issued permits; it would then have to be determined which remain valid and for how long. Also the status of pending applications would have to be decided.

The National Association of Home Builders is heading an effort to organize support among state officials and other interested parties to petition the Court.

Report: TCE Cancer Threat Greater Than Thought

A recent National Academy of Sciences report stating that increased evidence is available that TCE can cause cancer in humans is prompting a call that current TCE limits in drinking water be reconsidered. The Environmental Protection Agency’s current standard limits TCE to no more than 5 parts per billion.

The results of the NAS 379-page report vindicates a 2001 EPA draft document warning that TCE or trichloroethylene posed a much greater cancer risks than previously thought. The draft report was not received well by the Defense Department, the Energy Department and NASA, agencies maintaining TCE-tainted sites. For example, the Pentagon has 1,400 contaminated facilities. Critics argued that TCE was not dangerous at low levels of exposure

In response to allegations that the EPA inflated the TCE risk, the Bush administration directed the NAS to review the issue. The report stated that additional information available since the draft report supports its premise.

The report states, “The committee found that the evidence on carcinogenic risk and other health hazards from exposure to trichloroethylene has strengthened since 2001. Hundreds of waste sites are contaminated with trichloroethylene, and it is well documented that individuals in many communities are exposed to the chemical, with associated health risks.”

The report is providing grounds for EPA to undertake another TSE risk assessment, this time with information from the report, to determine if drinking water standards should be revised. Some are calling for the standard to be dropped to 1 ppb for drinking water.

The NAS report states that TCE is a pollutant at about 60 percent of the nations’s worst contaminated sites in the Superfund program. If EPA adopts stricter TCE water quality standards, more thorough and more costly cleanup operations would likely be required at various military and other polluted facilities, at a costs of billions of dollars.

Meanwhile the Arizona Department of Environmental quality has published new standards pertaining to TCE in the soil. Now set at 27, standards for residential property were lowered to 17, school property dropped from 27 to 3 and commercial property lowered from 70 to 65.