Regulation of storm water discharges under the Clean water Act.

• Author: Skoch, Edwin A., II
• Position: 1992 Ninth Circuit Environmental Review

1. Introduction

   The discharge of storm water into navigable waterways is recognized as a widespread problem responsible for much of the degradation of U.S. waterways. According to the U.S. Environmental Protection Agency (EPA), "pollution from diffuse sources, such as runoff from agricultural, urban areas, construction sites, land disposal and resource extraction, is cited by the States as the leading cause of water quality impairment."(1) The problem is difficult to solve primarily because storm water pollution is easily created: a discharge occurs whenever rainwater falls on contaminated soils or piles of materials containing pollutants; this storm water then carries the contaminants into waterways.

   Due to the complexity of the problem, regulation by the government had been debated for many years. The Clean Water Act (CWA)(2) - specifically, its National Pollution Discharge Elimination System (NPDES)(3) - was the obvious means for regulation because it controls all discharges of pollutants into waterways. In the 1970s, however, EPA tried to exempt storm water discharges containing only uncontaminated storm water from regulation under the CWA.(4) Later, after being forced to address the problem, EPA developed a two-tiered regulatory scheme that required higher-priority sources of storm water discharges to apply for permits before December 31, 1987, and all other sources to apply six months later. This plan was eliminated by Congress in 1987 when amendments to the CWA were passed.(5) In 1987, Congress added section 402(p) to the CWA, requiring the regulation of storm water discharges and creating implementation timetables.(6)

   After receiving over 3200 pages of comment on the proposed regulations and hosting six public meetings around the country, EPA promulgated the final storm water regulations on November 16, 1990.(7) As a result, storm water point-source discharges into navigable waterways have been brought into the fold of the CWA's National Pollution Discharge Elimination System.

   Just as the size of the storm water discharge problem is huge, so too is the size and cost of its solution. It is very difficult to estimate the number of facilities affected by the storm water program. Prior to 1977, estimates placed the number of storm sewer point sources alone at over 100,000.(8) Congressman Roe estimated that approximately one million storm water discharge permits would be needed.(9) EPA estimated that the annual costs to the federal and state governments for administration of the storm water discharge program will exceed a half-million dollars.(10) The total costs to all other parties, including the permittees, has been estimated at $14 million annually.(11) Average costs of individual permits range from $1,000 for an individual industrial permit application to $77,000 for a large municipal system application.(12)

   Due to the sizeable costs that will result from regulation, the permitting scheme created by the regulations drew fire in the form of litigation from both industry and environmental groups. In 1992, the Ninth Circuit Court of Appeals ventured into uncharted territory as the first court to address the validity of these regulations in Natural Resources Defense Council v. EPA and American Mining Congress v. EPA.(13) Both cases dealt with section 402(p) of the CWA(14) and EPA's regulations that implement and interpret this section.(15) The following is a review of the major issues resolved by the Ninth Circuit in these cases.(16)

2. American Mining Congress v. EPA(17)

   1. Inactive Mining Sites Fall Within the Definition of

      "Industrial Activity"

      CWA section 402(p) requires permits for storm water "discharge[s] associated with industrial activity."(18) EPA, in the implementing regulations, defined "storm water discharge associated with industrial activity" as a "discharge from any conveyance which is used for collecting and conveying storm water and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant."(19) This definition includes "areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water."(20) The regulations specifically include active and inactive mining operations within the definition of industrial activities.(21) EPA's inclusion of inactive mining sites within the definition of industrial activities forces owners of inactive mining sites to obtain permits for any storm water discharges. As a result, the owners of inactive mines are treated virtually the same under the regulations as currently-operating industrial plant owners. The American Mining Congress (AMC) petitioned the Ninth Circuit for review of the regulations because it feared that its constituency - owners and operators of mines - will face large costs due to permitting.

      In American Mining Congress v. EPA,(22) the Ninth Circuit made the following conclusions about EPA's interpretation of section 402(p): 1) It was reasonable and consistent with the CWA's intent, 2) It did not duplicate, vary, or frustrate the Abandoned Mining Lands program contained within the Surface Mining Control and Reclamation Act(23) (SMCRA), 3) It was not inconsistent with EPA's prior practice, 4) It did not impose retroactive liability, and 5) EPA was not required to consider the economic and administrative burdens when promulgating the rule. The remainder of this Section discusses four of these five holdings.

      1. Statutory Intent

         AMC argued to the Ninth Circuit that EPA's reading of section 402(p) in the regulations was contrary to congressional intent. In essence, AMC argued that "activity" plainly meant current activity.(24) Thus, EPA acted beyond the plain meaning of the statute when it included inactive mining sites within the meaning of a "discharge associated with industrial activity." In support of its argument, AMC contended that the legislative history "gave every indication ... that [Congress] intended to address abandoned mine lands through re-mining incentives" provided in the CWA(25) and not through the regulation of discharges.(26)

         The court dismissed this argument, concluding that the language of the statute did not preclude the regulation of inactive mines merely because the CWA requires permits for discharges associated with industrial "activity."(27) In the court's opinion, AMC ignored the key words "associated with."(28) The court noted that AMC had conceded that mining was an industrial activity and that "Congress did not stipulate that the activity must occur concurrently with the discharge of storm water."(29)

         The court's result was logically correct in its conclusion that inactive mines can be a source of current and future discharges and therefore regulation is justified under the language of the CWA. There is no language in the CWA that limits regulation to active mines. Although the court seemed to assume that Congress did not address the issue,(30) legislative history suggests that Congress intended to address abandoned mining sites under CWA section 402(p). For example, Rep. Clinger from Pennsylvania noted that a major water pollution problem was runoff from abandoned mines and supported the bill because he hoped it would prevent the mines from "sit[ting] there year after year, continuing to drain into the streams and rivers."(31)

         In addition, EPA duly limited the scope of the regulations on inactive mines. EPA excluded certain inactive mines that may not be regulated efficiently, including: 1) inactive mines without an identifiable owner or operator, 2) those that have been "reclaimed" under SMCRA or other state laws, 3) those with minimal disturbances (such as those that are undisturbed or where mining operations are solely for the purpose of maintaining a claim), and 4) those where storm water does not come in contact with overburden or other materials.(32) As the court stated, the regulation of inactive mines is limited to "those sites at which storm water discharge is likely to have become contaminated through association with industrial activity."(33) The court correctly held that EPA was reasonable in its determination that inactive sites should be included "because some mining sites represent a significant source of contaminated storm water runoff."(34)

      2. The Impact of the SMCRA on the CWA Storm Water

         Scheme

         AMC argued that inactive mines were meant to be regulated solely by SMCRA.(35) AMC noted the large sums of money that have been included in SMCRA's reclamation fund since its inception,(36) and argued that "[a] major focus" of the program was to regulate runoff from abandoned mines.(37)

         The court dismissed this argument on three grounds. First, the court noted that SMCRA specifically states that it does not alter or supersede the CWA or state laws.(38) Second, the court reasoned that the amount of money available from the Abandoned Mine Lands program was irrelevant and, even if relevant, the fund did not come close to providing the amount of money needed to clean up all coal mining sites.(39) Finally, [p]rior to the actual reclamation ... the Abandoned Mine Lands program does nothing to regulate the discharge of pollutants from abandoned mine lands."(40) Thus, the Ninth Circuit ruled that the regulation of inactive mining sites under the CWA was consistent with the Abandoned Mine Lands program of the SMCRA.

      3. Consistency with Prior EPA Practices

         AMC contended that since EPA had only regulated active mines in the past, it was inconsistent and...