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Wet weather is a mixed bag. To the farmer hoping for a healthy crop or the backyard gardener hoping to cultivate the perfect rose, rain is a welcome necessity. In recent years, however, municipalities and residential and commercial builders have greeted rain with mixed feelings because of the detrimental effect it has on their ability to comply with the Environmental Protection Agency’s (EPA) wet-weather regulations. Over the past decade, the EPA has focused a great amount of time and resources on effecting wet-weather regulations. Why has the EPA jumped into controlling wet-weather discharges with such fervor? There are perhaps as many different answers to that question as there are rainy days in Seattle. All answers, however, revolve around two central points: The nation’s waters are polluted, and the EPA has grown tired of waiting for the regulated community to fix the pollution. Enacted in 1972, the Clean Water Act states that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. 1251(a)(1). Yet in the year 2000, 39% of rivers, 45% of lakes and 51% of estuaries in the nation remain polluted. See Office of Water, U.S. EPA, Water Quality Conditions in the United States: A Profile from the 2000 National Water Quality Inventory Report to Congress (2002), www.epa.gov/305b/. The primary causes of this pollution include urban runoff, storm sewers, nonpoint source runoff and land disposal of waste. Id. Over the past three decades, Congress has added provisions to strengthen the Clean Water Act’s goal to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a). While Congress can claim some success in improving the quality of the nation’s waters, legislation has not resulted in clean water. As a result, the EPA has grown impatient waiting for the regulated community to “fix” water pollution problems under the existing legislation. The EPA views water pollution as a simple cause-and-effect phenomenon. It has identified two of the largest effects of water pollution-sedimentation and sewage in the nation’s waters-and is aggressively addressing the respective causes. A leading cause of sedimentation is storm water runoff at construction sites. The leading cause of sewer overflows is the volume of sewage exceeding the system’s conveyance capacity. There are two types of sewer systems in the country: combined sewers and sanitary sewers. Both combined and sanitary sewer systems are affected by wet weather, and the EPA has been taking enforcement actions regarding both systems. A combined sanitary sewer is one that processes both wastewater and storm water through a single sewer pipe system. In wet weather, sewer pipes fill up with the additional storm water and the system cannot support the increased volume. A combined sewer overflow is a release from sewer pipes of generally untreated wastewater and storm water upstream of a treatment plant to protect the sewer system against overloading. In 1994, the EPA took its first major step in wet- weather enforcement when it promulgated its 1994 Combined Sewer Overflow (CSO) Control Policy. CSO Control Policy, 59 Fed. Reg. 18,688 (Apr. 19, 1994). This policy set out nine minimum controls that must be included in all CSO permits. Those nine controls require, among other things, proper operation and maintenance of the system, regular inspections of the system and general pollution prevention. 59 Fed. Reg. at 18,691. In the 1994 CSO Control Policy, the EPA stated that permittees that have CSOs “should immediately undertake a process . . . to demonstrate implementation of the nine minimum controls.” Id. Also, to ensure that systems were corrected more permanently, the 1994 CSO Control Policy provided for the creation of CSO long-term control plans. The EPA required all permittees to develop, implement and undertake these longer-term policy directives “as soon as practicable.” Id. In 2000, Congress affirmed the EPA’s wet-weather CSO enforcement when it codified the 1994 policy into the Clean Water Act at 33 U.S.C. 1342(q)(1). The EPA estimated that implementation of the directives contained in the 1994 CSO Control Policy would cost approximately $41 billion. For this hefty price tag, the EPA anticipated that once all permittees had implemented both the immediate and the long-term control plans, CSO raw sewage discharges would be reduced by approximately 85%. U.S. EPA, Combined Sewer Overflows to Dwindle Under New Policy, Nonpoint Source News-Notes (May/June 1994), http://yosemite.epa.gov/ow/newsnotes.nsf. In the EPA’s December 2001 Report to Congress, the EPA estimated that while 86% of CSO permits required implementation of the nine minimum controls, only 65% of the permits required implementation of the long-term control plans. Office of Water, U.S. EPA, Report to Congress, ES-9 (December 2001), http://cfpub.epa.gov/npdes/cso/cpolicy_report.cfm?program_id=5. Sanitary sewer overflows Unlike a combined sanitary sewer, a sanitary sewer conveys only sanitary wastewater. Because the pipes do not transport storm water, sanitary sewers do not have designated outfalls for the sanitary sewer overflows (SSOs). SSOs, therefore, occur within the collection system in unexpected locations, such as at manhole covers or broken pipes. In wet weather, SSOs occur because the added volume of infiltration of groundwater and storm water into the pipes puts a strain on the sewer system. To date, no definitive guidance exists for how the EPA will address SSOs. In 1995, the EPA organized an Urban Wet Weather Flows Advisory Committee pursuant to the Federal Advisory Committee Act, with a subcommittee to address SSOs. In January 2001, based on the committee’s work, the EPA administrator signed a proposed rule covering SSOs. However, the Bush administration withdrew the rule from publication. Until the rule is published, states and EPA regions will continue to treat and enforce SSOs in different ways. Despite the lack of formal guidance on SSOs, the EPA has stated that “one of [its] ongoing enforcement priorities is to identify and correct these raw sewage discharges to protect public health and the environment.” U.S. EPA, EPA Strategically Addressing Raw Sewage Discharges Across Nation to Protect Public, Environment, 6 Enforcement Alert 1, 2 (March 2003). The EPA lists assessing “significant penalties” and entering into settlement agreements as two of the enforcement mechanisms it uses for addressing SSOs. The EPA has entered into more than 20 consent decrees addressing CSOs and SSOs with a number of cities, counties and municipalities. While their civil penalties total more than $40 million, there is no sure way to estimate the cost of compliance with all of these consent decrees. Presumably, the compliance cost figure will rise into the billions of dollars. The city of Cincinnati provides an expensive example of one of those consent decrees. Cincinnati has both CSOs and SSOs. The CSOs have continually overflowed into the Ohio River and local streams, and some of the SSOs have occurred in residential basements and yards. On Dec. 3, 2003, the EPA and the Department of Justice entered into a settlement with the city of Cincinnati and the Board of Commissioners of Hamilton County to address Cincinnati’s sewer problems. Pursuant to the settlement, the Metropolitan Sewer District of Greater Cincinnati will spend close to $1.5 billion to implement its SSO plan and develop and implement a plan to bring its CSOs into compliance. The settlement requires that the metropolitan sewer district undertake these actions as soon as possible, but no later than 2022. The settlement tries to balance the financial burden the EPA places on the ratepayers with the reality that CSO and SSO improvements take time to complete. See Consent Decree Information, http://www.msdgc.org/consent_decree/. Erosion and sedimentation occur naturally; however, when land is disturbed both processes are exacerbated. When land is disturbed due to construction, surface erosion increases anywhere between 10 and 2,000 times its previous level depending on the land’s prior use. Office of Water, U.S. EPA, Report to Congress on the Phase I Storm Water Regulations, at 4-1 (February 2000) (Phase I Report). In wet weather, storm water combines with the increased sedimentation, and the resulting runoff can carry contaminants including sediment, oil, heavy metals and various other pollutants into nearby water bodies. To address this problem, the EPA promulgated regulations in 1990 and 1999 that require several types of industrial activity, including construction, to obtain a National Pollutant Discharge Elimination System permit. 40 C.F.R. 122.26(b)(14)(x), (b)(15) (Phase I and Phase II regulations, respectively). The EPA determined that the Phase I standards alone prevented an estimated 3 million tons of sediment from reaching the nation’s waters. Phase I Report, supra, at 4-9. The Phase I and Phase II storm water rules collectively address approximately 97.5% of all construction acreage disturbed in a year. National Pollutant Discharge Elimination System-Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68, 731 (Dec. 8, 1999). Despite this high rate of coverage, the EPA noted that, as of 2000, many industrial storm water dischargers were illegally discharging storm water without the required permit. Office of Enforcement & Compliance Assurance, U.S. EPA, 2003 Storm Water Compliance and Enforcement Strategy (Aug. 14, 2003). “In response, EPA shifted its focus in FY 2000 from outreach and compliance assistance toward increased enforcement for industrial dischargers.” Id. Without a pervasive field presence and enforcement, the EPA believed illegal storm water discharges would continue unabated. As part of its new enforcement-based strategy, the EPA decided to focus its resources on addressing two categories of construction operations: commercial development of “big box” stores and large residential development. Id. The EPA has taken a three-step approach to target both of these operations: prioritizing developers to investigate, sending the targeted developers requests for information (see 33 U.S.C. 1318) and performing site inspections, and undertaking enforcement actions. Such enforcement action can include notices of violation, expedited settlement offers, administrative orders, administrative penalty orders and more formal judicial actions. Id. EPA Region 4, covering much of the South, has followed the 2003 Storm Water Compliance and Enforcement Strategy to the letter. After reviewing available information on large residential home builders, performing initial strategic site inspections and sending out information requests to the high-priority builders, Region 4 has focused its enforcement efforts on three large residential home builders and developers. These three have already spent a substantial sum of money and time trying to resolve the EPA’s storm water enforcement actions. This pressure comes at a time when new home starts are surging, mortgage rates are low and many developers have sold more new homes than they have built. On the commercial building side, the EPA has taken strong action against Wal-Mart Stores Inc. Since 2001, the EPA has assessed Wal-Mart two separate fines totaling more than $4 million because of a continual failure to manage storm water runoff. See Michael Janofsky, “U.S. Discloses Wal-Mart Fine of $3.1 Million,” N.Y. Times, May 13, 2004, at A22. The most recent May 2004 settlement of $3.1 million is the largest civil penalty ever assessed against a company for storm water runoff violations. In addition to the civil penalties, the EPA is requiring the country’s largest retail construction developer to develop and implement a company-wide storm water compliance policy that will certainly cost the company multiple times the amount of the fine. The EPA commented that preventing construction storm water violations will remain “a national priority” for the agency. Id. Based on recent EPA settlements such as the ones with Cincinnati and with Wal-Mart, it is clear that the EPA is trying to send a message: Wet weather is not an acceptable excuse for permit violations. Consumers and ratepayers will bear the lion’s share of the cost of the EPA’s wet-weather policy. Cities will have to increase taxes to update outdated sewer systems, and home builders will presumably pass the increased cost of storm water compliance onto home buyers. The EPA has set its course, and the nation’s permit holders have no reason to think that the agency will stray from it. Lee A. DeHihns III is a partner at Atlanta’s Alston & Bird and a member of the firm’s environmental and land use practice group. He concentrates on regulatory and defense litigation matters for industrial and municipal clients. Shelly Jacobs Ellerhorst is an associate at the firm and a member of the environmental and land use group.

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