ELR Citation: ELR 20126
No(s). 06-73217 (9th Cir. May 23, 2008)

The Ninth Circuit vacated and remanded a U.S. Environmental Protection Agency (EPA) stormwater discharge rule that exempts from the Clean Water Act's (CWA's) permitting requirements discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards. The rule is arbitrary and capricious and constitutes an impermissible construction of CWA §402(l)(2). EPA had previously recognized that oil and gas exploration, production, processing, treatment, and transmission operations were required to apply for a national pollutant discharge elimination system (NPDES) permit for stormwater runoff contaminated only with sediment. EPA now argues that its previous NPDES permit requirement for such discharges was merely a "rule of administrative convenience" because it assumed that runoff contaminated solely with sediment was likely contaminated with overburden, raw material, intermediate products, finished product, byproduct, or waste products. EPA also claims that it never previously considered, until the 2005 Amendment to the Energy Policy Act, how sediment alone should be treated under existing regulations. Given that EPA has long recognized that oil and gas construction sites were prime candidates for NPDES permitting in light of what EPA referred to as "serious water quality impacts" caused by construction stormwater discharges polluted with sediment, it can hardly be said that the Agency's previous stance was merely a "rule of administrative convenience" or that it never considered how sediment alone should be treated prior to the Energy Policy Act of 2005.