Readers of this column understand what “regulation by information” means. Dissemination of flawed and questionable science information by the USGS has resulted in policies or practices by local governments or businesses such as Home Depot that may not be legal requirements, but nevertheless have the effect of unwarranted regulation of refined tar-based pavement sealcoat (RTS), sometimes without any input sought from the effected industries. Another way to create new requirements for industry is “regulation by litigation,” more commonly called the practice of “sue and settle.” The way it works in creating new environmental requirements is that an environmental activist group (sometimes funded by EPA) sues EPA about an issue. EPA then negotiates with the group and reaches an agreement thus settling the lawsuit with a court-ordered plan of action. The Chamber of Commercedevotes part of its web site to following sue and settle, and describes the practice this way:
Sue and settle occurs when an agency intentionally relinquishes its statutory discretion by accepting lawsuits from outside groups that effectively dictate the priorities and duties of the agency through legally binding, court-approved settlements negotiated behind closed doors— with no participation by other affected parties or the public.
In 2010, EPA reached a settlement with the Chesapeake Bay Foundation by agreeing to create a new federal storm water rule. The rule would create “total maximum daily discharge” (TMDL) standards for storm water discharges and require new controls for new developments and redevelopment projects, possibly even requiring retrofitting of old developments. The rule is expected to also expand the number of municipalities regulated under the Clean Water Act, requiring more cities and towns to develop permits for EPA approval. There has even been talk of requiring permits of individual property owners. The permits would establish requirements for infrastructure, affecting such construction needs as underground pipes, roads with drainage pipes, gutters and ditches. EPA’s goal with the rule is to prevent intermittent impairment of water quality by runoff through retaining storm water in “green infrastructure” such as constructed wetlands, swales, ponds and other methods of holding runoff during storms.
Over time, materials that are not very soluble in water – substances such as fragments of pavement and sealcoat - can build up in sediments in storm water retention ponds or other infrastructure. The infrastructure does the job of protecting downstream waters, and every now and again may need to be cleaned out to make sure the job continues to get done.
EPA has run into delays in creating national storm water rules and standards, but is encouraging the process through incentives to states and localities in the storm water permitting process. Storm water permits are designed to protect downstream water quality, which is not affected by highly insoluble RTS and other pavement materials. Nevertheless, activists in local communities have already successfully inserted an RTS ban into at least one new local storm water ordinance. If your community is revising its storm water ordinances or developing an MS4 permit, keep an eye out for efforts to introduce back door regulations, restrictions and bans. If your community is developing new ordinances, contact your local government and ask to see the proposed language. Ask the government if an MS4 permit is also being developed and ask to see the draft permit. Once you get the draft ordinance or permit, look for key words such as coal tar, seal coat, pavement sealer and other related words. If you are unsure, contact PCTC and we can double check this together.