TOPIC 4-03, Analysis of Federal Laws, Regulations, Case Law, and Survey of Existing Airport NPDES Permits Regarding Tenant-Operator Responsibilities Under NPDES and Storm Water Management BMP's Under Owner/Airport's Operating Permits
The Federal Clean Water Act (CWA) amendments of 1987 empowered the United States Environmental Protection Agency (EPA) to regulate polluted, non-point source discharges, from municipal separate storm sewer systems, and additionally mandated that the EPA establish a storm water discharge permitting system. In 1990, the EPA published guidelines for certain storm water discharges associated with eleven categories of industrial activities known as the National Pollutant Discharge Elimination System (NPDES). These original industrial activities subject to NPDES permitting are known as Phase I operators. Later in 1995, the EPA expanded the scope of the activities regulated under NPDES to include smaller municipal and commercial activities. The operation of an airport servicing an area of more than 100,000 people is a Phase I, Category 8 industry.
The State Pollutant Discharge Elimination System (SPDES), administered by State environmental regulatory agencies is a program designed to monitor and minimize the environmental impacts of wastewater and storm water runoff on both surface and ground water. SPDES is an EPA-authorized storm water runoff regulatory program, approved to uphold the regulatory standards promulgated by the EPA. In fact, at least one state regulatory agency has asserted that the SPDES program is broader in scope than NPDES. The problem involves the responsibility for implementation, enforcement, and liability in connection with SPDES permits at airports where tenant operators (although not a listed permittee) are afforded coverage under the airport’s specific SPDES permit.
In issuing the final NPDES regulations, the “EPA encourages co-permittee status because this approach to permit coverage promotes better coordination of the pollution prevention plan measures and possibly better control of the stormwater discharges” [Final National Pollutant Discharge Elimination System Storm Water Multi-Sector General Permit for Industrial Activities, 60 Fed. Reg. 50804-01 at 51103 (9/29/95).] While the EPA also states that “as the owner/operator of an airport facility and the storm sewer system, airport authorities are ultimately responsible for storm water discharges from their storm sewer system to waters of the U.S. or to a municipal separate storm sewer system” (Id.), if owner/operator alone is on the permit, the implication of the coverage is that the owner/airport is looked to by state and/or federal regulatory authorities for tenant compliance assurances (operations/reporting/ certifications) of both general storm water management, best management practices (BMPs), and construction projects which would traditionally be covered under a state’s general permit.
The project would provide a survey of airport NPDES/SPDES permits where: 1) the airport is the sole permittee under the SPDES program; 2) tenant/operators are treated as co-permittees under the SPDES program with the airport; and 3) tenant/operators (airlines or private terminal operators) are issued individual permits to operate and manage storm water and other discharges from their operations.
The project would also survey and delineate BMPs that airports employ to implement the NPDES obligations for tenant and service provider operations where they are independent from Airport operations and management.
The project would further analyze and compare individual state environmental laws; rules; regulations to expound upon SPDES jurisdictional authority for imposing enforcement responsibility and liability directly on airports for tenant activities; and operations subject to SPDES requirements. Finally, the project will identify SPDES jurisdictional authority for imposing enforcement responsibility and liability directly on airports for tenant activities and operations.
This research will be conducted in two (2) phases. Phase I will consist of Task 1. At the conclusion of Phase I, the ACRP 11-01 Project Panel will make a determination whether to proceed with Phase II. Both phases will be pursuant to a firm fixed price agreement.
Task 1. Survey and Research Plan and Detailed Report Outline. The consultant will present a plan for conducting the survey of airport NPDES/SPDES Permits as well as a plan for summarizing conclusions reached from review of such permits. The consultant will also present a plan for the survey and delineation of BMPs that airports employ to implement the NPDES obligations for tenant and service provider operations where they are independent from airport operations and management. The consultant will also conduct background legal research and develop a research plan. This background research should include a comprehensive description of individual state environmental laws; rules; and regulations including research needed for a summary of SPDES jurisdictional authority for imposing enforcement responsibility and liability directly on airports for tenant activities and operations subject to SPDES requirements. Consultant will also develop a detailed outline for the report. The outline should be about 10 to 15 pages, and contain sufficient detail to inform the committee of the contents of a report of appropriate length for the results of the surveys and the research material. This material will be submitted to the Project Manager for committee consideration.
Task 2. Research. After the ACRP 11-01 Project Panel has approved the Task 1 report and a contract has been executed for Phase II, the consultant should conduct thorough research and analysis of statutes, rules, and regulations and complete the surveys set forth in the project scope.
Task 3. Report Drafting. The consultant will draft the report in accordance with the approved outline (including modifications required by the ACRP 11-01 Project Panel). The report should be adequately documented using footnotes as appropriate. The objective is to publish this report as an ACRP Legal Research Digest (LRD).
Task 4. Revisions. Revise report as necessary. The consultant should anticipate that two revisions will be necessary. One revision may be required after review by the Project Manager and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.
Status: The report is in the editing/publication phase.