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.
Status: The his has been published as LRD 25: Analysis of Federal Laws, Regulations, Case Law, and Survey of Existing Airport NPDES Permits Regarding Tenant-Operator Responsibilities under NPDES and Stormwater Management BMPs Under Owner/Airport's Operating Permits.