Builders Subject to Effluent Rules, Court Decides
The U.S. District Court for the Central District of California has ruled against the Environmental Protection Agency and NAHB in a suit brought by the National Resources Defense Council over whether the EPA should be required to create effluent limitation guidelines (ELG) for the residential construction industry.
Not subject to these guidelines, home builders instead have been following stringent erosion and sediment control rules set by federal, state and local authorities — and have been saving an estimated $3.5 billion dollars a year by avoiding another layer of federal regulation, according to NAHB estimates.
The ruling is an extension of a partial summary judgment earlier this summer. Now final, the decision sets the stage for an appeal from EPA. In the meantime, EPA must collect background information on discharges by home builders by next December, and if the judge’s decision is not set aside during an appeal, ELGs will be required beginning in December 2009.
“We always need to consider housing affordability. It’s important to participate in this process and try to influence the writing of the rule to be as reasonable as possible,” said Chuck Ellison of Miller and Smith homes and chairman of an NAHB working group that was formed in 1999 to look at ELGs and offer advice to EPA.. The judgment makes no sense, he said. “We participated with EPA and we know things were done properly.”
"NAHB is disappointed in the court's decision," said NAHB President David Pressly. “We agreed with EPA's 2002 decision not to issue ELGs because the data did not support their adoption, and because the duplicative regulation ends up being reflected in the price of a new home without offering additional protection for our nation's waterways." The $3.5 billion in annual savings that NAHB and EPA calculated several years ago is likely higher today, he added.
Effluent limitation guidelines limit the amount of pollutants in wastewater discharges from specified industries and usually include numerical limits for specific pollutants.
Sediment is the pollutant of greatest concern for home builders, and the industry will be forced to meet ELGs through a combination of approaches, such as silt fences, rock filters or the preservation of existing trees and grass — measures that builders and developers already use to meet existing state and local regulations. In the worst case, additional, expensive monitoring equipment could be required, Ellison said.
"We want to protect our environment and we are happy to offer our expertise, but I can think of more efficient ways to meet that goal than another layer of rulemaking," Pressly said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.