U.S. Court of Appeals for the Seventh Circuit
NAHB challenged the Effluent Limitation Guideline ("ELG") that EPA finalized in December 2009, which sets both numeric and non-numeric effluent limitations on the construction and development industry. Developers cannot meet the ELG's numeric standard (280 ntu) with "passive" stormwater treatment. Thus, developers will be required to use "active" or "advanced" treatment systems. EPA, however, developed its economic model based on passive treatment and improperly relied on vendor data in developing the numeric limit. NAHB believes that if the agency had correctly analyzed that data, the numeric limit would be much higher.
NAHB and the Wisconsin Builders Association filed Petitions for Review in late December 2009. The cases were consolidated in the Court of Appeals for the Seventh Circuit. NAHB filed its opening brief on July 9, 2010.
After reading NAHB's brief and recognizing that the numeric limit was indefensible, the government approached NAHB about placing the litigation on hold to allow the Agency to reexamine the record. On Aug. 13, 2010, EPA filed its "Unopposed Motion for Partial Vacature of the Final Rule, Remand of the Record, to Vacate Briefing Schedule, and to Hold the Case in Abeyance," which essentially requires EPA to vacate the numeric standard, remand the related record, and issue a new rule by Feb. 15, 2012. The Seventh Circuit Court of Appeals issued an unclear order on Aug. 24, 2010, so NAHB requested clarification. In September 2010, the Circuit Court clarified that it remanded the ELG to the Agency.
EPA proposed and implemented a direct final stay of the numeric limit, and submitted a new numeric limit to the Office of Management and Budget ("OMB") for interagency review. On Sept. 2, 2011, EPA filed a status report with the court indicating that it withdrew the new numeric limit from OMB "in order to seek additional data on treatment performance from construction and development sites."
In December 2012, NAHB and EPA settled this matter. EPA agreed to propose a rule that vacates the numeric limit and modifies certain BMP requirements. EPA met its obligations, and NAHB filed a motion to withdraw its lawsuit. Thus, this matter is now complete.