U.S. Court of Appeals for the Ninth Circuit
NAHB and the Associated General Contractors (AGC) intervened to defend the Environmental Protection Agency's (EPA) decision to not issue effluent limitation guidelines (ELG) for the construction industry. We were concerned that if the environmental groups succeeded, they would require EPA to impose numeric effluent limitations as to the precise amount of sediment that must be sampled as it leaves a construction site.
In June 2006, the District Court ruled that the National Resources Defense Council (NRDC) had standing to sue. It also ruled that once EPA lists a particular industry as discharging "toxic or nonconventional pollutants" under Section 304(m) of the Clean Water Act, then EPA must actually promulgate an ELG. Furthermore, it held that once EPA puts an industry on the list, as it has done with the construction industry, and thus subjects NAHB's members to potential regulation, then EPA cannot de-list that industry. Thus, the court decided that EPA must develop an ELG for the construction industry and set a time table for it to do so--by December 2009. NAHB and EPA both appealed to the Ninth Circuit Court of Appeals.
On Sept. 18, 2008, the Ninth Circuit agreed with the lower court. It ignored EPA's finding that the construction industry discharges predominantly sediment and agreed that the agency must develop an ELG for the industry. Subsequently, EPA filed a motion for rehearing that the court denied and decided not to seek Supreme Court review. Thus, NAHB's participation in this matter is complete.