The Environmental Protection Agency recently surveyed U.S. airports regarding their deicing activities as the agency looks to reevaluate its policies related to groundwater runofff and remediation. Here, an environmental attorney explores EPA's initiative as well as considerations for airports regarding compliance. He suggests that some airports (and tenants) may be caught off guard by the agency’s initiative.
The Environmental Protection Agency is continuing its effort to more tightly regulate air carriers and airports that use deicing chemicals which are exposed to stormwater runoff or discharge. EPA recently sent questionnaires to 153 airports using its authority under Clean Water Act § 308, and sent screening questionnaires to 94 air carriers, which will also receive follow-up questionnaires.
The process is designed to identify deicing controls and measures that will be imposed on airports and air carriers by federal regulation, potentially causing significant increase in the cost, infrastructure, and regulatory scrutiny associated with deicing and anti-icing. Any airport or air carrier conducting deicing operations without a state or federal Clean Water Act discharge permit that specifically covers deicing chemicals will also be identified through this process.
The primary purpose is to develop new Clean Water Act standards; a collateral regulatory impact will probably be that facilities operating without a Clean Water Act permit will have to obtain one. Depending on the standards set in the Effluent Limitation Guidelines (ELG) process, facilities with existing permits could face major modifications of permit limits and other restrictions.
A Bit of History
Airports and air carriers are required by FAA regulations to apply deicing and anti-icing chemicals to airplanes and runway surfaces under certain conditions for safety. Chemicals used for deicing and anti-icing vary, but they share the common problem of contributing, when discharged to a water body with stormwater runoff, to water quality degradation. The environmental issue is primarily one of depleting oxygen in the water that would otherwise be available to fish, for example.
For aircraft deicing, the most commonly used substances are ethylene glycol or propylene glycol. The most common pavement deicers are potassium acetate, sodium acetate, sodium formate, or urea. The means used to apply deicing materials vary from airport to airport, as do those employed to prevent, capture, or otherwise control the residue or excess deicing chemicals which mingle with rain and snow and eventually with stormwater runoff to the airport's storm drains. Some facilities discharge all or part of that runoff to a public sanitary sewer system; in many other cases, the runoff simply washes untreated into a nearby water body, albeit usually in a much diluted condition.
Federal law requires that deicing runoff that does reach so-called waters of the U.S. (streams, creeks, wetlands, sloughs, bays, sounds, etc.) must be covered by a state or federal National Pollution Discharge Elimination System (NPDES) permit. However, both the federal government and the many states which are delegated Clean Water Act regulatory authority have been inconsistent in enforcing that requirement.
Some ten years ago, that inconsistency precipitated a class-action lawsuit, which in turn caused some large airports to spend millions of dollars to obtain and comply with a NPDES permit for deicing. Unfortunately, due to the complexities of airport operations, weather, and technical challenges in designing control methods, some airports have expended a great deal of money — only to discover they are still unable to consistently comply with permit limitations.
Local conditions in which airports operate vary so widely with respect to airport layout, weather, and the nature of the water that receives deicing runoff that it's impossible to identify a single control plan, or even a suite of measures, that will work in every situation. However, there are common themes that EPA hopes will be further defined through the process now underway: the Effluent Limitation Guideline process.
Because of the extremely variable nature of deicing operations and controls (not to mention the history of inconsistent enforcement), EPA some years ago indicated it would take the necessary regulatory steps to implement federal regulations known as Effluent Limitation Guidelines for deicing activities. ELGs set nationwide technology-based standards for specific industrial categories, of which airports are by EPA regulation one distinct category. (EPA has already developed and promulgated ELGs for more than 50 other industries.) Upon completion, the ELG rule may specify discharge level targets; or specific numeric limits that must be incorporated into any state or federal NPDES permit; or it could identify the technologies it believes are the most effective and viable to control or treat deicing runoff, in which case facilities will have to choose to use those technologies or demonstrate others that are equally effective.
The ELG Questionnaire
Within the last year EPA has conducted site visits to gather background information for its ELG process, but the sample represents only a small fraction of airports that conduct deicing activities. As its main source for developing the ELGs, EPA is using the questionnaire that it has now sent to airports and air carriers.
Answering the questionnaire is not optional; it is essentially equivalent to an administrative subpoena; failure to respond on time or to comply with the instructions may result in criminal fines, civil penalties, or other sanctions. As is the case with most information submitted in response to a government request, airports and air carriers are required to certify their responses — an official with the requisite level of knowledge and authority within the organization swears under penalty of perjury that the answers are true and the information in the response was obtained by qualified personnel.
EPA says it is targeting a representative statistical sample, and in fact, questionnaires were sent to some airports that probably do no deicing whatsoever. Those airports can simply report that they do no deicing or anti-icing. Airports and air carriers which do conduct deicing or anti-icing have had to answer detailed questions on:
- deicing stormwater collection and treatment systems used;
- stormwater pollutant monitoring, sampling, and analytical data;
- airfield and aircraft deicing operations and chemical usage;
- stormwater pollution prevention programs and management practices;
- detailed financial information for airport or air carrier operations.
As press time, most airports had either submitted their completed questionnaires or requested extensions, while air carriers were working on theirs. Respondents had 60 days to complete the answers — not generous, considering EPA estimates it will take an average 175 hours for an airport and 21 hours for an air carrier to complete. Depending on how readily information is available, the estimate may be fairly accurate or grossly understated.
Any facility not tracking this ELG process, or that has not aggressively attempted to quantify and control the intersection of stormwater and deicing chemicals, or that has not obtained an NPDES permit, may have had an easier time answering the questionnaire, but will eventually be subject to implementing whatever technologies EPA chooses from the information it obtains from the more proactive facilities.
Then What Happens?
EPA's original goal was to publish a proposed ELG rule in 2006; it now says it will issue a draft for comment by December 2007, and issue a final rule by September 2009. Airports and airlines familiar with the difficulty in planning, funding, and construction of deicing control infrastructure are keenly aware this is not much time.
Development of the ELGs represents the culmination of years of effort by EPA to quantify and more strictly regulate the stormwater discharge of deicing chemicals. Over the past ten years some airports have, either voluntarily or because of regulatory pressure, spent millions of dollars to deal with this expensive and technically challenging issue. Ongoing efforts by the most sophisticated and aggressive facilities will probably form the basis for systems and measures EPA will ultimately decide are technologically and financially feasible for all airports.
The most vulnerable facilities will be those which, due to a lack of knowledge or regulatory scrutiny, have been operating with no discharge permit whatsoever. Those would be well advised to conduct, sooner rather than later, a self-audit using qualified personnel acting under any applicable state environmental audit enforcement shields that may be available.
Besides representing a body of information that EPA will use to impose technology-based Clean Water Act limits on airports and air carriers, the public information in the ELG questionnaires could potentially be scrutinized to identify presently noncompliant facilities.
Further information about the ELG process can be found on EPA's website at http://www.epa.gov/waterscience/guide/airport/index.html.