Advisories & Insights

The Environmental Protection Agency's ("EPA") long-running effort to tighten regulations for the discharge of stormwater runoff that contains airport or aircraft deicing material is about to enter a new phase that could significantly increase the cost, infrastructure and regulatory scrutiny for any airport or airline that conducts deicing operations. Airports that conduct deicing without a state or federal Clean Water Act discharge permit specifically covering deicing chemicals will be identified, and airports with existing permits may face significant modifications of the terms and limits in those permits.

Airports and airlines are required by Federal Aviation Administration regulations to apply deicing and anti-icing chemicals to airplanes and runway surfaces under certain conditions for the safety of the traveling public. The chemicals used for deicing and anti-icing vary somewhat, but they share the common problem of contributing, when discharged with stormwater runoff, to water quality problems in the receiving waters. Primarily, the issue is one of depleting oxygen in the water, but there may be toxic aspects to some of the deicing chemicals. The most commonly used substances are ethylene glycol or propylene glycol, alone or in combination with calcium magnesium acetate, sodium acetate, sodium formate, or urea. Different airports use different methods of applying deicing materials and vary widely in their sophistication in dealing with the residue or excess deicing material that eventually becomes part of the airport's stormwater runoff as rain falls and snow and ice melts, washing the material into the airport's storm drains and thereafter to either sanitary sewer systems or surface water.

The EPA requires that deicing runoff that reaches surface waters be subject to a National Pollution Discharge Elimination System ("NPDES") permit. However, both the EPA and the states which are delegated Clean Water Act regulatory authority have been inconsistent in enforcing that requirement. Roughly ten years ago that inconsistency precipitated a class-action lawsuit, which in turn caused many (mostly larger) airports to spend millions of dollars to obtain and comply with a NPDES permit for deicing, with mixed success. The local conditions in which the airports operate vary so widely (weather, means of deicing or anti-icing application, chemicals used, and conditions of receiving waters) that each airport will have a different method of handling deicing runoff, although there are some common themes.

For similar reasons – inconsistency in water quality permit coverage, conditions and enforcement – and because of a settlement agreement in a lawsuit filed by a national environmental group, the EPA some years ago indicated it would be implementing Effluent Limitation Guidelines ("ELGs") for deicing activities, under the authority of federal Clean Water Act. ELGs are regulations that establish 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.) When completed, the ELG rule may contain discharge level targets or numeric discharge limits that must be incorporated into any NPDES permit, or it may specify certain technology for treatment of deicing runoff, or a combination of those or other measures the EPA determines are effective and technologically feasible.

To obtain information for developing the ELGs, the EPA has conducted site visits for certain airports, but only a small fraction of airports that conduct deicing activities. As the primary source of information, the EPA is using a questionnaire that it will send in the Spring of 2006 to a list of approximately 150 airports. The questionnaire is issued by the EPA using its authority under Clean Water Act § 308, meaning that failing to respond, late filing, or failure to comply with the instructions may result in criminal fines, civil penalties or other sanctions. In addition, respondents are required to certify their responses, so an official with the requisite level of knowledge and authority within the organization will essentially swear under penalty of perjury that the answers are true and the information in the response was obtained by qualified personnel.

The EPA states that it is sending the questionnaire to a representative statistical sample, and in fact the sample is of all airports, not just those that conduct deicing. (Airports in Hawaii and Puerto Rico are on the list!) Airports that do not conduct deicing or anti-icing can so indicate and do not have to fully complete the questionnaire. Airports that must complete the questionnaire but which for one reason or another have not paid close attention to this regulatory effort will be stunned at the scope and depth of the questionnaire. Among many other things, respondents will have to answer detailed and numerous questions on:

The EPA's present goal is to publish a proposed ELG rule by October, 2006, which appears to be unrealistic. In any event, upon receipt of the ELG questionnaires the EPA will process the information it has obtained and presumably will develop the ELGs for deicing. The EPA does have the discretion to determine that ELGs are technologically infeasible or cost prohibitive, but it is unlikely the EPA would decline to promulgate ELGs. The EPA states that before it publishes the proposed ELG rule, it will hold an information meeting. Except for information submitted to the EPA as Confidential Business Information ("CBI"), the responses to the questionnaires are public information, which may pose a particular problem for any airport that is conducting deicing activities without a NPDES permit. For such facilities in particular, it is critically important that the responses to the questionnaire are prepared and reviewed by people who are familiar not just with the operational, environmental and technical aspects of aircraft and airport deicing and anti-icing, but also the associated legal issues and the ELG process. It may also be advisable to assert CBI protection on some information, which a qualified consultant or attorney can help ensure is handled properly.

The development of the ELGs represents the culmination of many years of effort by the EPA to quantify and more strictly regulate the stormwater discharge of deicing chemicals. Over the last ten years some airports have taken it upon themselves to deal with this extremely expensive and technically challenging issue, and those facilities may be ahead of the regulatory curve. The measures for management, control, and treatment that those airports have implemented will form the basis for what the EPA ultimately decides is technologically and financially feasible, yet other airports will find such measures to be profoundly challenging. The most vulnerable facilities will be those which, due to a lack of knowledge or regulatory scrutiny, have been operating with no discharge permit – they will face a painful and steep learning curve that will begin with receipt of the ELG questionnaire.

Further information on this process, including copies of the airport and airline ELG questionnaires, and a list of facilities that will receive them, can be found on the EPA's website at http://www.epa.gov/ost/guide/airport/index.html.

Mark Stermitz, an attorney with Bullivant Houser Bailey PC, has the experience to provide the comprehensive advice and legal assistance on environmental issues related to deicing and the ELG questionnaire. Mark has represented a large public airport on the complex legal issues associated with permit compliance, strategic direction and project development for deicing treatment and control infrastructure. Mark is an active member of the American Association of Airport Executives ("AAAE"), which has worked directly with EPA on the deicing ELGs. Mark spoke to the 2005 AAAE annual Deicing and Stormwater Conference in Washington, DC on the topic of using attorneys early in complex projects to avoid greater costs down the road. Mark can by reached at 503.499.4461 or by visiting www.bullivant.com.