Author: admin
• Wednesday, February 23rd, 2011

I have nothing against rain gauges.  It’s fun to see how much rain we actually got, instead of just checking the radio, TV or Internet to see how much the airport got.

But this essay is not about rain gauges.  Rather, it’s about HAVING TO HAVE a rain gauge.  Yes: COMPULSORY rain gauges.  Rain gauges under PENALTY OF LAW.

I don’t know about the rest of the country, but in Texas, every industry with anything outdoors must have a rain gauge.  Was this the intention of Congress when they voted in storm water regulations around 1987?  Did they want to make every industry in Texas get a rain gauge?

Certainly not.  What happened was, around 1987 somebody told Congress that there must be a lot of industrial storm water pollution, because look how dirty our lakes and streams have become.  “There oughta be a law.”

Perhaps some clear-headed ones warned that most of the storm water pollution wasn’t from industries — it was from farms and highways.  But as everyone knows, it is the Kiss of Death for anyone in Congress to mess with those lobbies!  “Let’s go after the industries: they’re sitting ducks and easy to harass.  They won’t leave the country — at least not for 20 years or so, and by then we’ll be collecting our pension.  Let’s regulate industrial storm water pollution.”  (Secretly, in their heart of darkness, the environmental lobby was gloating, “Serves ‘em right for being manufacturers.  And maybe, after we pummel the manufacturers into submission, we can slowly branch out and catch the real polluters — the farmers and drivers.”)

Surprise!  For the next five years, EPA dragged its collective feet.  After all, EPA knew it was already regulating the biggest industrial storm water polluters through the National Pollution Discharge Elimination System (NPDES).  Why go after the insignificant industries that weren’t doing any real harm?  Why inflict an injustice by going after smaller industries that were, by and large, innocent?

But our friends at the Natural Resources Defense Council and similar groups weren’t about to let EPA slide on this one.  They sued and won, and so a federal judge required EPA to issue storm water permits for every industry, nationwide, starting in 1992.

For a while, you would hear stories about EPA inspectors and engineers who thought the whole industrial storm water thing was stupid.  But slowly and surely, these “old timers” were replaced by zealous new men and women who saw industrial storm water pollution as our leading national problem — and they were going to stop it, by God.

After a few years, these EPA zealots managed to sue and/or intimidate a host of state and local agencies into being just as zealous about storm water as they were.  These state and local employees really did have something to worry about, because not following EPA instructions would cost them their jobs — not to mention a large fine and maybe even some jail time.

But there was one problem in all this:  the weather.  The truth is, no one really knows for sure when it is going to rain.  That’s why we don’t put our weather forecasters under oath: we know, and they know, that they’re just guessing.  Humankind has never actually been 100% sure that it would ever rain at any given time or on any given day.  The clouds seem to have a mind of their own, oblivious to the dictates of Congress and federal judges.  The clouds rain when they want to — usually, when we least expect.

This presents a tremendous enforcement problem:  after all, we’re implementing a federal law, passed by the most powerful legislature in human history, the United States Congress.  But how does a government agency capture a storm water sample from a suspected polluter if no one can be sure when it will rain?

For a sanitary sewer pipe, if we suspected that an industry was dumping paint down the pipe, we could put a $1,000 sampling machine near the pipe, run a hose down the pipe, and suck at intervals until we found some pollution.

But it’s usually not a sewer pipe — it’s a driveway, or a pad, or a ditch, or a creek, or a channel.  The only way to get a sample is to require someone already on site — usually a highly paid manager or technician — to go out in the rain (assuming there’s no tornado or lightning hazard), put a cup in the temporary stream of water, and take the cup inside for evaluation.  Umbrellas optional.

So the enforcement problem becomes,  how do you actually make the guy go out in the rain and take the sample?  After all, he is a highly paid manager or technician, and he probably has something else that he is supposed to be doing besides enforcing your storm water regulations on himself.

This problem is compound by the fact that in Texas, and maybe in some other states, one city block will get a downpour while the next block over is dry as a bone.  So the managers and technicians can say — many of them truthfully — “It just didn’t rain this quarter, and that’s why we didn’t get a sample.”

How do we find out if they’re telling the truth?  And how do we make sure they’re not ignoring some rain that occurred while they were away from a window?

Fortunately, we have developed a technology for that:  the rain gauge.  Since 2006, every industrial site in Texas — and maybe some other states, and maybe even all the states — must have a Rain Gauge.

But that’s not all.  A Rain Gauge is pointless without a Rain Gauge Log.  And you have to make an entry in the Log at least once a week if it doesn’t rain, and every day when it does rain.  And if there’s more than 1/10 inch following 72 hours of readings below 1/10 inch, you better have a good reason why you didn’t go out and get a sample during the first 30 minutes of flow — not the first 30 minutes of rain: it has to be the first 30 minutes of flow.  Maybe you can say it rained before you got to work, or over the weekend.  Maybe there was too much lightning.  Maybe a tornado or two.  Or maybe you actually got a sample.  Whatever.

My point is, Congress and its subordinate agencies, all the way down the chain, and most of them through no fault of their own, are putting millions of decent people through this meaningless ritual even though they have done nothing wrong.

No inspector has ever said, “Aha!  I caught a sample at the edge of your property and there was pollution in it.”  No, that never happens, and it never will, because no one knows when it will rain on a specific site.  So the manager or technician has to keep a Rain Gauge, and write in a Rain Gauge Log, and take quarterly samples, or record why he didn’t get a sample — forever.

Yes, forever.

Or at least until the collapse of the Land of the Free and the Home of the Brave — not conquered by an external enemy, but overwhelmed by the undying, ever-expanding, quivering blob of industrial regulation.

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