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NACWA Files Opening Brief in Litigation Over Final EPA SSI Rule



For Immediate Release:  July 25, 2012

Contact:  Elizabeth Striano
Director, Social Media & Communications
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NACWA Files Opening Brief in Litigation Over Final EPA SSI Rule

Washington, D.C. — The National Association of Clean Water Agencies (NACWA) is challenging EPA’s final sewage sludge incinerator (SSI) rule on both its legal and technical basis and is requesting that the court vacate the rule as a violation of EPA’s authority under the Clean Air Act (CAA).

NACWA filed its opening brief icon-pdf in litigation of the SSI rule (76 Fed. Reg. 15372; March 21, 2011) on July 24 with the U.S Court of Appeals for the District of Columbia Circuit.

The case, NACWA v. EPA, was initiated by NACWA last year in response to the final SSI rule, and marks one of the largest legal initiatives in the Association’s history. EPA published the SSI rule in March 2011, setting new and extremely stringent air emissions limits for SSI units. The rule will have significant operational and economic effects on clean water agencies that rely on SSIs to manage their sewage sludge in a safe and environmentally responsible manner.

“With this opening brief, NACWA is continuing its fight to ensure that municipal clean water agencies and their local communities maintain the ability to choose the sludge management option that works best for them, including incineration,” said Ken Kirk, Executive Director of NACWA. “EPA’s actions on the SSI rule are completely inconsistent with the plain language of the Clean Air Act and with Congress’s intent to maintain the Clean Water Act as the primary statutory authority governing clean water issues and sewage sludge management. This EPA overreach will impose unnecessary regulatory and financial burdens on municipal clean water utilities.”

NACWA’s brief argues that there are two major categories of fatal errors in the SSI rule that require it to be vacated by the court. The first category focuses on EPA’s exceeding of its statutory authority and violating Congressional intent in the final rule by regulating SSIs under the wrong section of the CAA.

Specifically, the brief focuses on EPA’s decision in the final rule to regulate SSIs under Section 129 of the CAA, which requires unnecessarily strict and costly air emissions standards and siting analyses, rather than under the more flexible requirements of CAA Section 112. The plain language of Section 112 clearly directs all emissions from publicly owned treatment works (POTWs)—including SSIs—to be regulated under that section.

The second category of errors in the SSI rule outlined in the brief focuses on EPA’s use of inadequate data to develop the SSI emissions limits, in violation of the CAA’s minimum data requirements. Under this line of argument, NACWA’s brief contends that even if EPA had the authority to regulate SSIs under the §129 emission standards, the rule still violates the CAA by setting pollutant limits using data from fewer than the statutorily mandated number of units.

“Our argument is not that SSIs shouldn’t be regulated under the Clean Air Act,” said Kirk. “Instead, our argument is simply that SSIs should be regulated under the appropriate section of the Act, as directed by Congress, to ensure that SSI emission limits are set in a more flexible manner which acknowledges the unique environmental and public health role of POTWs. EPA’s illegal SSI rulemaking under Section 129 will impose unnecessary costs on municipal clean water utilities and their local ratepayers at a time when communities are already struggling to meet their existing regulatory and financial obligations.”

More than 100 communities nationwide rely on sewage sludge incineration, and the new SSI rule will impose significant costs on almost all of them, either to upgrade their incineration units to meet the new standards or to abandon incineration and find a new method of solids management.

NACWA has also filed a legal challenge to EPA’s related Non-Hazardous Secondary Materials (NHSM) rule, which provides a critical regulatory foundation for the SSI rule by defining sewage sludge that is incinerated as a solid waste. That legal challenge is currently in abeyance pending EPA’s reconsideration of the NHSM rule.


NACWA represents the interests of more than 300 public agencies and organizations that have made the pursuit of scientifically based, technically sound and cost effective laws and regulations their objective. NACWA members serve the majority of the sewered population in the United States and collectively treat and reclaim more than 18 billion gallons of wastewater daily.

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