» Clean Water Current Archive

August 23, 2013

NACWA Secures Sewage Sludge Incinerator Rule Remand in Court Ruling

NACWA secured a partial legal victory Aug. 20 when a federal appeals court issued a decision    in the Association’s challenge to EPA’s Sewage Sludge Incinerator (SSI) rule, agreeing with NACWA that EPA’s technical basis for the rule was flawed and remanding the regulation back to the Agency for changes. The ruling from the U.S. Court of Appeals for the District of Columbia Circuit caps a two-and-a-half year legal effort led by NACWA to push back on the SSI rule and secure more environmentally and economically appropriate emission limits for SSI units. NACWA also distributed a press release and a blog post this week applauding the decision.

The court’s ruling marks an important partial victory for NACWA and its SSI members in the case, upholding NACWA’s position that EPA must gather and analyze the appropriate data to reassess, justify or potentially revise the SSI rule. NACWA set forth two main challenges to the rule in the lawsuit: a challenge to EPA’s statutory authority for promulgating the rule, and a challenge to EPA’s technical basis for the emission standards in the final rule. In the decision, the court sided with EPA on the statutory argument, but sided with NACWA on the majority of our technical arguments. The court further remanded a number of technical issues back to EPA for additional consideration. This means the court is telling EPA that many of its technical justifications in the rule are not legally adequate and the Agency must provide additional explanations for the emission limits in the SSI Rule or develop new emission limits entirely.

The fact that the court remanded the rule back to EPA on the technical issues is an important win for NACWA and its SSI members for two reasons: first, it means the court agreed with the Association that EPA’s technical explanations for how it set the emission limits were not sufficient, suggesting that the current limits may be fundamentally flawed if EPA cannot come up with better justifications; and second, EPA must now make changes to the rule on remand consistent with the court’s direction, providing NACWA with an additional opportunity to weigh in with EPA via comments and other advocacy efforts during that process to try and get the rule’s emission limits changed.

The court’s decision also has much broader implications.  EPA is required to go through a thorough, deliberative and transparent process for any rulemaking, including in this instance for SSIs. NACWA’s primary advocacy mission is to ensure that EPA’s rulemaking process is based upon sound science and data and viable economic principles.  This ruling sends a clear message to EPA that the process cannot be circumvented or short-circuited and that NACWA will be constantly diligent in protecting the interests of public clean water agencies across the country.

NACWA’s participation in the case was funded by voluntary contributions from members with SSIs who came together as part of the Association’s Sewage Sludge Incinerator Advocacy Coalition (SSIAC). NACWA held a call with the SSIAC on August 22 to further discuss the court’s decisions and its implications, and is extremely grateful to SSIAC members for their support of this initiative.

While NACWA is disappointed the court did not agree with its statutory arguments in the case or agree to vacate the rule, the Association is pleased with the remand on the technical issues. NACWA will work with its member utilities, EPA and its new Administrator - Gina McCarthy - to move forward with the remand process as expeditiously as possible and to achieve a rule that is scientifically based, technically sound, and will not impose unnecessary costs on utilities and their local ratepayers at a time when they are already struggling to meet existing regulatory and financial obligations.

Additional information on the case can be found on NACWA’s Litigation Tracking webpage.

EPA Releases Final Ammonia Criteria

EPA released its Final Aquatic Life Ambient Water Quality Criteria for Ammonia - Freshwater 2013  yesterday to supersede the Agency’s previously recommended 1999 ammonia criteria. In 2009, EPA released draft criteria recommendations that took a two-pronged approach – one set of criteria for waters where mussels are present, and another for waters where there are no freshwater mussels. Since 2009, EPA has worked to bolster the underlying data supporting the criteria and, in doing so, has addressed many of NACWA’s concerns. In the final criteria, EPA abandoned the bifurcated criteria approach in favor of a single set of acute and chronic criterion values designed to protect waters where freshwater mussels and snails are present. EPA also published supporting documents, including Flexibilities for States Applying EPA's Ammonia Criteria Recommendations and Revised Deletion Process for the Site-Specific Recalculation Procedure for Aquatic Life Criteria, to assist states in both the adoption of the new recommended criteria into their water quality standards (addressing variances, designated use changes, and dilution allowances), and development of alternative, site-specific criteria where appropriate. For example, if freshwater mussels are not resident at a certain site, the aforementioned Revised Deletion Process for the Site-Specific Recalculation Procedure for Aquatic Life Criteria could be used to recalculate the criteria.

NACWA will provide a more detailed analysis of the final criteria in an Advocacy Alert next week. To view the criteria document and supporting information online, click here.

Representative Earl Blumenauer Seeks Input on Draft Voluntary Trust Fund Bill

Representative Earl Blumenauer (D-OR) finalized a draft this week of The Water Infrastructure Investment Act of 2013, which would establish a voluntary clean water trust fund. Under Rep. Blumenauer's proposal, the makers of water-based beverages and flushable products could receive the right to display a clean water logo on their products in exchange for a 2 to 3-cent per purchase fee. The revenue from this fee would go to the trust fund to replenish the Clean Water State Revolving Fund.

Rep. Blumenauer will be looking to NACWA and other members of the Water Infrastructure Network (WIN) to lead a congressional education campaign in September aimed at encouraging bipartisan support for the bill. The final bill is expected to be introduced in October and NACWA encourages members to send any comments on the draft to Hannah Mellman, This e-mail address is being protected from spambots. You need JavaScript enabled to view it . An overview of the bill can be found here. NACWA and WIN will be providing comments on the final draft and will keep members updated as progress on the legislation continues.

NACWA, Member Agencies Participate in Johnson Foundation Meeting on Water and Electric Utility Collaboration

NACWA and several of its member agencies participated this week in a meeting convened by The Johnson Foundation in Racine, Wisconsin on Building Resilient Utilities: How Can Water and Electric Utilities Co-Create their Future? The purpose of the meeting was to initiate dialogue about how to cultivate greater collaboration between wastewater, drinking water, and electric power utilities to find mutually beneficial solutions. As water sector utilities look to decrease electricity use, wastewater utilities to increase their energy production, and electric utilities to decrease their water usage, these efforts are too often being implemented independently of one another. Participants in the meeting discussed the opportunities for cross-sector collaboration and identified the hurdles that must be overcome to facilitate this collaboration. The Water Resources Utility of the Future initiative of NACWA, the Water Environment Federation (WEF), and the Water Environment Research Foundation (WERF) was a reference point for discussions at the meeting.

NACWA member participants included the East Bay Municipal Utility District, DC Water, the City of Vancouver, Camden County Municipal Utilities Authority, and the Austin Water Utility. A report generated from the meeting will discuss strategies, incentives, and potential actions that could advance cross-sector collaboration and improve water and energy efficiencies.

Cybersecurity, Emergency Responder Access Discussed by Water Sector Coordinating Council

The Water Sector Coordinating Council (WSCC) conducted a two-day meeting this week to discuss security and emergency preparedness for wastewater and drinking water utilities. The WSCC was joined by the Government Coordinating Council (GCC), which includes representatives from EPA and the Department of Homeland Security (DHS), for the second day of the meeting. NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and a NACWA Board member and Vice Chair of the WSCC, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, both participated in the meeting.

The work on cybersecurity for the nation’s critical infrastructure, which was set in motion by the February 12 Executive Order (EO) and Presidential Policy Directive 21 (PPD-21) was a major focus of the meeting. The overall security framework for infrastructure, the National Infrastructure Protection Plan (NIPP), is being rewritten as part of the EO and PPD-21, and the WSCC heard DHS’s plans for incorporating comments, such as those recently submitted by the WSCC, in the next draft of the NIPP. The WSCC also heard about the scope of cybersecurity threats and will be working with EPA and DHS to disseminate appropriate information to utilities.

An ongoing problem encountered by water sector utilities is the difficulty faced by utility workers that need to gain access to restricted areas after a natural disaster. While electric utility trucks seem to be given full access, water utility workers are often turned away or delayed while their status is verified. The Emergency Services Sector Coordinating Council (ESSCC) has developed an emergency responder access program that has proven useful in the Gulf Coast states. The WSCC will be working with the ESSCC to ensure that the program is more widely adopted and used by water sector utilities. NACWA will provide more information to members about this program as it develops.

NACWA Talks Nutrients, Utility of the Future at the Georgia Environmental Conference

NACWA presented this week at the Annual Georgia Environmental Conference — Georgia’s largest conference focused exclusively on environmental issues. NACWA provided an overview of its legal, regulatory and legislative advocacy on nutrient-related issues and the connection between nutrients and the need to move toward a more flexible integrated planning and permitting approach as well as toward a more implementable watershed-based approach in line with the Utility of the Future (UOTF) initiative. The presentation and related panel discussion also featured significant interest in water quality trading and the array of nutrient-related lawsuits. Several of NACWA’s Georgia members provided insightful presentations during the conference on key innovations at their facilities which are being driven by increasing regulatory pressures and a need to demonstrate value to their communities and ratepayers.

NACWA is increasingly focused on bringing the clean water community’s message on priority advocacy issues to state and regional meetings across the country and continues to expand its reach to such organizations through its Clean Water Exchange effort.

Make Your Plans Today for the National Clean Water Law Seminar

Plans are underway for NACWA’s National Clean Water Law Seminar, November 20 – 22, in historic San Antonio, Texas. NACWA's Law Seminar is the only conference of its kind focused specifically on the legal and regulatory challenges facing the municipal clean water community, and this year's Seminar promises to deliver a timely and informative program covering the hottest issues in clean water law. The topics covered at the Seminar will span the range of legal and regulatory issues impacting clean water utilities, with some of the top clean water attorneys in the country providing valuable analysis and insights that will be relevant to any attorney or public agency manager working on municipal wastewater and stormwater issues. Information to help plan your trip is available on NACWA’s website.

NACWA Blog of the Week:
Round Two— Court Says SSI Rule Needs More Work

This week’s post on The Water Voice features NACWA’s perspective on this week’s Federal Appeals Court decision on the Sewage Sludge Incinerator (SSI) Rule. The decision marked a significant victory and milestone in a multiyear regulatory and legal advocacy effort by NACWA to ensure environmentally appropriate regulation of SSIs on behalf of approximately one-third of the clean water utilities around the nation that incinerate sewage sludge in SSIs. Don’t miss a post! The Water Voice has an informative new posting each Wednesday, so subscribe today!