» Clean Water Current Archive

August 28, 2009

NACWA Tracking Development of Florida Nutrient Criteria, Legal Action Possible

NACWA continues to follow ongoing events in Florida regarding EPA’s development of nutrient criteria and may join in a potential legal challenge being considered by the Florida Water Environment Association.  In 2008, several environmental groups filed a lawsuit against EPA alleging that it had failed to develop numeric nutrient criteria for Florida as required by the federal Clean Water Act (CWA).  The parties to the lawsuit then began discussions leading to a settlement agreement earlier this month; but that agreement has not yet been entered by the court.

On Aug. 25, the Florida Water Environment Association Utility Council, although not a party to the agreement, filed a motion to intervene in the lawsuit and asked the court to delay entering the settlement agreement.  This would allow the Utility Council to challenge EPA’s underlying determination that new or revised water quality standards for nutrients are necessary to meet CWA requirements in Florida.  The EPA determination was made in January 2009 in a letter from Benjamin Grumbles, then the EPA assistant administrator for water.   The Utility Council filed a 60-day notice with EPA Aug. 14, indicating its intent to challenge the Grumbles determination letter and requested that the court hold off on entering the consent decree until the challenge is made.  NACWA is preparing to join the Utility Council in discussions with EPA to revoke the Grumbles determination and to take any legal action if necessary.  Additional information regarding this case can be found on NACWA’s Key Cases webpage.  NACWA will continue to track this important issue and report on any developments.

EPA Inspector General Urges EPA to Hasten Numeric Nutrient Standards
In a related development, the EPA Inspector General (IG) released a report Aug. 26 calling on the Agency to accelerate the adoption of numeric nutrient water quality standards.  The report concludes that EPA’s reliance on states to develop water quality standards for nutrients is not working and recommends that the Agency take the lead in developing the necessary criteria.  NACWA is reviewing the report and believes its conclusions will make the Association’s involvement in the Florida nutrient matter all the more important since the Florida development process could become a model for the rest of the country.  Additionally, the IG report may bolster the 2007 petition filed by the Natural Resources Defense Council (NRDC) and other environmental groups on nutrient control to the extent the petition makes the case that EPA needs to step up its efforts.  The IG report, however, does not address NRDC’s recommendations that the secondary treatment standard apply to nutrient removal.  These developments also demonstrate the importance of NACWA’s legal and technical analyses of nutrient issues in response to the petition, and the Association will be sharing the results of these analyses with EPA soon.

NACWA, OECA Discuss Clean Water Act Enforcement Action Plan

Members of NACWA’s Board and committee leadership held a conference call with EPA’s Office of Enforcement and Compliance Assurance (OECA) Aug. 24 to provide the perspective of the municipal clean water community in developing an action plan for Clean Water Act (CWA) enforcement.  The call was held in response to a July 2 memorandum from EPA Administrator Lisa Jackson calling for increased transparency and effectiveness in CWA enforcement actions, and a July 29 follow up letter from NACWA to EPA requesting to participate in the development of the new enforcement initiative.

During the call, NACWA expressed concern with EPA’s current approach that measures success based solely on the number of enforcement actions carried out and the dollar value of complying with them.  NACWA said such an approach is not sustainable and does not prioritize improvements to water quality.  Rather, OECA should work with NACWA to develop an enforcement approach that focuses more on measurable water quality improvement and public health.  NACWA also emphasized that enforcement activity should be tailored to meet the water quality needs of a particular area and not rely on a “one-size-fits-all” national approach.  Additionally, the financial resources of a community would be more wisely spent on innovative projects that result in measurable water quality improvements and not directed towards enforcement action with minimal environmental benefits.  NACWA also stressed the importance of accurate water quality data in making CWA enforcement actions more transparent for both regulated facilities and the general public.

NACWA expressed its interest in working with OECA as both a partner and a resource during development of any new CWA enforcement program in an effort to ensure the perspectives of the municipal clean water community are incorporated.  The Association is also compiling written comments received in response to Legal Alert 09-02 regarding development of the CWA enforcement action plan to submit to OECA next week.

NACWA Briefs EPA Air Office on Incineration, Biosolids Management

NACWA briefed key officials from EPA’s Office of Air Quality Planning and Standards (OAQPS) in Research Triangle Park, N.C., on Tuesday regarding the Agency’s ongoing work to develop maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs) under Section 129 of the Clean Air Act (CAA).  Despite previous determinations that SSIs are more appropriately regulated under Section 112 of the CAA, a 2007 DC Circuit ruling, that severely limited EPA’s discretion when determining how to regulate incinerators, has prompted EPA to change course on SSIs.

At the center of this issue is an ongoing rulemaking to define solid waste under the nonhazardous waste provisions of the Resource Conservation and Recovery Act (RCRA).  To satisfy the DC Circuit ruling, EPA plans to use the new definition to determine how certain incinerators will be regulated under the CAA – units burning solid waste will be regulated under the more onerous Section 129, while those units burning legitimate fuels — i.e., not solid wastes — will be regulated under Section 112.  EPA has indicated its preliminary finding that sewage sludge bound for incineration is a solid waste, and the OAQPS staff are moving forward with their efforts to develop Section 129 standards for SSIs based on this preliminary determination. 

During the meeting Tuesday, NACWA Biosolids Management Committee Co-Chair Bob Dominak, with the Northeast Ohio Regional Sewer District, presented a comprehensive overview of biosolids management and a detailed look at incineration, how the basic units operate, how the Part 503 regulations were developed, and how SSIs are already regulated by the Clean Water Act and various provisions in the CAA.  NACWA plans to continue its dialogue with OAQPS staff to ensure any standards developed are based on the most current information while it maintains an aggressive advocacy effort at EPA Headquarters to persuade policy makers that regulation of sewage sludge as a solid waste is inappropriate and that control standards under Section 129 would be duplicative and overly burdensome on many SSIs. 

Green Infrastructure Legislation Takes Shape in House

NACWA met with House staff this week to review a draft green infrastructure bill that closely mirrors legislation crafted by NACWA and other groups.  The bill would establish several centers of excellence to disseminate green infrastructure technology across the nation; authorize a new federal grants program to support design, implementation, and maintenance of green infrastructure; and require EPA to create a program to promote and integrate green infrastructure into existing regulatory programs.  Other groups that collaborated with NACWA in drafting the bill include the Natural Resources Defense Council (NRDC), American Rivers, Clean Water Action, the Low Impact Development (LID) Center, the Center for Neighborhood Technology, and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA).  NACWA will continue to work with Congress and other interested parties on this draft legislation and will share a copy of the bill with the membership once it has been formally approved by the Office of Legislative Counsel.  NACWA anticipates the bill will be introduced before the end of the year and has been doing significant work to ensure it has solid support from key representatives in the House.