» Clean Water Current Archive

September 11, 2009

NACWA Takes Priority Clean Water Issues to EPA Assistant Administrator Silva

NACWA and several members of its Executive Committee met with the Peter Silva, the new EPA assistant administrator for water, and key EPA staff yesterday, to welcome him to his new position and to discuss the priority advocacy issues of the clean water community.  In advance of this meeting, NACWA sent Silva a letter  outlining the NACWA’s top concerns, including nutrient issues, peak excess flow blending, biosolids (with a focus on EPA’s sewage sludge incineration initiatives), water/wastewater security jurisdiction, and the need to move toward a more holistic watershed approach.  The meeting was particularly timely as it gave NACWA an opportunity to urge Silva to weigh in on the efforts by EPA to potentially define biosolids as a solid waste, which could lead to significantly and more costly, albeit unnecessary, regulations on SSIs (see related article below).  It is anticipated that the Agency may propose a rule as early as next week.  NACWA also learned that EPA is very aware of, and focused on, the issue of chemical security and the question of whether EPA or the Department of Homeland Security (DHS) should have jurisdiction over publicly owned treatment works (POTWs) (see related article below).

Many of these issues have been the subject of detailed letters to Silva and key EPA staff over the past several weeks, and Silva was very familiar with them.  NACWA asked Silva to consider a monthly or regular meeting with representatives of the municipal water community, similar to monthly “coffees” previous administrations have routinely held with the industrial sector.  Silva expressed interest in this idea, and the Association believes a routine municipal water issue-based discussion with the Agency’s top water official will help ensure the voice of the clean water community is heard on a consistent basis.

NACWA Comments to Science Board on Problems with EPA Nutrient Criteria Guidance

NACWA raised serious concerns at a meeting this week of the EPA Science Advisory Board’s Ecological Processes and Effects Committee about new guidance developed by EPA’s Office of Water and Office of Research and Development on statistical methods for deriving numeric nutrient criteria.  NACWA submitted comments  to the committee noting that EPA’s Empirical Approaches for Nutrient Criteria Derivation , while providing an overview of several statistical methods that could be used in criteria derivation, falls well short of actually enabling states to characterize the effects of nutrients in the nation’s rivers and streams and develop meaningful nutrient criteria.  NACWA highlighted the important management decisions and major capital investments that would need to be made at the nation’s clean water agencies to help reduce nutrient over-enrichment as a result of these criteria and stressed that we must be able to ensure that these investments will actually result in significant water quality improvements.

NACWA is particularly concerned about EPA’s use in the guidance of a variety of statistical tools, including a new, highly controversial approach called conditional probability, to link nutrient levels to in-stream impacts.  EPA would use these tools to directly link nutrient levels to impacts on macroinvertebrates.  Historically, nutrient criteria have focused on linking nutrient levels to plant growth, not to aquatic life, largely because many external factors that can also affect the health of aquatic life.  Initially used in several total maximum daily loads (TMDLs) in EPA Region III, the statistical methods are now being proposed for application nationwide in the EPA guidance under review by the SAB Committee.  NACWA and others who commented to the SAB Committee noted that simply showing that two variables are correlated does not mean they have a causal link between them.  Developing nutrient criteria requires analyses that are environmentally significant, not just statistically significant.  The SAB Committee’s deliberations continued through Friday.  Discussions during the meeting indicated that committee members were also concerned that EPA’s document failed to address the complex relationships between nutrient levels and in-stream impacts, and NACWA expects the committee to recommend major revisions to the guidance.  It is anticipated that the committee will meet once more via teleconference before issuing its recommendations.

NACWA Requests Meetings with Water, Air and Waste Office Heads on Incineration

NACWA outlined detailed arguments against the regulation of sewage sludge incinerators (SSIs) under Section 129 of the Clean Air Act in a Sept. 9 letter  to the assistant administrators for EPA’s water, air, and waste offices.  The letter also highlighted the major consequences if EPA decides to define solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) to include sewage sludge, and requested a meeting with all three offices to discuss the issue further.  Despite previous determinations that SSIs are more appropriately regulated under Section 112 of the Clean Air Act (CAA), a 2007 ruling by the DC Circuit that severely limited EPA’s discretion when determining how to regulate incinerators prompted EPA to change course on SSIs.  To meet its obligations under the DC Circuit ruling, EPA initiated a rulemaking to define solid waste under the nonhazardous waste provisions of RCRA.

EPA plans to use the new definition to determine how certain incinerators will be regulated under the CAA — units deemed to be 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’s preliminary finding is that sewage sludge bound for incineration is a solid waste.  NACWA’s letter was developed using Targeted Action Funds to underscore how such a decision would undermine the carefully constructed balance among the regulatory programs implementing the Clean Water Act, including the Part 503 biosolids regulations, the CAA, and RCRA.  While EPA is still planning to issue by Sept. 15 a proposed definition of solid waste under Subtitle D of RCRA, negotiations to extend key court-ordered deadlines for developing incinerator regulations may delay the Agency’s timetable.  NACWA will work to set up meetings with the key EPA offices involved and will alert the members to any developments.

Ninth Circuit Releases Adverse Decision in Biosolids Case

This week the U.S. Court of Appeals for the Ninth Circuit released an adverse decision  in Los Angeles et al. v. Kern County, a case involving a ban on the land application of biosolids, ruling that the plaintiffs did not have sufficient legal standing to challenge the ban based on the dormant Commerce Clause of the U.S. Constitution.  The case involves a challenge by NACWA member agencies the City of Los Angeles, the Orange County Sanitation District, and the Los Angeles County Sanitation District to a ban on the land application of biosolids enacted by Kern County, Calif., in 2006.  The court determined the because the Kern County ban on its face does not seek to regulate interstate commerce, the plaintiffs did not have sufficient standing to challenge the ban under the Commerce Clause.  However, the appeals court did not address a separate argument based on California state law made by the plaintiffs, and the lower court ruling enjoining the ban based on the state law argument still stands.  As a result of the Ninth Circuit decision, the case has been remanded to the lower court for further consideration.  NACWA filed a brief in the case in June 2008 supporting its members and arguing that the ban should be overturned.  NACWA is reviewing the court’s opinion and will be distributing a Legal Alert with a more detailed analysis of the decision to the Association’s membership next week.   More information on the case can be found on the Litigation Tracking page of the Association’s website.

NACWA Urges DHS, EPA to Support Leaving Chemical Security Oversight at EPA

NACWA sent a letter  Sept. 10 to EPA Administrator Lisa Jackson and to Janet Napolitano, secretary of the Department Homeland Security (DHS), urging them to support legislative efforts ensuring that EPA retains jurisdiction over security related matters at the nation’s POTWs and community water systems.  Congress is working to reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS), which are scheduled to expire at the end of October.  In June, the House Homeland Security Committee approved the Chemical Facility Antiterrorism Act of 2009 (H.R.2868) which places the security of wastewater treatment facilities under the auspices of DHS.  At the same time, Rep. Henry Waxman (D-Calif.), chairman of the House Energy and Commerce Committee, has introduced the Drinking Water System Security Act of 2009 (H.R. 3258), which seeks to place the protection of drinking water facilities at the EPA, accordance to an agreement he has with  Rep. Bennie Thompson (D-Miss.), chair of the House Homeland Security Committee.

The Obama administration is in the process of determining its position on this issue by considering the policy implications in these proposals.  NACWA’s letter highlights the problems that a fragmented or duplicate authority will create for local communities.  Specifically, NACWA said that such a policy would likely place a greater burden on jointly owned and managed water and wastewater utilities and could increase costs to ratepayers with little noticeable enhancement in security or discernable public benefit.   Additionally, NACWA highlighted the fact that the EPA, as the designated sector-specific agency for the water sector, has long-standing expertise in providing security oversight to these facilities.  The House Energy and Commerce Committee was scheduled to have a hearing on H.R. 3258 on Sept. 11, but has postponed it.  NACWA will continue to follow this matter, providing updates as they occur.