10
SSIs under the incorrect section of the Clean Air Act (CAA)
and that EPA used incomplete and flawed data to establish
SSI emissions limits in the final rule. NACWA will ask the
court in its lawsuit to vacate EPA’s final SSI regulations and
order the Agency to develop new emissions limits for SSIs
under the appropriate section of the CAA that allows for
cost considerations to be taken into account. Many of the
arguments that NACWA will make to the court will be similar
to the arguments outlined in the Association’s administrative
petition for reconsideration of the SSI rule filed with EPA. In
additional to filing its own challenge to the SSI rule, NACWA
has also intervened in a number of related challenges filed by
environmental activist groups to the rule to ensure that the
interests of the Association and its members are protected.
Additionally, NACWA plans to request that the court issue
a judicial stay of the final SSI rule to protect Association SSI
members from making unnecessary capital expenditures to
upgrade their SSI units while the court challenge is pending.
NACWA anticipates substantive briefing in the case to occur
during fall 2011, with the court issuing a decision in spring or
summer 2012.
In addition to the SSI rule challenge, NACWA also filed a chal-
lenge in May 2011 to EPA’s final definition of solid waste rule.
The solid waste rule provides a critical regulatory foundation
for the SSI rule by defining any biosolids that are incinerated
as a non-hazardous solid waste. NACWA’s lawsuit challenges
that determination and argues that Congress never intended
for biosolids to be treated as a solid waste under federal solid
waste or clean water laws. NACWA is also concerned about
the solid waste rule’s potential impacts on other forms of bio-
solids management, as well as certain wastewater treatment
plant operations. The litigation provides an important op-
portunity to address those issues and protect all clean water
agencies from additional regulatory and economic burdens as
a result of the EPA’s solid waste determination. The litigation
schedule for the solid waste rule is expected to follow that of
the SSI rule, with briefing occurring in fall 2011 and a decision
from the court in 2012.
All of NACWA’s legal SSI advocacy efforts are being supported
by the Association’s Sewage Sludge Incineration Advocacy
Coalition (SSIAC), formed in March 2011. All municipal clean
water utilities that operated SSI units, including both NACWA
members and nonmembers, were invited to join the SSIAC,
and over 40 utilities from around the nation have become
coalition members. NACWA is grateful to all SSIAC members
for their support and looks forward to growing the coalition
even more over the coming year.
NACWA Pursues Legislative Strategy to
Urge EPA to Abandon SSI Rule
At the same time as NACWA pursues relief in court, the As-
sociation is also pursuing support within Congress to address
what it considers to be EPA’s overreach in promulgating
rules for SSIs under the wrong section of the CAA. NACWA
received support for its efforts from Senator James Inhofe
(R-OK), Ranking Member of the Senate Environment & Public
Works Committee, who sent a letter in December to EPA
urging them to reissue hazardous air emission standards for
SSIs under the more appropriate section of the CAA. NACWA
continues to pursue support in Congress for its efforts and is
considering legislation to overturn EPA’s decision. The Asso-
ciation’s primary legislative strategy dovetails its legal strategy
informing Congress that EPA exceeded its legal authority
established by the Clean Water Act which clearly requires that
the disposal of sewage sludge be regulated according to CWA
§405; ignored clear language Congress included in the Solid
Waste Disposal Act (SWDA) establishing the domestic sewage
exclusion; and violated the specific requirements of the Clean
Air Act (CAA) which specifically provide for regulation of any
hazardous air emission standards from Publicly-Owned Treat-
ment Works under §112 of that Act. NACWA anticipates
broad bi-partisan support in Congress for these efforts.
Energy and Climate Issues Continue on
NACWA’s Advocacy Agenda
Although Congress was not able to enact comprehensive
climate and energy legislation, the nation’s capital did move
forward on greenhouse gas reductions on the regulatory front
within the framework of the Clean Air Act (CAA).
Advocacy on Greenhouse Gas
Emissions Benefits Utilities
As the U.S. Environmental Protection Agency’s (EPA) green-
house gas (GHG) Tailoring Rule continues to incrementally
bring facilities into the Clean Air Act (CAA) Title V and Preven-
tion of Significant Deterioration (PSD) permitting programs,
NACWA’s advocacy on biogenic emissions has benefited
utilities by significantly reducing the amount of emissions
that are counted towards the permitting thresholds of these
programs. The Tailoring Rule went into effect at the beginning
of 2011, but it did not address how biogenic emissions should
be treated under the rule. Biogenic GHGs are usually consid-
ered part of the natural carbon cycle and are exempt from all
major regulatory and policy programs, including the Intergov-
ernmental Panel on Climate Change (IPCC) and California’s
cap-and-trade program.
EPA proposed a rule in March 2011 to defer biogenic emis-
sions from CAA programs for three years while it continues to