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ACWA obtained a limited legal victory on Aug. 20 when
the U.S. Court of Appeals for the District of Columbia
Circuit issued a
remanding portions of the U.S.
Environmental Protection Agency’s (EPA) controversial
sewage sludge incineration (SSI) rule back to the Agency for addi-
tional work. The ruling 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.
Lack of Technical Justifications Cited
Although the court did not agree with all
of NACWA’s arguments, it did side with the
Association in finding that EPA failed to pro-
vide proper technical justifications and expla-
nations for how emission limits were set. The
decision also reaffirms a broader principle
that EPA rules and regulations must be based
on sound science and data.
NACWA served as lead plaintiff in the case and set forth two main
challenges to the rule: 1) a challenge to EPA’s statutory authority
for promulgating the rule, and 2) a challenge to EPA’s technical ba-
sis 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 the technical arguments. The court
further remanded a number of technical issues back to EPA for ad-
ditional consideration.
EPA to Develop Revised Rule
The court remand of technical issues to EPA will prove to be valu-
able to NACWA and its members, both in the context of the SSI
rule – but also more broadly in terms of the Agency’s future rule-
making efforts. As a result of the remand, EPA must develop a
revised rule with better scientific justifications. This will provide
NACWA with an additional opportunity to advocate for a change
in the rule’s emission limits.
On a broader level, the decision affirms
NACWA’s long-standing position that all en-
vironmental regulations must go through a
thorough, deliberative and transparent pro-
cess to ensure that they are based on valid
data, science and economic principles. The
decision to remand key portions of the SSI
rule also sends a clear and unequivocal mes-
sage to EPA that the rulemaking process can-
not be circumvented.
NACWA’s participation in the case was funded by voluntary con-
tributions from members with SSIs who came together as part of
the Association’s Sewage Sludge Incinerator Advocacy Coalition
(SSIAC). NACWA is extremely grateful to the SSIAC for its sup-
port and looks forward to working with its member utilities and
EPA to move forward to achieve a rule that is both scientifically-
based and technically-sound – and does 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
NACWA Secures Partial Remand of SSI Rule
TMDL Case
cifically noted the role of trading in achieving the targeted pollution
reductions. The court noted that “individual sources are free to trade
pollution amounts without the need to revise or adjust the TMDL al-
locations.” This acknowledgement of trading within a CWA program
is among the first of its kind in federal case law and can be helpful in
defending trading programs from legal challenge, including a sepa-
rate currently pending federal case attacking the Bay TMDL’s trading
program, in which NACWA has intervened.
Nutrient Allocations Protected
For NACWA members within the Chesapeake Bay watershed, this rul-
ing protects the TMDL nutrient allocations that have already been
assigned to municipal point sources and removes the risk of even
higher nutrient removal requirements in the event of the loss of the
watershed approach. This allows utilities within the Bay watershed
to proceed with their existing TMDL implementation plans. For
NACWA members outside the Chesapeake Bay region, this decision
provides key legal backing for a holistic watershed approach and can
serve as valuable legal precedent to support similar approaches else-
where in the country.
NACWA, the Maryland Association of Municipal Wastewater
Agencies (MAMWA), and the Virginia Association of Municipal
Wastewater Agencies (VAMWA) jointly intervened as defendants in
the litigation in October 2011 to represent the municipal clean water
community – and to ensure that EPA’s ability to address nonpoint
sources and administer a holistic watershed approach through the
TMDL program was upheld. NACWA is very pleased with the court’s
ruling, and appreciates the opportunity to work with MAMWA and
VAMWA in achieving this outcome. Additional information on
the case and NACWA’s involvement is available on the Association’s
webpage.
