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NACWA filed its opening brief  yesterday in NACWA v. EPA with the U.S. Court of Appeals for the District of Columbia Circuit, completing a significant step forward in the Association’s ongoing efforts to challenge EPA’s recent sewage sludge incinerator (SSI) rule.  The lawsuit, initiated by NACWA last year, seeks judicial review of the recent SSI regulations and marks one of the most significant legal advocacy initiatives in the Association’s history.  NACWA’s brief challenges both the legal and technical basis for EPA’s final SSI rule, and requests that the court vacate the rule as a violation of EPA’s authority under the Clean Air Act (CAA).

This Advocacy Alert provides a brief background on the SSI rule and NACWA’s advocacy efforts, highlights key elements of NACWA’s opening brief, and outlines the anticipated next steps in the legal challenge.  Additional information regarding the SSI lawsuit can be found on NACWA’s Litigation Tracking web page, including other relevant pleadings and documents.

Background on SSI Rule

EPA published the final SSI Rule on March 21, 2011 (76 Fed. Reg. 15372), setting new and stringent air emissions limits for SSI units.  At the same time, EPA also finalized a separate rule with revisions to its definition of non-hazardous solid waste and for the first time identified sewage sludge that is incinerated as a solid waste.  Taken together, these two rules will have significant operational and economic impacts on clean water agencies that rely on SSIs to manage their sewage sludge in an environmentally responsible manner.  More than 100 communities nationwide rely on SSIs to manage their sewage sludge, and the new SSI rule will impose significant costs on almost all of them either to upgrade their incineration units to meet the new standards or to abandon incineration entirely and find a new method of solids management.

NACWA spent significant time and effort during the regulatory review process to push back against the SSI rule, and as a result of these advocacy efforts there were some improvements made in the final rule.   However, the rule remained so significantly flawed that NACWA determined a legal challenge was necessary.  The Association formed a Sewage Sludge Incineration Advocacy Coalition (SSIAC) made up of utilities with SSIs to provide funding and guidance for a legal and regulatory counterattack to the new regulations.  Over forty utilities from around the county are participating in the SSIAC, and the support of these clean water agencies has been critical to NACWA’s SSI advocacy.

In May 2011, NACWA sued EPA in federal court over the final SSI rule, and filed a second lawsuit with the Agency over the non-hazardous solid waste definition rule.  Also in May 2011, NACWA filed an administrative petition for reconsideration of the SSI rule with EPA, alleging both legal and technical reasons for EPA to reconsider and revise the final rule.  In April 2012, after months of extended and unexplained delay, EPA finally issued an answer to the reconsideration request and denied the petition in its entirety.   This denial paved the way forward for NACWA to fully proceed with its legal challenge to the rule.   In June 2011, NACWA filed a separate legal challenge to EPA’s denial of the reconsideration petition, and then immediately combined the case with the existing litigation over the underlying SSI rule.  The July 24 opening brief addresses these combined SSI rule lawsuits.

Opening Brief Highlights Statutory, Technical Flaws in SSI Rule

NACWA’s brief addresses two major categories of fatal errors in the SSI rule that require it to be judicially vacated.  The first category focuses on EPA exceeding its statutory authority and violating Congressional intent in the final rule by regulating SSIs under the wrong section of the CAA.  Specifically, the brief focuses on EPA’s decision in the final rule to regulate SSIs under Section 129 of the CAA, which requires very strict and costly air emissions standards and siting analyses, rather than under the more flexible requirements of CAA Section 112 as instructed by Congress.

The brief outlines how the clear language of the CAA directed all air emissions from publicly owned treatment works (POTWs), including SSI units, to be regulated under Section 112 of the CAA in order to preserve a more flexible regulatory scheme.  By placing air regulation of POTWs and SSIs under this more reasonable authority, Congress sought to ensure additional local decision making control over the means and methods of sewage sludge disposal.  This more flexible approach to SSI air emission regulation was also intended to be consistent with the principal regulatory framework for sludge management – including incineration -- envisioned by Congress in Section 405 of the Clean Water Act.

However, in crafting the SSI rule, EPA instead choose to set emission limits under on the more stringent requirements of CAA Section 129 based on the Agency’s determination that SSIs qualify as “solid waste incineration units” and thus must be regulated under the more stringent §129 standards.   NACWA’s brief argues that EPA violated the CAA in making this determination, both because the Agency ignored the clear language of the statue to regulate SSIs under §112, but also because EPA mistakenly classified SSIs as solid waste incineration units.

NACWA explains in its brief why EPA’s inclusion of SSIs as solid waste incineration units under the stringent §129 standards is a violation of the CAA, as well as why the definition of POTWs provided in the CWA clearly encompasses SSIs and thus the CAA mandates regulation of the incineration units under the more flexible §112 approach.  NACWA further argues to the court that the fundamental misreading of the CAA by EPA invalidates the entire SSI rule, and thus the rule must be vacated.

The second category of errors in the SSI rule outlined in the brief focuses on EPA’s use of inadequate data to develop the SSI emissions limits, in violation of the CAA’s minimum data requirements.  Under this line of argument, NACWA’s brief contends that even if EPA had the authority to regulate SSIs under §129, the rule still violates the CAA by setting pollutant limits using data from fewer than the statutorily mandated number of units.

CAA §129 requires that emissions standards be based on the average emissions limitations achieved by the best performing 12% of incineration units in the category.  NACWA’s brief argues that EPA’s SSI numbers are based on less than the required 12% of units, and in some cases less than 5%, thus making the rule illegal under the statute.   Additionally, the brief contends that EPA’s efforts to get around this problem through statistical manipulation of the incomplete data are also a violation of the clear statutory §129 requirements.   Furthermore, NACWA points out how EPA intentionally limited the amount of data it collected to set the standards to avoid time-consuming Office of Management and Budget review, and thus the Agency’s claims of too little time to obtain the necessary data should be disregarded.

Finally, the NACWA brief argues the SSI Rule is flawed because EPA did not demonstrate that the small amount of data used to set the emission limits are representative of emissions from the best performing SSIs.  Key to this argument is that EPA’s data were not geographically representative, nor reflective of variations in climate, population, and time of year.  As a result, the final emissions limits did not account for the significant variation present in sewage sludge, and accordingly are not technically valid limits under §129.   Additionally, the brief contends that the Agency acted arbitrarily in failing to evaluate the possibility of additional subcategorization of emission limits for SSIs.

Schedule and Next Steps

EPA is scheduled to file it brief responding to NACWA’s arguments in mid-October.  Additional briefing, including NACWA’s reply brief as well as intervenors’ briefs, will be filed in November and December.  All substantive briefing will be completed by the end of December, with final documents submitted in early January 2013.  Oral arguments in the case have not yet been scheduled, but will likely occur in March or April.  A final decision from the court would then probably be issued in May or June of next year.

NACWA will continue to keep the membership updated on developments in the litigation as they unfold.  NACWA is very grateful to the members of the SSIAC for their continued support of the Association’s SSI advocacy efforts.  Any members with questions on NACWA’s SSI advocacy can contact Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .