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Consistent with NACWA’s recommendations, the U.S. Environmental Protection Agency (EPA) issued a strongly-worded denial of the Natural Resources Defense Council’s (NRDC) 2007 petition that sought to modify the secondary treatment regulations to include nutrient removal.  Citing the technical constraints and costs associated with uniform national limits, EPA’s December 14 letter denying the petition reaffirms the Agency’s preference for controlling nutrient discharges from POTWs through site specific water quality-based permitting.

This decision is a major victory for the clean water community that will save publicly owned treatment works (POTWs) tens of billions of dollars annually, even based on EPA’s conservative, “lower end” cost estimates.  NACWA has led the advocacy efforts on this issue since 2007 and encouraged the Agency to take the exact steps laid out in the December 14 denial.  This Advocacy Alert provides a brief summary of the denial and its importance to the Nation’s clean water agencies.

Summary of EPA’s Response to the NRDC Petition

NRDC’s petition contained two key requests.  First, the petition argued that EPA had not met its statutory duty under Clean Water Act (CWA) Section 304(d)(1) to periodically publish information on the degree of effluent reduction attainable through the application of secondary treatment and that such a document needed to be published.  EPA agreed with NRDC and plans to publish a report with updated information on the performance of secondary treatment.  However, EPA notes that there is insufficient data to include information on the incidental removal of nutrients through secondary treatment in that report.  While NACWA has argued that EPA has already met this ‘duty to publish requirement’, the Association’s most recent communication with EPA outlined how the Agency could publish such information without granting NRDC’s request for the expansion of secondary treatment to include nutrient removal.  EPA underscores that the “technology that formed the basis for EPA’s secondary treatment regulations…is not designed to remove nutrients”, a key argument that NACWA has made since 2007.  EPA has committed to providing NRDC (and other stakeholders) the “Secondary Treatment Performance Report” in early 2013.

The second portion of NRDC’s petition requested that EPA establish nutrient limits as a part of the generally applicable secondary treatment regulations.  Citing careful consideration of the information and arguments presented by NRDC and all of NACWA’s letters and follow-up data and information submittals, EPA determined that “it is not warranted at this time to revise the secondary treatment regulations to establish new effluent limitations for nutrients.”  EPA further states that the need to control nutrients at POTWs is a “highly site-specific matter…that not all POTWs nationwide need to meet minimum technology-based limits for nutrients to protect water quality…and that many POTWs would incur high costs” that would be unnecessary to meet water quality standards.

EPA’s Rationale for Denying Petition Consistent with NACWA Advocacy

In denying the NRDC petition, EPA points to the CWA and associated legislative history to underscore its broad discretion to determine whether to revise the existing definition of secondary treatment.  EPA provides a brief history of the secondary treatment provisions and its reasoning for not including numeric limits for nitrogen and phosphorus because the Agency “found under normal conditions activated sludge treatment systems do not effectively or consistently remove these pollutants.”  NACWA’s most recent letter to EPA on the petition outlined the broad nature of this discretion.

EPA’s denial also raises a key statutory provision that NACWA has pointed to since its first communication on this issue.  EPA notes that the CWA originally included a second tier of technology controls for POTWs termed Best Practicable Waste Treatment Technology (BPWTT), and that Congress expressly envisioned that nutrients were one of the categories of additional constituents that would be addressed through BPWTT.  As NACWA did in its advocacy, EPA cites this provision to argue that Congress never intended secondary treatment to include nutrients.  Furthermore, the deadlines associated with BPWTT were removed as part of the CWA Amendments in 1981 due to a federal funding shortfall for the construction of POTWs, as EPA’s response points out.  EPA’s acknowledgement of this important statutory history in the petition response is a crucial victory for NACWA and its members.

As it has done in denying similar petitions in the past, EPA also points to its continuing efforts to implement the water quality-based provisions of the CWA as further rationale against uniform national standards.  EPA points to continued progress in developing state water quality standards for nutrients and examples of comprehensive water quality-based approaches like the ongoing efforts in the Chesapeake Bay.

EPA also includes an additional argument that it has taken its own resource constraints into account and notes that it would be very difficult given its current budgetary constraints to undertake this type of rulemaking.  This is the line of reasoning EPA used in denying the Mississippi River nutrient petition, which is currently being challenged.  In that case, however, the budget argument was the primary reason for denial, while in this case it is the final reason provided and only serves to bolster EPA’s already strong arguments against the petition.

EPA Cites Technical, Cost Obstacles to Revising Secondary Treatment

In addition to the underlying statutory and legal rationale, EPA also outlines a number of technical and cost-related reasons for denying NRDC’s petition.  While NRDC’s petition argues that minor retrofits could achieve significant reductions in nutrients, EPA’s denial letter notes a number of flaws in NRDC’s analysis and assumptions.  EPA finds that “many POTWs would require significant upgrades to their existing technologies...in order to install nutrient removal technologies.”  EPA also notes that land constraints and financial and technical difficulty upgrading smaller POTWs using basic lagoons and trickling filters, will further complicate implementation of a uniform national standard.  NACWA provided extensive data and information on these technical issues over the last several months, including two of the references cited in the denial letter.

Noting that costs to small POTWS would be significantly higher per pound of nutrient removed than at larger POTWs, EPA estimates that the annual cost to incorporate advanced nutrient removal – just for the 33 percent of plants with a flow of at least 0.5 million gallons per day – would be between $5 and $12 billion annually.  On a national basis, EPA estimated a capital investment of $45 billion for retrofits and $130 billion for technology replacement.  EPA underscores  that despite its uncertainty about the exact cost, it is certain that “even at the lower end of the cost estimate range based on conservative estimates, POTW upgrades to meet NRDC’s request would at a minimum require tens of billions of dollars annually.”

EPA also notes that “many local governments are confronting difficult financial conditions …[and] their ability to finance POTW improvements by raising revenue or issuing bonds has declined during the economic downturn and ongoing economic recovery.”  EPA further concluded that a uniform national standard would impose unnecessary costs on communities where such controls are not needed to protect water quality.

Potential Next Steps

NACWA will continue to track the reaction to EPA’s denial.  NRDC has been quoted in the press that this denial “moots” its existing legal challenge, which only sought to compel EPA to respond, but that the organization has not yet considered its next steps.  NACWA will closely monitor developments in the existing case.  Additionally, as environmental groups have done in the Mississippi River case, NRDC could file another lawsuit to challenge the validity of EPA’s denial.  NACWA believes that if such a challenge were to be filed, EPA would defend its decision as it is doing in the Mississippi River case, and NACWA is prepared to move aggressively with legal advocacy in support of EPA’s petition denial.  NACWA will be discussing the denial and possible legal challenges down the line during its Winter Conference in Miami.