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March 29, 2013
Federal Appellate Court Issues Key Ruling on Blending
The U.S. Court of Appeals for the Eighth Circuit issued a significant legal decision on March 25 when it struck down U.S. Environmental Protection Agency (EPA) efforts to improperly regulate peak wet weather flow management techniques at publicly owned treatment works (POTWs). The decision also struck down certain EPA efforts to illegally regulate mixing zones. In making its decision, the court found that the Clean Water Act’s (CWA) secondary treatment effluent limitations apply only at the final point of discharge, not within a POTW’s internal treatment processes. This ruling is an important step forward for utilities using a variety of peak flow management techniques, especially those with parallel peak flow treatment trains, and marks a notable legal victory.
The municipal plaintiffs in the case alleged that EPA was impermissibly limiting the use of mixing zones and blending via de facto new regulatory requirements, but without going through the necessary procedural steps of notice and comment required for binding regulations. The court agreed with this argument and vacated EPA's actions to limit mixing zones and blending on procedural grounds. The court also took its analysis one step further; however, and said that even if EPA's efforts to limit blending had properly gone through notice and comment, the Agency’s actions would still be illegal substantively under the CWA to the extent they are used to impose secondary regulations on flows within facilities. The court made clear that the CWA does not give EPA the statutory authority to apply effluent limitations to the discharge of flows from one internal treatment unit to another within the POTW.
This ruling is a major blow to EPA’s inappropriate efforts to limit peak flow management options at POTWs by imposing secondary treatment effluent limitations within the boundaries of the plant. It provides utilities with important flexibility going forward in selecting peak flow management options, and confirms NACWA's position that EPA has been illegally regulating peak flow management approaches at POTWs via the secondary treatment and bypass regulations. The Association strongly believes peak flow treatment techniques play an integral role in helping utilities provide maximum treatment to wet weather flows and protect water quality.
NACWA commends the plaintiffs on a great win for the clean water community and looks forward to ensuring that any future EPA actions on peak flow treatment issues comply with the court’s directives. The court decision will be discussed in more detail at NACWA’s upcoming National Environmental Policy Forum in April.
A notice of appeal was filed March 25 by NACWA member DeKalb County, Georgia, requesting federal appellate review of a lower court decision on payment of municipal stormwater fees. The appeal request in DeKalb County v. United States asks the U.S. Court of Appeals for the Federal Circuit to consider a ruling from the Court of Federal Claims, which found that the County’s stormwater charge qualified as a tax and not a valid utility fee. The claims court’s Jan. 28 decision also ruled that a 2011 Clean Water Act (CWA) amendment clarifying federal facility payment of stormwater fees does not apply to charges billed before the amendment’s enactment.
NACWA submitted comments this week to the U.S. Environmental Protection Agency (EPA) regarding the Agency’s draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2011. The annual inventory provides nationwide estimates of greenhouse gas (GHG) emissions for various sectors, including wastewater treatment, and is intended to be used only for informational purposes. The wastewater treatment category includes publicly owned treatment works (POTWs), septic systems, and industrial wastewater treatment systems. Wastewater treatment consistently ranks as one of the top ten sectors for emissions of methane and nitrous oxide, although wastewater emissions are much smaller in magnitude than for the highest ranked categories.
NACWA has commented on the six previous inventories, resulting in corrections and clarifications by the Agency. Because EPA did not make any substantive changes in this year’s inventory, NACWA comments reiterate those previously filed. The Association asked the Agency to clarify that the inventory should only be used for information purposes, and that industry-wide estimates are not always applicable for facility-level emissions calculations, such as those required in Clean Air Act permitting programs. In addition, NACWA recommended that EPA use a different methodology or nitrogen loading rate to calculate nitrous oxide emissions because loading rates collected by NACWA, and available in literature, are lower than those used by the Agency. The Association will evaluate any changes made in the final 2010 inventory and will continue to monitor all EPA actions on GHGs.
NACWA met with the U.S. Conference of Mayors (USCM), the National League of Cities (NLC), the National Association of Counties (NACo), the Water Environment Federation (WEF), and several other water sector organizations to provide input into the ongoing dialogue with the U.S. Environmental Protection Agency (EPA) on financial capability. The USCM initiated the current dialogue with EPA in fall 2012 to address ongoing concerns with increasing Clean Water Act compliance costs being imposed on communities nationwide. In response, the Agency issued a memorandum to its regional offices earlier this year outlining areas where it believes additional discussion on conducting financial capability assessments is warranted.
Although EPA continues to rely on its 1997 guidance for assessing financial capability, the USCM is confident that the Agency will — at the very least — provide clarification on what additional information can be considered when evaluating the financial capability of a community. This week’s meeting was intended to provide the USCM with a better sense of the position of the water sector on key issues that will be discussed in future dialogues. The USCM, NLC, and NACo, along with their elected official members, will hold additional meetings with EPA over the coming months, after which the USCM expects to broaden the discussion to include the water sector organizations. NACWA plans to participate as appropriate, but also plans meetings with the Agency to discuss the issue and to provide an overview of the Association’s new Targeted Action Fund project on financial capability. An initial draft of the new white paper was reviewed by the Money Matters Task Force in March. The Task Force will consider a final draft in April.
NACWA members joined with farmers from Iowa, Illinois, Minnesota, and Kentucky, as well as representatives from the municipal drinking water sector, this week to begin a dialogue on ways to collaboratively reduce nutrient loadings in the Mississippi River Basin. The Mississippi River Nutrients Dialogue will focus on the water quality impacts of nutrients in the Mississippi River watershed and explore the practical, scientific, technological, financial, and public policy barriers and opportunities to reducing nutrient pollution. The U.S. Water Alliance hosted this first of four dialogues with support from the McKnight Foundation, Sand County Foundation, and the Johnson Foundation. Each dialogue will focus on exploring ways in which clean water and drinking water agencies and the agricultural sector can collaborate on reducing excessive amounts of nutrients that are impairing surface and ground waters in the Mississippi River Basin and contributing to hypoxia in the Gulf of Mexico. NACWA members participating in the dialogue included David St. Pierre, NACWA Board Member and Executive Director of the Metropolitan Water Reclamation District of Greater Chicago, Ill.; Steve Meyer, NACWA Board Member and Director of Environmental Services for City of Springfield, Ill.; David Taylor, NACWA Biosolids Management Committee Co-Chair and Director of Special Projects, Madison Metropolitan Sewerage District, Wis.; Steve Hershner, Utilities Environmental Manager for the City of Cedar Rapids’ Utilities Department, Iowa, and Leisa Thompson, General Manager, Metropolitan Council Environmental Services, Minn.
Negotiations continued this week on an enforceable consent agreement (ECA) for environmental monitoring for two siloxanes, D4 and D5. The meeting included representatives from the U.S. Environmental Protection Agency (EPA), NACWA, and the Silicone Environmental Health and Safety Council of North America (SEHSC). NACWA is an interested party in the ECA negotiations because of the detrimental effects of siloxanes on the exhaust stages of boilers, engines, and other equipment when biogas is used as a renewable fuel by publicly owned treatment works (POTWs).
At the meeting the discussion focused on SEHSC’s proposal for sampling to occur at 10 POTWs to collect data for an environmental risk assessment. The 10 POTWs would include five without siloxane manufacturing or processing facilities discharging into the collection system and five with siloxane dischargers. SEHSC and EPA agree that monitoring of the influent, effluent, biosolids, and receiving waters should be included in the plan. EPA had previously suggested that 16 facilities be sampled. NACWA supported the plan for sampling at 10 POTWs, indicating that this should represent a sufficient cross-section of facilities, and requested that biogas be included in the sampling. EPA plans to complete negotiations by the end of April.
NACWA joined other organizations in submitting a letter to the Council on Environmental Quality (CEQ), thanking them for hosting the White House Conference on Green Stormwater Infrastructure on Sept. 20, 2012, and encouraging them to release the report of conference outcomes as soon as possible. The letter was signed by the Water Environment Federation (WEF), the Association of Clean Water Administrators (ACWA), the American Society of Landscape Architects (ASLA), American Rivers, the Natural Resources Defense Council (NRDC), and the U.S. Water Alliance. NACWA anticipates that the content of the report will underscore the importance of the September conference; highlight the many benefits of green infrastructure; provide a vehicle to continue the momentum generated by the event; and, outline information critical to a coordinated effort between the organizations. The Association will provide the report to its members upon its release.
On Wednesday, the U.S. Environmental Protection Agency (EPA) released a draft Water Technology Innovation Blueprint that highlights the importance of technology innovation by utilities to achieve clean water goals, and outlines the ways the Agency plans to promote such innovation. In the draft document, the Office of Water identifies several market opportunities for innovative technology application, including:
Only one week remains to apply for NACWA’s 2012 Peak Performance Awards. Recognizing Member Agencies’ top performing treatment facilities for over two decades, Peak Performance Awards honor treatment facilities that have achieved outstanding compliance with their National Pollutant Discharge Elimination System (NPDES) permits. Recognition is awarded at three levels: Platinum, Gold, and Silver. Read more about how your Agency’s treatment facilities can be earn recognition for their outstanding performance. Applications are due April 5, 2013.
With over 100 new members of Congress, and many new staff at the top levels of key federal agencies, now is the time to come to Washington and make your voice heard. Make your plans today to join us for NACWA’s National Environmental Policy Forum at the Marriott Washington. Be sure to make your reservations with the Marriott Washington before the extended registration deadline of April 4 for the special $259 rate. After this date, NACWA must release the unreserved rooms, and reservations will be accepted on a space available basis only with no guarantee that the conference rates will apply.
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