» Clean Water Current Archive

May 3, 2013

NACWA Aggressive in Oral Arguments over SSI Rule

Oral arguments were held today in NACWA’s litigation challenge to EPA’s sewage sludge incineration (SSI) rule, with the Association aggressively challenging EPA’s legal basis for its new SSI regulations. As the lead petitioner in the case, NACWA lead off the arguments with a strong challenge to EPA’s statutory authority for the rule, contending that EPA promulgated it under the wrong section of the Clean Air Act (CAA). NACWA argued that a clear reading of the CAA, along with key language from the Clean Water Act (CWA), demonstrates that SSIs are part of the statutory definition of a ‘publicly owned treatment works’ (POTW), and that Congress intended all emissions from POTWs – including SSIs – to be regulated under a more flexible provision of the CAA than was done by EPA in the final SSI rule. NACWA has also raised challenges in the litigation to EPA’s technical underpinning of the rule, arguing that EPA used insufficient data to develop the rule’s emissions limits.

The judges were very active in their questioning during the arguments, of both NACWA, as well as EPA. Although at least one, and possibly two, of the judges on the panel seemed sympathetic to EPA’s arguments on the statutory issues, the panel appeared much more skeptical of the Agency’s technical arguments. A number of the judges asked questions which suggested they may agree with NACWA’s arguments that EPA did not collect sufficient data – particularly on sewage sludge variability – in crafting the SSI rule, and thus the rule suffers from a fundamental technical flaw. The judges also did not seem persuaded by arguments from the Sierra Club, which was also a petitioner in the case and had challenged the final emissions limits in the SSI rule as not being stringent enough.

Although it is always difficult to predict the outcome of a case based on oral arguments, it seems possible the court may ultimately remand – and possibly even vacate – the rule based on NACWA’s technical arguments. If this were to happen, it would be an important win for NACWA and those clean water utilities that rely on SSIs to effectively manage sewage sludge. NACWA is particularly grateful to members of the Association’s Sewage Sludge Incineration Advocacy Coalition (SSIAC), who have played an instrumental role in supporting the Association’s advocacy efforts on this critical issue.

NACWA is hopeful for a ruling from the court within the next 3-4 months. Additional background information on the case is available on NACWA’s Litigation Tracking webpage. We will keep the membership updated on any developments.

Association Renews Challenge to Solid Waste Rule

In a related development, NACWA re-filed its legal challenge   to EPA’s non-hazardous secondary materials (NHSM) rule this week, challenging EPA’s decision to classify biosolids that are incinerated as a solid waste. The NHSM rule, also known as the ‘definition of solid waste’ rule, provides a critical regulatory underpinning for EPA’s SSI rule. NACWA originally challenged the NHSM rule in 2011 at the same time it challenged the SSI rule, but the NHSM court case was subsequently put on hold while the rule was revised by EPA. The Agency re-issued the NHSM rule earlier this year, without addressing any of NACWA’s concerns over the biosolids issue. As a result, the Association has renewed its legal challenge to the rule. NACWA looks forward to continued aggressive advocacy on this issue moving forward.

New Jersey, New York to Receive $569M in EPA Grants for Resiliency Projects

EPA announced this week that it would offer grants totaling $340 million for New York and $229 million for New Jersey for improvements to wastewater and drinking water treatment facilities impacted by Hurricane Sandy. The money is specifically geared to help utilities improve their resiliency to future extreme weather, and will be administered by the States through the State Revolving Fund (SRF) programs. Eligibility criteria and application information can be found here. This funding is part of the $60 billion Hurricane Sandy relief package that was passed in Congress on January 28 and signed into law by President Obama shortly thereafter. NACWA believes this funding highlights the importance of resiliency not just in states impacted by Hurricane Sandy, but in a national program to ensure that clean water agencies have the tools and support needed to meet changing weather patterns across the country.

NACWA Co-Hosts Successful Integrated Planning Workshop in Region 5

NACWA, the Association of Clean Water Administrators (ACWA), and the Water Environment Federation (WEF) continue to partner, in conjunction with EPA, to offer a series of Integrated Planning (IP) Workshops around the country. On May 1, approximately 85 stakeholders, including NACWA members, EPA staff, and state regulators, met for the Region 5 Workshop in Indianapolis, Indiana. Wisconsin, Illinois, Indiana, Ohio and Michigan utilities voiced their experiences with IP and participated in a spirited discussion with state regulators and EPA staff. Affordability took top priority amid the day’s conversations. Since the Great Lakes region has the largest number of CSO communities, it was no surprise that the dialogue often focused on how IP could apply to CSO issues. Much of the Workshop’s value was found in the unique opportunity for utility leaders to ask thoughtful questions to EPA Headquarters and Region 5 officials, as well as state regulators, on how IP may be applicable to their specific circumstances and situations.

The utility attendees in Regions 5 were especially interested in how IP may work in a permitting context. EPA’s Deborah Nagle spoke at length about how this might work, and prompted an extended dialogue of the pros, cons and implications of using a permit versus an enforcement approach to IP – while also discussing a hybrid mechanism to IP development. NACWA appreciates the many attendees who joined us, and will continue to work with ACWA, WEF, EPA, and our members to plan workshops in the remaining regions in 2013. Information on upcoming workshops will be made available as they are scheduled on NACWA’s website .

Senators Support Funding for an Integrated Planning Pilot Program

Senator Sherrod Brown (D-OH) submitted an April 26 letter to Senators Jack Reed (D-RI) and Lisa Murkowski (R-AK), Chair and Ranking Member of the Senate Appropriations Subcommittee on Interior, Environment, & Related Agencies, requesting $5 million in the FY 2014 EPA budget to establish an Integrated Planning pilot program. Under the proposed program, up to 50 communities around the country would receive grants to develop integrated plans in line with EPA’s Integrated Planning Framework. Senators Barbara Boxer (D-CA), Jeff Merkley (D-OR), Sheldon Whitehouse (D-RI), and Kirsten Gillibrand (D-NY) also signed the letter. Senator Roy Blunt (R-MO), who sits on the Senate Appropriations Committee, also submitted a personal appropriations request to the Subcommittee in support of this pilot program.

This comes a week after a number of members in the U.S. House of Representatives also made the same request for a $5 million Integrated Planning pilot program. Those members include Representatives Bob Gibbs (R-OH), Tim Bishop (D-NY), David Joyce (R-OH), Steve Chabot (R-OH) and Tim Ryan (D-OH). The House and Senate must now craft their EPA appropriations bills and NACWA is hopeful that will all of this support, an Integrated Planning pilot program will be included. NACWA will report on new developments as they occur.

Senators Urge Funding for State Revolving Funds

Twenty eight Senators signed a bi-partisan letter urging the Senate Appropriators to ensure that the Drinking Water and Clean Water State Revolving Fund (SRF) programs receive critical funding as they determine discretionary spending levels for fiscal year (FY) 2014. The letter, sponsored by Senators Ben Cardin (D-MD) and Mike Crapo (R-ID), comes in the wake of the President’s FY 2014 budget proposal that would significantly cut the SRF (see Advocacy Alert 13-06). It requests that funding for the Clean Water and Drinking Water SRF programs be consistent with appropriations in recent years, at $1.095 billion and $816 million, respectively. The letter also recognizes the enormous return on investment the SRFs provide in terms of job creation and economic activity – according to the U.S. Department of Labor, for every $1 billion spent of clean water infrastructure, 26,000 new jobs are added. Other data suggests that each job created in the local water and wastewater sector, results in 3.68 jobs in the national economy. Senate Appropriators are expected to begin writing their FY 2014 EPA spending package in June.

Biogenic Emissions Coalition Discusses Advocacy Strategy

NACWA met this week with other members of the Biogenic CO2 Coalition to discuss next steps in advocating for a permanent exemption of short cycle carbon dioxide (CO2) emissions from Clean Air Act permitting programs. NACWA’s Board of Directors approved a Targeted Action Fund (TAF) request on April 21 to join the coalition, which is led by the Corn Refiners Association and includes other food and crop processing associations. Biogenic emissions are considered part of the natural carbon cycle, but EPA did not exclude these emissions when it began regulating greenhouse gas (GHG) emissions in 2011 through the Prevention of Significant Deterioration (PSD) and Title V permitting programs. However, EPA deferred regulation of biogenic emissions – including CO¬2 emissions from wastewater treatment processes and the combustion of biogas and biosolids – until July 2014 to provide the Agency with time to study the issue and determine how biogenic GHG emissions should be regulated.

Unless EPA takes action, biogenic emissions will automatically become part of the PSD and Title V permitting programs in July 2014. The Coalition is therefore drafting a petition for rulemaking and an accompanying technical report to submit to EPA later this year. In initial discussions with the Coalition, EPA seemed interested in obtaining information and suggestions from the Coalition. In addition, a Department of Justice attorney representing EPA during oral arguments in Center for Biological Diversity, et al. v. EPA (see April 12 Clean Water Currentarticle for more information) told the court that publicly owned treatment works (POTWs) are not a net contributor to atmospheric carbon loadings, which agrees with the position of the Coalition.

NACWA will consult with members of its Climate & Energy Committee and Air Quality Workgroup when the petition and technical report of the coalition are ready for review.

NACWA Joins Farm Bill Energy Title Support Letter

NACWA this week joined with more than 100 national, state and regional organizations on a letter urging Congress to adopt a new Farm Bill that includes robust mandatory funding to support the development of agricultural energy technologies. Sent to the House and Senate Agriculture Committees, the letter focuses on the Energy Title programs in the 2002 and 2008 Farm Bills that are integral to the legislation and to communities across the country. As part of the fiscal cliff negotiations, a nine-month extension of the Farm Bill that continued Fiscal Year 2012 funding levels, was passed in January. The Senate has announced that it will begin work on a five year farm bill sometime this month, and NACWA will keep members informed as developments occur.

Association Continues Efforts on the Nutrient Front

On a related note, NACWA circulated the April Healthy Waters Update this week to members of the Healthy Waters Coalition, a diverse group of municipal and state water and wastewater organizations, as well as conservation and sustainable agriculture groups from across the country. The Coalition is focused on strengthening links between working agricultural lands and the quality of our Nation’s waters – with specific emphasis on agricultural nutrient run-off and the Farm Bill as a vehicle for nutrient control measures.

The Update provides members with an overview of press coverage in April focusing on key studies and research, and significant state/local activities related to nutrient issues. A full archive of past monthly Healthy Waters Updates, can be found here . NACWA members interested in receiving these Updates are invited to email the Healthy Waters Coalition at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or contact Claire Moser.