City of Homedale, Idaho, Administrative Appeal
On July 8, 2014, the EPA Environmental Appeals Board (EAB) denied a petition to impose daily nutrient limits in a publicly owned treatment works (POTW) National Pollutant Discharge Elimination System (NPDES) discharge permit.
In December 2013, NACWA joined the Wet Weather Partnership and a coalition of six state municipal wastewater associations in filing a joint amicus curiae brief in the in City of Homedale Wastewater Treatment Plant case, which involved a challenge by an environmental activist group to a permit issued by EPA to a POTW that allows discharges of total phosphorus (TP) at levels that exceed the number of pounds per day allowable under the applicable total maximum daily load (TMDL).
The major issue presented in the case was whether the permit must include true daily maximum limits for nutrients rather than weekly/monthly average limits; the answer to this question may have significant national ramifications on how nutrient limits may be expressed in POTW permits. This case was of particular importance to NACWA members because of the technological and financial challenges posed by daily maximum nutrient limits. Most existing nutrient limits are based on annual, seasonal, or monthly averages and the technology to achieve those limits will not meet daily loadings if set at, for example, 1/30th of the monthly average, should daily maximum limits be required. The main objective of NACWA’s amicus brief was to ensure that the EAB understands the significant impacts on POTWs and water quality improvement programs nationwide should the wrong decision be rendered.
In City of Homedale Wastewater Treatment Plant , an environmental activist group challenged an NPDES permit issued by EPA to an Idaho municipal wastewater treatment facility that allows discharges of TP at levels that exceed the number of pounds per day allowable under the Snake River's TMDL. The POTW permit at issue was crafted by EPA (Idaho does not have delegated authority to implement the NPDES program) with a weekly TP average limit, which is common for nutrient limits in many POTW permits, as opposed to a true daily limit. The environmental plaintiffs argued that the TP limits must be expressed as actual daily amounts, not a weekly average. Because the permit was issued directly by EPA, the appeal was filed with the EAB.
Applicable Regulation and Legal Precedent
EPA's regulation at 40 C.F.R. 122.45(d) specifies that consistent limits should be expressed in terms of weekly and monthly averages. Permitting authorities have discretion to translate TMDL daily targets into more flexible and appropriate average limits in specific permits, especially for nutrients. Effluent limits need only be consistent with the assumptions and requirements of TMDLs. Furthermore, the EAB and other state and federal courts have previously upheld NPDES permits without daily maximum effluent limits for nutrients.
NACWA’s Arguments in the Appeal
The joint municipal brief set forth four key arguments: (1) the Homedale NPDES permit does not warrant review under the EAB’s rules because the POTW’s wasteload allocation, which is only 0.3% of the TMDL, will have no measurable effect on water quality; (2) the Homedale facility’s permit is a straightforward application of the CWA regulation that requires that NPDES permit limits for POTWs be expressed as monthly/weekly average limits unless doing so is impracticable and there was no showing that the monthly/weekly average limits were impracticable in this case; (3) the environmental group is effectively attempting to challenge this regulation, which it cannot do before the EAB (the Federal Courts of Appeals have exclusive jurisdiction over such claims); and (4) the imposition of daily maximum nutrient limits for POTWs would undermine nutrient control programs nationwide, including the Chesapeake Bay Program, Long Island Sound Program, Tar-Pamlico and Neuse River programs in North Carolina, and dozens of similar nutrient-related programs.
This EAB denial of the environmental group’s petition has broad national implications on how to set "daily" discharge limits for nutrients, not only for permits issued directly by EPA but also for permits issued by all delegated states under the CWA authority granted by EPA. The ruling upholds the ability of EPA and the states to use more flexible weekly or monthly averages for nutrient limits in individual permits absent specific language in a TMDL that mandates that daily loadings must be incorporated into NDPES permits. In addition, unless EPA or a third party shows that monthly/weekly NPDES permit limits are impracticable and provide support for daily limits during the permitting process, such limits (monthly/weekly) cannot be properly challenged through a permit appeal.
POTWs should seek inclusion of a provision in any future TMDL clarifying that the daily load shown in the TMDL does not require daily NPDES permit limits but, instead, are longer-term average loading assumptions.
Other groups that joined the amicus brief with NACWA are the Wet Weather Partnership, the North Carolina Water Quality Association, the South Carolina Water Quality Association, the West Virginia Municipal Water Quality Association, the Association of Missouri Clean Water Agencies, the Virginia Association of Municipal Wastewater Agencies, and the Maryland Association of Municipal Wastewater Agencies.