Eco Systems Operations, et al. v. EPA

On June 3, 2015 the District of Columbia Circuit Court of Appeals issued a decision in litigation over EPA's final Non-Hazardous Secondary Materials (NHSM) Rule, dismissing challenges filed by NACWA and others to the rule. The court rejected NACWA's arguments that the "domestic sewage exclusion" (DSE) in the Resource Conservation and Recovery Act (RCRA) exempts sewage sludge from classification as a solid waste when incinerated. The court agreed with EPA's position that RCRA's definition of sludge encompasses sludge produced during the wastewater treatment process, and thus the DSE does not apply.

The NHSM Rule provides a key regulatory underpinning for EPA's Sewage Sludge Incinerator (SSI) Rule by defining sludge when incinerated as a solid waste. NACWA challenged the NHSM Rule as part of the Association's overall advocacy related to SSI issues. NACWA originally filed a legal challenge to the NHSM Rule in 2011 and at the same time challenged the SSI Rule (see NACWA v. EPA). However, EPA announced in late 2011 that it would revise the NHSM Rule, and accordingly the NHSM court case was subsequently put on hold while the rule was revised. The Agency re-issued the NHSM Rule in early 2013, without addressing any of NACWA's concerns over the biosolids issue. As a result, the Association renewed its legal challenge to the rule in early May 2013, contesting EPA's decision to classify biosolids that are incinerated as a solid waste.

The rule, and the D.C. Circuit decision, only impact sewage sludge that is incinerated for disposal, not sludge managed through other methods.

With the D.C. Circuit's ruling, all practical legal avenues to challenging EPA's SSI regulations are now closed. While NACWA has been consistently advising SSI utilities to make all efforts necessary for compliance with the SSI Rule by the March 2016 compliance deadline (or earlier in some states), the decision dismissing NACWA's challenge to the underlying NHSM Rule makes it all the more important that utilities move forward as quickly as possible to comply with the SSI Rule.

NACWA is still engaged with EPA on a number of important regulatory issues related to the SSI Rule and will keep the membership updated on any developments, but these activities will likely have no impact on the compliance deadline.

Rulings/Pleadings (All in  format)

• Revised Petition for Review of Solid Waste/NHSM Rule, 05/02/2013 
• NACWA Revised Statement of Issues in NHSM Rule Challenge, 06/03/2013 
• Proposed Briefing Schedule in NHSM Rule Challenge, 11/25/2013  
• NHSM Case Briefing Schedule, 01/31/2014
• NACWA/Industry Petitioners Opening Brief in NHSM Case, 04/28/2014
• Environmental Petitioners Opening Brief in NHSM Case, 04/28/2014
• EPA Response Brief in NHSM, 08/01/2014
• Environmental Petitioners Reply Brief, 09/29/2014
• NACWA/Industry Petitioners Reply Brief, 09/29/2014
• NACWA/Industry Petitioners Final Opening Brief, 11/12/2014
• Environmental Petitioners Final Opening Brief, 11/12/2014
• EPA Final Response Brief, 11/12/2014
• NACWA Industry Petitioners Final Reply Brief, 11/12/2014
• Environmental Petitioners Final Reply Brief, 11/12/2014
• Motion Requesting Oral Argument, 02/19/2015
• Order Setting Oral Argument, 03/03/2015
• D.C. Circuit Decision, 06/03/2015