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March 27, 2015
NACWA Helps Secure Key Legal Victory in Ohio TMDL Litigation
The Ohio Supreme Court issued a ruling on March 24 in the Fairfield County v. State of Ohio case, vacating the phosphorus limits in a National Pollutant Discharge Elimination System (NPDES) permit. The limits were vacated because they were derived from an underlying total maximum daily load (TMDL) that should have been promulgated as a rule pursuant to the state Administrative Procedures Act (APA). The court’s ruling echoes arguments made by NACWA and the Association of Ohio Metropolitan Wastewater Associations (AOMWA) in a joint brief filed in the case.
In a 5-2 decision, the court held that the TMDL had not been promulgated as a rule in violation of Ohio Revised Code 119, the Ohio APA, which the court held was a violation of the permittee’s due process. The permittee, Fairfield County, was denied the ability for meaningful review of the limits and the ability to challenge the TMDL. In determining that the TMDL is a rule, the court distinguished guidelines, which are not subject to formal rulemaking.
While it is true that guidelines for interpreting existing rules that do not substantively alter them are not subject to formal rulemaking, the TMDL is a “standard” that has “a general and uniform operation” within the meaning of [the state APA]. It does more than simply aid in the interpretation of existing rules or statutes. Instead, it prescribes a legal standard that did not previously exist. As such, it must first be formally promulgated as a rule … before it can be enforced against the general public.
The court further held that the rulemaking process must be undertaken before the TMDL is submitted to U.S. EPA for review and approval. This process gives interested parties – including clean water utilities – an opportunity to challenge both the legal and scientific bases of TMDLs.
The joint NACWA/AOMWA brief argued that permittees should have an opportunity for meaningful review – and potential legal challenge – of TMDL allocations before incorporation into a discharge permit, and that the failure to provide such review is a violation of due process. Before this ruling, state regulators in Ohio argued that a utility could not mount a legal challenge to a specific TMDL allocation or limit until that allocation was used to derive a particular effluent limit in an NPDES permit. Although this ruling only applies to Ohio, it sets a very positive precedent nationwide for clean water agencies making similar arguments and may impact how other courts elsewhere in the country examine this issue in the future.
NACWA, the Water Environment Federation (WEF), the American Public Works Association (APWA), the Canadian Water & Wastewater Association (CWWA), and INDA (the trade association of the nonwoven fabrics industry) began their Product Stewardship Initiative on wipes to improve consumer awareness of proper wipe disposal. Representatives from the associations met on March 26 to discuss potential strategies for improving labeling of wipes and educating consumers to try to prevent flushing of baby wipes and other non-dispersible wipes. A roadmap for action based on the meeting discussions will be developed, and then the associations will decide on the timing for next steps.
The same associations are also developing new flushability guidelines will help to ensure that any wipes labeled “flushable” will break up rapidly in the sewer system and not cause clogs and other problems with equipment. The workgroup that is drafting the guidelines met on March 25 to discuss tests and analyses that have been conducted since the first workgroup meeting. NACWA’s representative to the workgroup is Frank Dick, Industrial Pretreatment Coordinator for the City of Vancouver Department of Public Works and Vice Chair of NACWA’s Pretreatment & Pollution Prevention Committee. The guidelines should be completed by June 2016.
Both the Product Stewardship Initiative meeting and the flushability guidelines workgroup are supported in part by NACWA’s Targeted Action Fund (TAF). Both projects resulted from the Technical Workgroup that held a series of meetings last year to discuss problems caused by wipes and potential solutions.
NACWA submitted comments this week to EPA regarding the Agency’s draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2013. 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 in the Inventory includes publicly owned treatment works (POTWs), septic systems, and industrial wastewater treatment systems. The category as a whole consistently ranks in 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 eight previous Inventories, and EPA has made corrections and clarifications that have been requested by the Association. Since EPA did not make any substantive changes in the emissions calculations in this year’s Inventory, NACWA emphasize some of its comments from previous years. The Association continues to believe that EPA may have overestimated nitrous oxide emissions, and the Association recommended that EPA use a different methodology or a different nitrogen loading rate in its calculations. NACWA also encouraged EPA to find more current information about wastewater utilities in the U.S., rather than to forecast current information based on data that is ten years old. The Association will evaluate any changes made in the final 2013 Inventory and will continue to monitor all EPA actions related to GHG emissions from wastewater utilities.
EPA’s Integrated Planning initiative received strong bi-partisan support from House and Senate lawmakers who view the initiative as an important step toward providing communities with additional tools to help meet obligations under the Clean Water Act more affordably. In the House, Water Resources & Environment Subcommittee Chair Bob Gibbs (R-OH) was joined by the Subcommittee’s Ranking Member Grace Napolitano (D-CA) in a letter urging House Appropriators to support the Administration’s request for funding for Integrated Planning. Ohio Congressman David Joyce (R) is also supporting the request. In the Senate, Republican Senators Roy Blunt (MO) and Mark Kirk (OH) are supporting the request, as well as a number of Democrats who sent a letter to Senate Appropriators this week. The Senate letter was led by Senator Sherrod Brown (D-OH) who was joined by Democratic Senators Boxer (CA), Whitehouse (RI), Booker (NJ), Menendez (NJ), Schatz (HI), and Hirono (HI). The Administration included $13 million in its FY16 Budget Request for the EPA to help communities develop integrated plans and, if appropriated in its final budget, would be distributed as both technical assistance and competitive grants. Last year, EPA awarded technical assistance to five communities to help them develop these plans. These communities were Durham NH, Burlington VT, Onondaga County NY, Springfield MO, and the City of Santa Maria CA.
What do March Madness and wet weather enforcement issues have in common? NACWA’s weekly blog has the answer, and here’s a hint – it’s never a good idea to gamble on either! Luckily, NACWA’s upcoming Wet Weather Consent Decree Workshop – scheduled for April 29 -30 in Philadelphia – has all the insights and analysis you and your utility need to successfully negotiate and implement a wet weather enforcement order.
Central to the Workshop will be a unique opportunity to hear from senior EPA officials – including both Headquarters and Regional personnel – about their perspectives on wet weather enforcement, including insights on how regulators approach wet weather negotiations and what kinds of approaches from municipalities they find most and least effective.
The Workshop will also feature extensive discussion on strategies and approaches utilities can take to achieve the most cost effective environmental outcomes in enforcement negotiations. This will include using innovative strategies like integrated planning and adaptive management to negotiate the most cost effective wet weather program, as well as addressing implementation challenges and pursuing modification to your enforcement order.
Participants will also have an opportunity to engage in separate roundtable discussion with their peers on these issues, exchanging ideas, sharing experiences, and networking with other clean water colleagues. All Workshop attendees will also receive early access to NACWA’s updated Wet Weather Consent Decree Handbook, an invaluable tool for any utility negotiating, implementing, or renegotiating a wet weather enforcement order.
The April 8 hotel deadline for the Workshop is quickly approaching – hurry and reserve your spot today!
The deadline to submit applications for the Excellence in Management Recognition Program is Wednesday, April 1. No foolin’!
The deadline to submit applications for Peak Performance Awards is Friday, April 3.
NACWA’s online network, Engage™ has had an active week. Here are just a few of the topics currently trending on Engage™.
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