Action Please By:
January 18, 2008

On November 27, the Natural Resources Defense Council (NRDC) filed a formal Petition for Rulemaking with the U.S. Environmental Protection Agency (EPA) addressing the issue of secondary treatment standards for nutrient removal at publicly owned treatment works (POTWs).  NRDC was joined in filing the petition by a number of other national and regional environmental groups.  The petition requests that EPA publish updated information on the state of secondary treatment technology for POTWs and that EPA issue generally-applicable nitrogen and phosphorous removal requirements for wastewater treatment plants.  This Legal Alert briefly summarizes the key components of the petition, and requests member comments on some specific aspects of the petition to aid NACWA in preparing comments to EPA in response to the petition.  All member comments are requested by COB on Friday, January 18, 2008, and can be submitted to Nathan Gardner-Andrews, NACWA’s Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Summary of Petition for Rulemaking

NRDC’s petition calls on EPA to “promptly fulfill its obligations under the Clean Water Act (CWA) to publish information on the state of effluent treatment technology for publicly owned treatment works.”  In particular, the petition requests information from the Agency on the current ability of POTWs to reduce nutrient pollution through the use of secondary treatment processes.  The petition then makes an additional request that EPA publish national nutrient removal requirements at wastewater treatment facilities.   The petition contends that limits of 1.0 milligrams per liter (mg/L) total phosphorus (TP) and 8.0 mg/L total nitrogen (TN) averaged yearly can be met by applying existing technology to improve conventional biological treatment processes and that limits of 0.3 mg/L TP and 3 mg/L TN are achievable using currently available technology.

The petition includes four broad areas of discussion.  In the first section NRDC outlines potential environmental impacts of nutrients on receiving waters and states that such pollutants must be controlled under the Clean Water Act.  Among the harms cited by NRDC as a result of nutrient pollution are the existence of hypoxia “dead” zones in places like the Chesapeake Bay and Gulf of Mexico where there is not sufficient dissolved oxygen concentrations to support aquatic life.  The petition criticizes EPA’s lack of effort thus far to regulate nutrients through secondary treatment processes and alleges that such action is required of the Agency under the CWA.

The second section discussed the statutory and regulatory background of secondary treatment, including an overview of the regulatory history of EPA’s definition of secondary treatment.  As part of this review NRDC alleges that EPA’s secondary treatment regulations have not been materially updated since 1985.  The petition also reviews previous legal efforts to require EPA regulation of nutrients as part of the secondary treatment process and outlines why EPA has declined to do so.  Included in this discussion is a review of a 2003 petition by the Chesapeake Bay Foundation (CBF) to require nitrogen limits and the subsequent denial by EPA of CBF’s request.

Section three of the petition encompasses an extensive discussion on why NRDC believes nutrient removal can be accomplished using existing technology that qualifies as secondary treatment. The petition challenges EPA’s previous assertions that secondary treatment cannot effectively remove nutrients, and it contends that current secondary treatment technology is capable of significant nutrient reduction.  The petition then launches into an extensive discussion of biological nutrient removal and technologies that are alleged to provide cost effective biological nutrient removal as part of secondary treatment.   NRDC provides an explanation of why it believes such processes can be incorporated into POTWs for relatively little cost and states that such biological systems can achieve total phosphorus levels of 1.0 mg/L and total nitrogen levels of 6 – 8 mg/ L as an annual average.

Section four outlines NRDC’s  position that EPA has a statutory duty under the CWA to publish “from time to time” an assessment of the state of the science concerning the ability of secondary treatment to remove pollutants, and that EPA has failed to meet this requirement by not materially publishing such an assessment since 1985.   Accordingly, NRDC argues that EPA must publish such an assessment and include a revision of secondary treatment standards to reflect technical advances which now allow for nutrient removal as part of secondary treatment.  The petition further contends that such advances allow for EPA to establish national limits for nitrogen and phosphorus removal as part of secondary treatment and to require all POTWs to comply with such nutrient limits.

Possible Support of Petition by ASIWPCA

NACWA has also learned that the states, through the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), are supportive of national technology-based limits for nutrients, similar to the proposal outlined in the NRDC petition.  Although ASIWPCA has not formally indicated its support for the petition, recent correspondence from ASIWPCA to EPA regarding technology thresholds for nutrients suggests that support may be forthcoming.  NACWA will continue a dialogue with ASIWPCA to express our concerns with such an approach and to determine ASIWPCA’s reaction to the petition.

Request for Member Comments

As part of NACWA’s response to this petition, we are requesting that members carefully review the petition and provide us with comments.  In addition to any general member comments on the petition, we request comments on the following three specific issues:

1. Technical Aspects: The petition, particularly in Section III, alleges that current secondary treatment technology can achieve significant nutrient reductions and that additional biological nutrient reduction processes can easily be added to secondary treatment to achieve even greater nutrient removal.   NACWA would appreciate any member comments on the accuracy of the technical statements made in the petition, including the statement that limits of 0.3 mg/L TP and 3 mg/L TN are “consistently attainable using current technology,” and that limits of 1.0 mg/L TP and 8.0 mg/L TN averaged yearly “can be met with existing technology that uses only improved conventional biological treatment processes.”  Any critiques of the various biological treatment processes outlined in Section III would also be appreciated.
   
2. Cost: NACWA is very concerned about the potential cost implications if POTWs were required to include nutrient removal as part of secondary treatment.  Any cost estimates NACWA members can provide relating to potential expenses for their utilities to meet the nutrient removal levels outlined in the petition would be helpful in making this argument.  Additionally, any member comments on the cost estimates provided in the petition are welcome.
   
3. Effect on Existing Water Quality-Based Efforts: A move towards more stringent technology-based limits for nutrients as outlined in the petition could have a negative effect on existing water quality-based efforts, such as nutrient trading.  NACWA would like to know from its members whether there are any existing water quality efforts in your area that would be undermined by national removal requirements for nutrients.

All member comments can be submitted to Nathan Gardner-Andrews, NACWA’s Counsel, at ngardner-andrews@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .  All comments should be submitted by COB on Friday, January 18, 2008.

NACWA Next Steps

The NACWA Water Quality and Legal Affairs Committees will be working to develop an appropriate response to the petition based on member comments received during the next few weeks.  NACWA anticipates submitting comments to EPA in late January or early February 2008.  Additionally, NACWA will continue discussions with other municipal groups regarding the petition.  Although EPA has no legal requirement to respond to the petition, NRDC does have a right to pursue legal action if EPA denies the petition or does not respond to the petition within a reasonable period of time.   EPA is not expected to make a decision regarding the petition until after it has first reviewed NACWA’s comments.  NACWA will continue to closely track this matter and will report any developments to the membership.