» Clean Water Current Archive

May 14, 2010

NACWA Prepared for Legal Action on Blending at Appropriate Time

As concerns about EPA’s position on peak excess flow “blending” continue to be raised, the Association remains focused on ensuring that its position on this issue is clear – and in the best interests of its Member Agencies, and the municipal community as a whole.  NACWA remains ready to protect the interests of its Member Agencies by filing a legal challenge against EPA at the appropriate time.  NACWA does not believe a judicial challenge is appropriate or viable at this time since the Agency has yet to take an action that could be considered “final agency action” for the purposes of filing a valid lawsuit.  This understanding was reinforced this week in a letter  sent to NACWA from EPA Assistant Administrator Peter Silva acknowledging that “there are several long-standing issues related to management of wet weather flows” at wastewater treatment plants and stated that EPA hopes “to decide soon on a path forward to resolve those issues.”  The letter also confirms that EPA “has not issued a final policy” with regard to blending.  In our view, without such a final agency policy or a final action, such as federalizing a permit, a federal court will be unwilling to hear the case.

It is NACWA’s position that, at this time, going forward with a costly lawsuit based on the weak evidence currently available would be a disservice to our Member Agencies, particularly in an economic environment where municipal utilities are already struggling with limited resources.  Should the situation change, providing clear evidence of final Agency action – such as the release of a final blending policy or the federalization of a state permit to prohibit blending – NACWA is fully prepared to mount an aggressive legal challenge to EPA’s actions.

The Association has no reservations with regard to suing EPA over blending issues, including a challenge to the proposed 2005 blending policy, if necessary, to support of our member’s interests.  Our engagement on this issue would also include active participation in lawsuits filed by NACWA Member Agencies as an intervenor or amicus curiae.  The Association remains in constant contact with Member Agencies impacted currently by blending developments and is prepared to move forward aggressively, in the legal arena, at the appropriate time.  We will keep the membership updated as this matter evolves.

EPA Releases Federal Strategy for Chesapeake Bay Restoration

EPA announced on May 12 a new federal strategy  for cleaning up the Chesapeake Bay that outlines a series of significant federal and state mandatory actions intended to help most of the waterbodies within the Chesapeake Bay watershed achieve water quality standards by 2025.  The ambitious document seeks to increase accountability at both the federal and state level for restoring the health of the watershed.  While it applies directly to only the Chesapeake Bay region, it could serve as a model for how the federal government will seek water quality improvements in other parts of the country.  Among the key elements of the strategy is a requirement that each state within the Bay watershed and the District of Columbia develop and adopt watershed implementation plans (WIPs) that will outline how each jurisdiction will achieve its goal of reducing pollutants to the watershed, including a description of how reductions will be achieved from both point and nonpoint sources.  These WIPs must be updated every two years.  Additionally, EPA must review and approve each WIP to ensure that the plans are sufficiently stringent and to ensure the states have sufficient funding in place to achieve the desired pollution reductions.
Of particular concern to NACWA is a clear statement in the strategy that EPA reserves the right to impose more stringent requirements in discharge permits for municipal wastewater treatment plants if a state’s WIP does not adequately meet certain benchmarks.  These include the requirements that state WIPs demonstrate that pollution controls and loading reduction practices from all source categories, including nonpoint sources, have all controls needed to meet clean water goals in place by 2025.  Also, EPA can step in if a state does not make sufficient progress toward achieving the goals of its WIP. 

NACWA is opposed to any approach that punishes publicly owned treatment works (POTWs) due to pollution caused by nonpoint sources, as expressed in the Association’s comments  filed in response to EPA’s draft Chesapeake Bay strategy document released last year.  As NACWA stated in these comments, further reductions in POTW waste load allocations are unlikely to balance out the larger contributions from nonpoint sources, and the enormous amounts of money that POTWs would need to spend to implement further nutrient controls, could be more effectively focused on controlling other sources.  NACWA will continue to work with EPA as it begins to implement its Chesapeake Bay strategy to prevent POTWs from being forced to meet impractical requirements that will do little to improve the overall water quality of the Bay.  The Association will also continue its advocacy efforts on legislation addressing water quality in the Bay and other watersheds to ensure that pollution control requirements are divided equitably between point and nonpoint sources.

In a related development this week, EPA signed a settlement agreement  with activist groups over a lawsuit alleging the Agency’s failure to take adequate actions to restore the health of the Bay.  As part of the settlement agreement, EPA has agreed to take a number of specific regulatory actions by certain dates including the release a new guidance for municipal stormwater permits in the Chesapeake Bay watershed by July 31, 2010, issuing a proposed national stormwater rule by September 30, 2011, and finalizing the stormwater rule by November 19, 2012.   Reducing the runoff from urban stormwater is a significant component of the Bay strategy document and many of the legal requirements agreed to by EPA in the settlement agreement are incorporated in the federal strategy released this week.  Additional information on the Bay strategy can be found on the following website.

New Climate Bill Omits Key Water Adaptation Provisions; NACWA to Seek Inclusion

Senators John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) introduced their climate legislation — The American Power Act — this week devoid of a key water systems adaptation provision being sought by NACWA and the Association of Metropolitan Water Agencies (AMWA).  Following the introduction of the legislation, NACWA issued a press release urging the Senators to include the “Blue Bank” provision that would assist water and wastewater utilities and municipalities in dealing with the adaptation and mitigation challenges from climate change.  “We’re disappointed to see that The American Power Act does not contain any relief for communities faced with the daunting challenges of managing their water resources in the face of climate change,” said NACWA Executive Director Ken Kirk in the Press Release.

A study completed by NACWA and AMWA estimated that the climate adaptation costs faced by water and wastewater systems in the U.S. could approach $1 trillion through 2050.  With this information in mind, NACWA and AMWA will make a concerted push with Senate leadership to have the Blue Bank provisions included in the bill as it progresses.  NACWA staff is currently reviewing the legislation and expect to provide a more detailed analysis of the legislation in the coming weeks.

EPA Rule Limits Greenhouse Gas Controls to Largest Sources, Reflects NACWA’s Comments

EPA also announced a final rule on May 13 that will apply the Clean Air Act prevention of significant deterioration (PSD) requirements to only the largest emitters of greenhouse gases.  For the first six months of 2011, the Greenhouse Gas Tailoring Rule will limit PSD requirements to sources that already meet PSD requirements for other pollutants, and that emit more than 100,000 tons per year (tpy) of carbon dioxide equivalent.  Beginning in July 2011, new sources that emit more than 100,000 tpy will also be included in PSD requirements.  EPA decided on these thresholds after originally proposing a 25,000 tpy threshold, in response to comments received – including comments  by NACWA – that this threshold was too low.

The Agency will bring smaller sources into Clean Air Act requirements in the future, beginning with a new rulemaking in 2012 that will provide a new opportunity for comments.  In a telephone briefing yesterday, EPA stated that entities emitting less than 50,000 tpy would not be included before 2016.  NACWA will continue its engagement in developments regarding Clean Air Act regulation of greenhouse gases and identify potential impacts for clean water agencies.

Massachusetts Developments & Media Coverage Show Trust Fund Momentum Growing

Momentum continues to build for the Water Protection and Reinvestment Act of 2009 (HR 3202) with the addition last week of Massachusetts Congressman John Tierney (D) as the most recent co-sponsor of the bill.  A Boston Globe article about a massive water main break in Boston (that left up to 2 million people without drinkable tap water for 59 hours) also highlighted the need for a national water trust fund.  Several members of Congress were interviewed including Congressman Earl Blumenauer (D-Ore.), chief sponsor, and William DeLahunt (D-Mass.), one of the legislation’s 36 co-sponsors.  “We’re zeroing in on people who get a disproportionate benefit and rely on safe, secure water sources,’’ said Blumenauer when discussing revenue streams, including bottled beverages,  included in the bill.  Representative DeLahunt’s comments focused on the vexing problem of aging infrastructure in dire need of replacement with little financing options available to utilities other than continuing to rely on financing through bond initiatives. “No one wants to pay a fee, but at the same time how do we pay for it?’’ said Representative William D. Delahunt (D-Mass.). “We can’t continue to borrow.’’  NACWA will keep members apprised of progress on HR 3202 as it develops.

NACWA Comments on Hydrogen Sulfide Reporting Requirements

NACWA submitted comments  this week regarding EPA’s Intent to Consider Lifting the Administrative Stay of the Toxics Release Inventory (TRI) reporting requirements for hydrogen sulfide under the Emergency Planning & Community Right-to-Know Act (EPCRA), which could eventually lead to further controls on hydrogen sulfide emissions for public clean water agencies.  EPA had originally planned to add hydrogen sulfide to the TRI requirements in 1993, but then issued an Administrative Stay in 1994 in response to the human health effect basis of the listing.  The Agency has now completed its further evaluation of the human health and environmental effects of hydrogen sulfide, as presented in a February 26 Federal Register notice .  NACWA did not comment on the science behind EPA’s conclusions, but expressed concern that EPA would proceed with listing hydrogen sulfide as a Hazardous Air Pollutant (HAP) under section 112(b) of the Clean Air Act after listing it in the EPCRA.  As stated in the comments, “this could lead to maximum achievable control technology (MACT) requirements, which could require POTWs to cover portions of their treatment plants, address emissions from hundreds of miles of conveyance system piping, and potentially capture and treat emissions.”  NACWA asked EPA to carefully consider the consequences of any future regulations for hydrogen sulfide.  The Association and its Air Quality Workgroup will follow any new developments regarding hydrogen sulfide emissions.  Membership in the Air Quality Workgroup is open to all NACWA members so please contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it to become a workgroup member.