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On April 22, NACWA’s Board of Directors approved the filing of an amicus curiae brief in the case of Center for Biological Diversity (CBD) v. EPA, which is currently before the U.S. Circuit Court for the District of Columbia Circuit.  NACWA’s brief will support EPA’s three-year deferral of biogenic carbon dioxide (CO2) emissions from Clean Air Act (CAA) Title V and Prevention of Significant Deterioration (PSD) permitting requirements.  CBD’s arguments are aimed primarily at combustion of plant life, not at emissions from publicly owned treatment works (POTWs).  However, if the court decided to vacate the biogenic emissions deferral, emissions from wastewater treatment and the combustion of biogas and biosolids would immediately be included in a POTW’s calculation of their greenhouse (GHG) emissions.  Inclusion of these biogenic emissions would likely cause many POTWs to reach the threshold levels that would require these facilities to obtain CAA permits for their GHG emissions.  This would add significant monitoring, public review, and permitting requirements for POTWs, creating an expensive and unnecessary burden.

NACWA’s brief will provide information about the short life cycle of POTW biogenic emissions as compared to emissions from other sources.  The brief will also outline the significant economic and operational consequences for the nation’s wastewater treatment utilities if the court were to strike down EPA’s deferral.  Specific information from POTWs will be essential for the arguments in the brief.  This Advocacy Alert provides background information on the regulation of GHG emissions and the CBD lawsuit, then details the information needed from NACWA members.  NACWA members with information about the biogenic emissions from their facilities, including life cycle analyses and estimates of the magnitude of emissions, are asked to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/533-1836 by May 11.

Background of Clean Air Act Regulation of Greenhouse Gases

EPA began regulating GHG emissions in January 2011 under the CAA, using tiered emissions thresholds over time to bring sources into the stationary sources permitting programs incrementally.  The GHG Tailoring Rule  established a Tier 1 threshold for the first six months of 2011, requiring facilities that were already subject to Title V and PSD provisions of the CAA to apply these provisions to GHG emissions if these emissions exceeded 75,000 tons per year (tpy) of CO2 equivalent (CO2e).  From July 1, 2011 to June 30, 2013, Tier 2 requirements are in effect, with all facilities that emit over 100,000 tpy CO2e are subject to Title V and PSD requirements.  Although EPA is still determining the Tier 3 threshold that will begin on July 1, 2013, the Agency has guaranteed that the threshold will not be less than 50,000 tpy CO2e before 2016.  All of the threshold levels are based on the potential to emit (PTE), which may be much higher for POTWs than actual emissions.

The GHG Tailoring Rule thresholds did not exclude biogenic emissions, which are produced by living organisms or biological processes and are considered part of the natural carbon cycle.  Biogenic emissions are typically excluded from other state and international GHG inventories and regulations, such as EPA’s annual Inventory of Greenhouse Gas Emissions and Sinks and California’s AB 32 GHG regulations.  In early 2011, EPA announced its intention to defer biogenic CO2 emissions from the Tailoring Rule permitting requirements for three years to better determine how these emissions should be treated under the CAA.  NACWA was supportive of this deferral proposal by EPA as it would exempt – at least for the three-year period – most POTWs from the potentially onerous permitting requirements for CO2 under the Tailoring Rule while the Agency determined how biogenic CO2 should be regulated under the CAA, or if it should be regulated at all.  In response to comments  from NACWA, EPA specifically included emissions from wastewater treatment and the combustion of biogas and biosolids in the final deferral .

EPA has convened a Science Advisory Board (SAB) expert panel to evaluate the accounting methodology for biogenic CO2 emissions from stationary sources.  When seeking nominations for the expert panel, EPA did not list wastewater treatment as one of the expertise areas required for the panel.  NACWA nominated a wastewater treatment expert for the panel, Dr. Nancy Love from the University of Michigan, and emphasized in comments  to EPA the importance of the accounting of biogenic emissions for POTWs; however, Dr. Love was not selected for the panel.  The panel has reviewed EPA’s draft Accounting Framework for Biogenic CO2 Emissions from Stationary Sources , which recommends that biogenic POTW emissions be multiplied by a biogenic accounting factor of zero and therefore be excluded from CAA regulations.  In statements at public meetings and in written comments , NACWA has urged the panel to consider the unique nature of biogenic POTW emissions, and the panel has thus far not recommended changing EPA’s proposal for accounting for POTW emissions.

Center for Biological Diversity Challenges Deferral

Last year, the Center for Biological Diversity (CBD) and a coalition of other activist groups filed a lawsuit against EPA, challenging the Agency’s deferral of biogenic CO2 sources from the Tailoring Rule requirements.  After a series of procedural motions and delays, CBD filed their opening brief  in the case on March 27, 2012, alleging that EPA’s deferral decision was illegal and asking the court to vacate the deferral.  The CBD brief focused primarily on EPA’s deferral for plant life such as wood or grasses.  CBD argues that EPA failed to justify the deferral under the “administrative necessity” and de minimis doctrines.  The brief states that EPA “failed to carry its heavy burden of demonstrating that considering biogenic CO2 emissions in the PSD and Title V permitting processes would create administrative difficulties rising to the level of impossibility.”  The brief also states that EPA “failed to demonstrate in this rulemaking that any of the emissions it exempted from the permitting programs were truly de minimis or trivial,” citing the lengthy lifecycle of some types of biomass fuels.

Although CBD’s arguments against the deferral are focused on emissions from the combustion from plant life, and not on the emissions from wastewater treatment or the combustion of biogas or biosolids, they do not differentiate between sources when asking EPA to vacate the deferral.  In addition, EPA’s legal justifications for the deferral are the same for all biogenic emissions sources.  A decision by the court against EPA would likely vacate the deferral for all biogenic emission sources, including POTWs.

Information Needed from NACWA Members for Brief

Again, if the court decided to vacate the biogenic emissions deferral, emissions from wastewater treatment and the combustion of biogas and biosolids would immediately be included in a POTW’s calculation of their GHG emissions.  Inclusion of these biogenic emissions would likely cause many POTWs to reach the threshold levels set in the Tailoring Rule, requiring these facilities to obtain CAA permits for their GHG emissions.  This would add significant monitoring, public review, and permitting requirements for POTWs, creating an expensive and unnecessary burden.  Given the significant impacts that a negative decision in this case could have for NACWA members, the NACWA Board of Directors voted on April 22 to file an amicus curiae brief to support the EPA deferral and provide a national perspective on the potential consequences for POTWs if the court vacates the deferral.

NACWA’s brief will highlight the important differences between biogenic emissions from the wastewater treatment process as opposed to emissions from the burning of plants, trees, and other materials.  The brief will also describe the potential burden to POTWs if biogenic emissions are included in the CAA permitting programs.  To support the arguments in the brief, NACWA needs the following information from members:

• References on the lifecycle of biogenic emissions from POTWs;
• Information on the accounting of biogenic emissions for state or local governments;
• Estimates of biogenic and other GHG emissions from POTWs;
• The expected economic burden of complying with CAA permitting programs if biogenic GHG emissions are included;
• Changes in treatment processes or management of biogas and biosolids that would affect biogenic GHG emissions; and
• Any other information about biogenic POTW emissions that may be relevant.

Please send any information or questions to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by May 11.  NACWA’s brief will be submitted on May 21.