Member Pipeline - Clean Water Current - November 17, 2006
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for the Clean Water Currents ArchiveNovember 17, 2006
EPA Issues Memo Interpreting Key Total Maximum “Daily” Load Decision
EPA issued a final memorandum (http://www.nacwa.org/getfile.cfm?fn=2006-11-15anacostia.pdf) this week attempting to clarify and provide some flexibility in how daily discharge limits in permits should be expressed to comply with total maximum daily load (TMDL) requirements. The memo, Establishing TMDL ‘Daily’ Loads in Light of the Decision by the U.S. Court of Appeals for the D.C. Circuit in Friends of the Earth, Inc. v. EPA and Implications for NPDES Permits, recommends that “all future TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments.” However, EPA also states in the memo that the D.C. Circuit decision, which addressed TMDLs for Washington D.C.’s Anacostia River, does not require “any changes to EPA’s existing policy and guidance describing how a TMDL’s wasteload allocations are implemented in NPDES permits.” In Friends of the Earth, the D.C. Circuit held that two TMDLs did not comply with the Clean Water Act because they were not expressed as “daily” loads. NACWA is supporting its member, the District of Columbia Water & Sewer Authority (D.C. WASA), in appealing the case to the U.S. Supreme Court and submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-07-27DLcmts.pdf) on a draft of EPA’s memo back in July. NACWA has also met with EPA officials more recently to discuss the TMDL memo.The memo also addresses the difference of opinions on the daily load issue between the D.C. Circuit and the U.S. Court of Appeals for the Second Circuit, which held that the term “TMDL” was susceptible to a broader range of meanings than simply “daily.” In a footnote, the memo states that “EPA encourages the three states within the Second Circuit to submit TMDLs with ‘daily’ loads in a manner consistent with this memorandum.” Despite this seemingly strict interpretation of “daily,” however, the memo addresses NACWA’s overarching concern that significant flexibility should be allowed in how to calculate such a daily number. The memo provides this flexibility by noting that a “daily” load can be expressed as a range that can change on a seasonal basis. The memo says that the EPA will issue additional technical guidance providing specific information regarding the establishment of daily loads for specific pollutants. EPA will also file its response to D.C. WASA’s petition for Supreme Court review next week. NACWA will provide further details on this memo and the ongoing litigation to members via future Alerts and Update.
NACWA Comments on EPA Draft Significant Noncompliance Policy
NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-11-13epaltr.pdf) this week on draft revisions to EPA’s Significant Noncompliance (SNC) Policy (http://www.nacwa.org/getfile.cfm?fn=2006-08epasnpdraft.pdf) stating, among other things, that many of the issues would be better addressed in a formal rulemaking for sanitary sewer overflows (SSOs). “NACWA does not believe that `rulemaking through guidance’ is an effective approach, particularly regarding a national issue like SSOs, and encourages EPA to move forward expeditiously on a national SSO rule or policy,” the comments said.The draft guidance was not circulated publicly for comment, but the Association deemed it necessary to weigh in because of its importance to NACWA members and because of its emphasis on wet weather. NACWA provided general comments that seek clarification on a number of issues, including that the permitting authority should not designate an overflow as SNC if “there are mitigating circumstances” and that portions of the draft guidance may duplicate certain permit provisions. In addition, the comments stress the importance of the SNC definition for NACWA members and points out that the definition of significant overflow in the draft policy is too broad, extending beyond the reach of the Clean Water Act. While NACWA supports EPA’s intentions to include wet weather events in its SNC guidelines, the draft policy should not apply to violations that are addressed in a formal enforcement action, such as a consent order to address SSOs. NACWA will continue to track this issue and provide input to EPA as this policy continues to evolve.
NACWA Member Agencies Get Another Victory in Challenging Kern County Ban
Los Angeles, the Sanitation Districts of Los Angeles County, and the Orange County Sanitation District, all NACWA members, scored another impressive victory this week in their effort to overturn Kern County’s ban on the land application of biosolids. A judge for the U.S. District Court for the Central District of California indicated he would grant a preliminary injunction in favor of the city and surrounding areas saying the ban most likely conflicts with a state law designed to reduce the amount of waste sent to landfills. Biosolids from the three Southern California jurisdictions most likely would have been sent to a landfill or incinerated if the lawsuit challenging the ban had failed. NACWA believes this case could set an important precedent for other communities seeking to maintain the flexibility to dispose of their biosolids in a way that best suits their needs and will keep members informed of developments.NACWA Completes Successful 2006 Clean Water Law Seminar in Boston
NACWA’s 2006 Clean Water Law Seminar in Boston this week was well attended and received positive reviews from participants. Presented in cooperation with the American Bar Association (ABA) and the New England Water Environment Association (NEWEA), the Seminar opened with a keynote address from Jody Freeman, director of Environmental Law at Harvard Law School, who spoke about environmental innovation at the local level. “You are not alone if you are doing something new and innovative,” she said, outlining many of the regulatory approaches that are currently being used by EPA at the municipal level. She then engaged in a discussion with Seminar participants about various innovative environmental techniques NACWA members are using at home.Jane Downing, chief of the drinking water unit at EPA Region I, discussed pandemic preparedness for public utilities, telling the audience that despite all of the public fear over a possible pandemic, “the sun will rise tomorrow” for clean water utilities as long as they are responsible in their emergency preparedness planning. Finally, John C. Cruden, deputy assistant attorney general and chief of Environmental Enforcement at the U.S. Department of Justice, gave an insider’s perspective about municipal Clean Water Act enforcement, noting that “I honor what you do,” and “you are all environmentalists.”
Other panels focused on traditional and non-traditional defenses, collaboration between in-house and outside counsel, records retention, citizen suit trends, negotiating strategies, and the legal aspects of watershed based trading. The 2006 Clean Water Law Seminar was a great success, and planning is already underway for the 2007 Seminar. Presentations from the Law Seminar will be posted on NACWA’s website next week.
Online Registration Now Available for NACWA’s 2007 Winter Conference
Join your clean water colleagues Jan. 30 – Feb. 2, 2007 for NACWA’s 2007 Winter Conference – Global Trends Impacting Public Utilities . . .The Rising Cost of Clean. This year’s program will examine the increasing financial pressures municipalities face from external, sometimes global forces. With environmental regulations, consent decrees, and other mandates forcing municipalities to plan their capital improvement budgets years and often decades into the future, the added level of uncertainty with regard to how far the municipal dollar will ultimately go is of critical importance. Attire for the winter conference is business casual. Online conference registration and the agenda are now available, so please visit NACWA’s website, www.nacwa.org/meetings/07winter, for the most up-to-date information on the 2007 Winter Conference. Register today!