COMMENT ON EPA PROPOSAL - NOVEMBER 18, 2016
CRR has filed a comment on EPA's "Proposed Information Collection Request for the National Study of Nutrient Removal and Secondary Technologies: Publicly Owned Treatment Works" (Docket ID No. EPA-HQ-OW-2016-0404).
The Center, on behalf of its members from 10 states, objects to this EPA proposal as unnecessary, wasteful of local resources, and beyond EPA’s statutory authority. We therefore request that this proposed information production mandate be withdrawn.
To read the full comment, click here.
IOWA LEAGUE OF CITIES: ROUND 2
Following the March 2013 Iowa League of Cities (ILOC) v. EPA ruling which vacated EPA’s blending and bacteria mixing zone prohibitions as illegal rulemaking and/or beyond statutory authority1, USEPA officials indicated that the Agency would limit the application of the ILOC decision to the 8th Circuit. This effectively allows wastewater facilities to blend and utilize bacteria mixing zones in the 8th Circuit states while continuing to ban such practices elsewhere. Regulatory confusion has ensued nationwide, as even the 8th Circuit is composed of seven states in four different EPA Regions (5, 6, 7, and 8). As a result, EPA will inconsistently regulate states within the same EPA Region. The decision to disregard the ILOC ruling outside of the 8th Circuit constitutes a clear violation of the Clean Water Act. The Act was structured to establish uniform technology-based requirements; it does not allow EPA to impose more restrictive rule interpretations on a geographical basis or to ignore Circuit Court decisions rendered under Section 509(b)(1)(E) regarding the validity of such rules. On August 12, 2014, CRR filed suit against EPA in the U.S. Court of Appeals, D.C. Circuit, arguing that EPA must apply the ILOC decision uniformly across all states.
1 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).
SCIENCE ADVISORY BOARD REQUESTED TO REVIEW NEW "SENTINEL METHOD"
EPA Region I has indicated that it is intent on establishing “limits of technology” nutrient reduction requirements for all Taunton Estuary communities. Compliance with this new federal mandate will require construction of wastewater facilities and implementation of stormwater management practices to greatly reduce nitrogen discharges. EPA is basing its mandate on simplified analyses, called the “sentinel method,” that presume nitrogen is causing periodic decreases in dissolved oxygen (DO) levels in the estuary. In this approach, EPA chooses an estuary location with no DO violations and asserts that the nitrogen level occurring at this location is required to be attained throughout the estuary. No analysis of any physical, chemical or hydrological factors affecting nutrient impact dynamics are considered. The method does not even seek to confirm the degree to which plant growth is controlling DO regime responses; it simply presumes attaining the nutrient concentration will result in attainment of the DO objective. Such simplified analyses have been refuted repeatedly as not scientifically defensible by nationally-recognized independent experts (See, e.g., analysis of Dr. Steven Chapra, Professor and Louis Berger Chair, Civil and Environmental Engineering Dept., Tufts University).2
Federal peer review policies require that new or novel scientific methods that could impose costs in excess of $50 million per year undergo independent peer review to ensure that such methods are scientifically defensible. Such a review was undertaken in 2009-2010 in response to regulatory community complaints that simplified methods being applied to generate nutrient criteria for streams were unreliable.
CRR has requested an independent SAB review of the “sentinel method” to ensure that this approach is properly evaluated and confirmed to be “scientifically defensible”. Based on prior SAB peer reviews of other similar simplified methods, one may expect this latest approach in Agency decision making to be heavily criticized and require major technical revisions.
2 Chapra, Steven. (4 Sept. 2014). Assessment of the Scientific Basis of the Taunton Wastewater Treatment Plant Draft NPDES Permit (MA0100897).
WATERS OF THE U.S. - PROPOSED EPA RULE
In April 2014, USEPA released a draft rule redefining “waters of the United States” under the Clean Water Act. The purpose of this updated definition is purportedly to reduce confusion and ambiguity regarding identification of water bodies subject to Clean Water Act jurisdiction.
The draft rule has been heavily criticized as an attempt to significantly expand federal jurisdiction to previously unregulated waters. More generally, this rule has been criticized for causing additional confusion regarding the degree to which primarily intermittent waters (e.g., roadside ditches) will be regulated under the proposed rule -- the opposite result of its reported intent.
CRR will be submitting comments on the proposed rule. These will focus on the logistics of the potential application of the rule. In particular, CRR will request an explanation of which water quality criteria will not apply to intermittent waters that are plainly incapable of maintaining either high quality aquatic life or contact recreational uses. The public comment deadline has been extended to Nov. 14, 2014.
For an independent assessment regarding how EPA’s proposed interpretation may have expanded federal jurisdiction, the Environmental Council of the States (ECOS) and the American College of Environmental Lawyers (ACOEL) released a memo in September containing in-depth analysis of the background, context, and regulatory implications of the proposed rule.3
3 Available at: http://www.energyenvironmentallaw.com/files/2014/09/Waters-of-the-U-S-Final.pdf
NPDES ELECTRONIC REPORTING PROPOSED RULEMAKING
On July 30, 2013, EPA proposed additional regulations for electronic reporting (E-Reporting) of combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and bypass events for publicly owned treatment works (POTWs). On December 1, 2014, EPA published another Federal Register notice (79 FR 71066) raising some e-reporting issues and extending the comment period on the July 30, 2014, proposed regulations until January 30, 2015. In its proposed rulemaking, EPA indicates that “SSOs, including those that do not reach waters of the United States, may be indicative of improper operation and maintenance [O&M] of the sewer system and thus may violate NPDES permit conditions requiring proper operation and maintenance.” 78 F.R. 46029 (July 30, 2013). CRR objects to this reporting requirement as an unlawful expansion of the O&M rule and beyond EPA’s statutory authority, as follows:
The federal O&M rules only apply to operations for attainment of effluent limits (the only aspect of a plant operation that EPA may directly regulate), per Iowa League of Cities v. EPA. The O&M rule was not published to dictate how a collection system must be operated.
Discharges to areas other than waters of the US are not regulated under the Clean Water Act. Thus, EPA lacks authority to regulate basement backups and other such releases that do not and cannot affect waters of the US.
EPA has never adopted a rule governing what constitutes the proper design and operation of a municipal collection system. Assuming EPA has authority to regulate such “treatment works” such rule must be done prior to enforcing a concept of inadequate collection system operation, in accordance with 40 CFR 125.3.
The proposal would require reporting of noncompliance. As EPA has indicated that “[e]ven municipal collection systems that are operated in an exemplary fashion may experience unauthorized discharges under exceptional circumstances,” 75 F.R. 30400 (June 1, 2013), it is unclearwhenmunicipalitieswouldberequiredtoreportoverflowsundertheproposal. Unless EPA published guidelines on what constitutes a “well-operated collection system” there is no objective basis to determine whether or not an event should be considered indicative.
Assuming, for present purposes, that the O&M rule addresses the collection system; a municipality that has overflows and, nevertheless, believes it is properly operating and maintaining its system, should not be required to report the overflow as noncompliance. Inasmuch as there is no clear delineation as to what is proper operation and maintenance, it would appear that the determination as to whether or not the SSO is actually a violation of a NPDES permit is almost entirely subjective. How are municipalities to determine the proper scope of what needs to be reported?
EPA should eliminate the proposed requirement to report overflows based upon potential O&M concerns. Such approach is neither workable nor consistent with applicable requirements.