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Inside EPA's
Water Policy Report
an exclusive biweekly report on federal water quality programs and policies
Vol. 23, No. 25 — December 15, 2014
8th Circuit Appears To Back Bid For Review Of CWA Findings
U.S. Court of Appeals for the 8th Circuit judges at oral arguments appeared to back property
owners’ claims that they can pursue judicial pre-enforcement review of Clean Water Act (CWA)
jurisdiction findings, which could create a circuit split on whether the findings are reviewable and
force the Supreme Court to weigh in to resolve the fight. At Dec. 11 oral arguments in Hawkes Co.,
et al. v. U.S. Army Corps of Engineers, judges called the Corps’ claim that jurisdictional
determinations (JDs) are exempt from judicial review “government by regulatory tyranny,” and
questioned “how the Corps is hurt” by suits over JDs. Jurisdictional Determinations, Page 3.
EAB Favors EPA’s Power Over ‘Satellite’
Sewers, But Doubts Procedure
Judges on EPA’s Environmental Appeals Board (EAB) appear
ready to uphold EPA’s authority to require Clean Water Act (CWA)
permits for municipalities’ “satellite” sanitary sewer collection systems,
but the board is signaling that it will remand on procedural grounds the
contested permit, which would delay any appeal on the merits. A threejudge panel of the EAB aimed pointed questions at the attorney
representing municipal petitioners during Dec. 11 oral arguments in In
re: Charles River Pollution Control District, asking how they could hold
that EPA cannot permit satellite systems without also striking down
similar permit arrangements in other contexts, such as storm sewers,
which are generally agreed to be legal. Permits, Page 7.
Stakeholders Back EPA FY15 Bill’s Rider
Scrapping CWA ‘Interpretive’ Rule
Agriculture industry officials and some environmentalists are
generally backing an omnibus fiscal year 2015 funding bill rider that
would force the administration to scrap an “interpretive” rule clarifying
agricultural practices that are exempt from Clean Water Act (CWA)
permits, given broad criticism of the rule for its alleged legal flaws.
CWA Jurisdiction, Page 11.
Judges Conflicted On Setting Precedent
In Suit Over CWA Petition To EPA
Appellate judges at oral arguments appeared conflicted on setting a
broad precedent in advocates’ suit aiming to force a substantive response
from EPA to their petition seeking Clean Water Act (CWA) standards for
the Mississippi River Basin, fearing a ruling could either give EPA too
much or too little leeway on addressing petitions. EPA in the suit, Gulf
Restoration Network (GRN), et al. v. EPA, is asking the U.S. Court of
Appeals for the 5th Circuit to overturn a district court’s order for EPA to
craft a response to environmentalists’ CWA petition for a determination
that Mississippi River Basin states are not adequately regulating
nutrients, arguing courts have no jurisdiction to review an agency’s
decision to reject such petitions out of hand. Litigation, Page 13.
Stormwater Permit Changes Eyed
Regulated entities are watching
state and federal regulators’ actions
on recent stormwater permits in the
wake of a new EPA memo
withdrawing its controversial 2010
guidance on using runoff “flow” as a
surrogate for pollutants in discharge
limits, saying the revised guide could
open the door to a wider variety of
permit conditions if authorities
choose to pursue them. Page 15.
Industry Faults Dioxin Study Plan
EPA’s pending Clean Water Act
(CWA) study of releases of dioxin
and dioxin-like compounds from
petroleum refineries’ wastewater
discharges is drawing data quality
and other legal challenges from the
refining industry, charging that the
agency is inappropriately relying on
Toxics Release Inventory (TRI) data
and overstepping its CWA authority.
Page 16.
EPA Touts State Trading Rules
EPA officials say the agency has
no plans to update its 2003 guidance
on water quality trading, and that any
current weaknesses in trading
programs can be addressed by
stronger, clearer language in stateissued Clean Water Act (CWA)
permits. “The issue we are asked
most often is: can you codify trading
in your regulations, which we cannot
do,” EPA’s Bob Rose, who oversees
water trading issues, said at a recent
conference.” Page 20.
Background Documents For This Issue
Subscribers to InsideEPA.com have access to hundreds of documents, as well as a searchable
archive of back issues of Water Policy Report. The following are some of the documents available
from this issue of Water Policy Report. For a full list of documents, go to the latest issue of Water
Policy Report on InsideEPA.com. For more information about InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Water Policy Report:
„
Children’s Advisors Urge EPA To Strengthen Draft Fish Advisory
„
Congress, President Urged To Protect Great Lakes From Cyanotoxins
„
EAB Considers CWA Permit Requirements For ‘Satellite’ Sewers
„
EAB Dismisses Challenge To CCS Permit For ADM Project
„
Environmentalists Renew Request To Move Cooling Water Suit To 2nd Circuit
„
Environmentalists Seeks Revisions To Corps’ CWA JD Process
„
EPA Declines To Consult Advisory Panel For RMP Updates
„
EPA Urged To Consider Variable Water Rates In Affordability Framework
„
GOP Senators Weigh ‘Flexibility’ Bill To Aid Water Infrastructure
„
Groups Back Supreme Court Review Of CWA ‘Jurisdiction’ Findings
„
Judge Orders EPA To Halt All Work On Pebble Mine Veto
„
Lawmakers Unveil Compromise Omnibus Appropriations Bill For FY15
„
Mining Company Files New Appeal Over EPA’s CWA Permit Veto
„
NMFS Issues Final BiOp For CWA Streamlined Permit Program
„
Oil Industry Criticizes EPA Plan To Study Dioxins In Wastewater
„
Revised EPA Stormwater Memo Removes ‘Flow’ Permitting Language
„
Senate Approves Bill Requiring EPA To Consider Algal Blooms Standard
„
Senators Question EPA Progress On Facility Safety Rules
Not an online subscriber? Now you can still have access to all the background documents referenced in this issue through
our new pay-per-view Environmental NewsStand. Go to www.EnvironmentalNewsStand.com to find out more.
2
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
Jurisdictional Determinations
8th Circuit Appears To Back Bid For Review Of CWA Jurisdiction Findings
U.S. Court of Appeals for the 8th Circuit judges at oral arguments appeared to back property owners’ claims that they
can pursue judicial pre-enforcement review of Clean Water Act (CWA) jurisdiction findings, which could create a circuit
split on whether the findings are reviewable and force the Supreme Court to weigh in to resolve the fight.
During the Dec. 11 oral arguments in Hawkes Co., et al. v. U.S. Army Corps of Engineers, judges called the Corps’
claim that jurisdictional determinations (JDs) are exempt from judicial review “government by regulatory tyranny,” and
questioned “how the Corps is hurt” by lawsuits challenging JDs prior to any enforcement actions.
Agencies such as EPA and the Corps use the JDs to determine which waterbodies are subject to various CWA
requirements. At least one other circuit has ruled on the issue in the Corps’ favor, with the 5th Circuit’s July 30 decision in
Belle Company, LLC, et al. v. U.S. Army Corps of Engineers saying the findings are not reviewable.
8th Circuit Judge James B. Loken however said at arguments in Hawkes that “I disagree with Belle. . . . I respect the
analysis, but it’s conventional pro-agency analysis,” suggesting the findings should be reviewable.
If the appellate court — which covers North Dakota, South Dakota, Nebraska, Iowa and other states — finds that JDs
are reviewable then it would be a decision at odds with the conclusion in Belle. That would mean a split with the 5th
Circuit, which covers Texas, Louisiana and Mississippi. A split would make it more likely that the Supreme Court could
grant an appeal of either case in order to resolve the divergent rulings.
Belle is now the subject of a petition for a writ of certiorari for the high court to take the case, under the title Kent
Recycling Services v. U.S. Army Corps of Engineers.
The Corps’ response is not due until Dec. 31, but industry and conservatives, including Sen. David Vitter (R-LA),
have already filed amicus briefs supporting review.
At issue in both the Kent appeal to the high court and the Hawkes appellate suit is whether the recipient of a JD can
challenge the jurisdictional nature of a waterbody in court immediately, or must wait for regulators to take an additional
“final action” as defined by the Administrative Procedure Act (APA) — either issuing a discharge permit or taking
enforcement action against the property owner — which would then be subject to suit.
But during the Hawkes arguments, Loken said the Corps is interpreting the definition of “final action” too narrowly.
“The Supreme Court’s interpretation of the APA’s finality requirements is flexible and pragmatic. And you are treating it
as inflexible and absolute. . . . If [the JD] had been in a judicial determination, in a district court, it would have been
subject to . . . pragmatic and needed interlocutory review. The Corps, by your argument, is ruling that out for all the
people it regulates,” he said.
Judge Myron H. Bright asked why the Corps would oppose pre-enforcement review as a practical matter. “I want to
know how the government is prejudiced if . . . the only issue to be decided is whether or not the act falls under the
jurisdiction of the Corps. Tell me how the Corps is hurt by that,” he said.
The judges also seemed to back industry arguments that the Corps’ position forces a property owner to either
shoulder the expenses of a permit application or risk criminal penalties for illegal discharges for no compelling reason.
“I can’t see much difference between this and a final action, for example, if the plaintiffs here went ahead without a
permit, and the Corps penalized them, and fined them, and took it up to court. The same issues would be there. Here, we
get away from the risk of the plaintiff having to spend a lot more money, and one of the only way to proceed is to subject
the plaintiff to fine and maybe to criminal sanctions,” Loken said.
Despite that claim, the Corps allows property owners to file an administrative appeal of a JD. At the Hawkes arguments,
Judge Jane Louise Kelly questioned why the Corps allows such appeals if the JDs are not suitable for review in court.
“What’s the purpose of having the agency allow for sort of a mini-review of that decision initially, then? Why isn’t it
just part of the entire permit process? It seems like the agency has treated that decision differently” from the overall
permit, she said.
The 8th Circuit judges had comparatively minor questions for industry attorney Reed Hopper during his segment of
argument, focused mainly on whether Hawkes could be certain that its application for a permit to excavate peat from a
Minnesota wetland would be rejected, and why it would be expensive to see the process through if there was already no
question as to the result.
“If you were so confident that the Corps was going to deny the permit, what’s the ‘great cost’ in riding it through to
denial? If you’re confident the agency’s position is that you cannot mine for peat on this wetland, that shouldn’t take a
half a million dollars and three years to get a final action,” Loken said.
He stopped short of agreeing with Hopper’s argument that blocking judicial review of JDs until the end of the
permitting process is “discriminatory” against property owners who cannot afford the cost of an application. “What
Supreme Court case supports that assertion? To my knowledge, none,” Loken asked.
While courts have consistently ruled that JDs are not “final” under the CWA because they do not carry legal consequences, industry has argued in new cases, including Hawkes and Kent, that the Supreme Court’s landmark 2012 decision
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
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Jurisdictional Determinations
in Sackett v. EPA implicitly overrules those past decisions.
The high court in Sackett opened the agency’s CWA compliance orders, as well as some other pre-enforcement
actions, to suit, ruling that because such orders open recipients to enhanced penalties for violating the water law, they
satisfy the test for “final action.” Industry says the same logic should apply to JDs, but EPA and the Corps have countered
that because a JD is not an “order” subject to violation, it cannot be independently challenged.
In Sackett, the justices held that recipients of CWA compliance orders can challenge the orders in court even
before the agency seeks to enforce them, placing a major hurdle in front of regulators’ efforts to force voluntary compliance or require the agency to amend language in the orders.
Writing for the court, Associate Justice Antonin Scalia found that the compliance orders, as currently crafted,
constitute “final agency action” under the APA and are eligible for judicial review.
Scalia’s opinion in Sackett did not explicitly call for expanded court review of compliance orders issued outside of
the CWA framework. But the ruling said compliance orders that carry the threat of fines or other penalties for noncompliance may be subject to pre-enforcement review, which has been widely seen as opening the door to challenges against
orders issued under other statutes that rely on a similar enforcement approach as the CWA, as well as jurisdictional
determinations under the CWA.
But in the 5th Circuit’s decision in Belle, Judge Stephen A. Higginson says a JD lacks the hallmarks of “final action”
that the justices cited to support their ruling in Sackett. “[T]he use of the JD in assessing future penalties is speculative,
whereas in Sackett the order caused penalties to accrue pending restoration of the property,” the decision says.
Industry has argued that even though there are no direct fines or other consequences for ignoring a determination, the
existence of a JD can be evidence that a property owner did not act in “good faith” — which can increase the legal
penalties for CWA violations.
A determination “puts a recipient on notice that the Corps has determined that its parcel contains jurisdictional
waters. If the landowner disagrees with that determination and begins development activity, the Corps will likely argue in
any later enforcement proceeding that the landowner was on notice and therefore should be assessed a greater civil
penalty,” industry groups argued in a Dec. 1 amicus brief to the high court in Kent.
The brief cites CWA section 309, which allows enhanced penalties for “knowing” violations of the act, including prison terms. Because a JD “establishes knowledge of CWA jurisdictional waters, it has legal effect,” the brief
says. — David LaRoss
Vitter, Industry Seek Supreme Court Review Of CWA ‘Jurisdiction’ Findings
Sen. David Vitter (R-LA), conservative think tanks and various industry groups are backing a recycling company’s
push for the Supreme Court to mandate that courts can pursue pre-enforcement review of agencies’ determinations that
waterbodies are “jurisdictional” and subject to Clean Water Act (CWA) limits and permit requirements.
The supporters of judicial review of the jurisdiction findings outline their arguments in new amicus briefs filed with
the high court urging it to grant the recyclers’ case, Kent Recycling Services v. U.S. Army Corps of Engineers, and open
regulators’ CWA jurisdictional determinations (JDs) to pre-enforcement review.
West Virginia has also been added to the case record as an amicus party, signaling that it intends to submit a separate
brief on behalf of 11 states, but that brief had not been filed at press time.
The briefs filed by Vitter, the think tanks and the industry groups all argue that the justices should make clear that
their landmark 2012 decision Sackett v. EPA, which opened the agency’s CWA compliance orders, as well as some other
pre-enforcement actions, to suit, applies to JDs as well — despite lower courts’ rulings that the determinations are not
reviewable “final actions” because they do do not carry legal consequences.
For example, the industry brief says “If the jurisdictional claim in Sackett is subject to review, a formal administrative
decision such as [a JD] should certainly be subject to review. . . . Indeed, if there are no legal consequences flowing from [a JD],
what is it binding the government to?” Relevant documents are available on InsideEPA.com. See page 2 for details.
The amicus brief is signed by the American Farm Bureau Federation, American Petroleum Institute, National Mining
Association, National Association of Home Builders and Utility Water Act Group.
Vitter, the current ranking member on the Senate environment panel, says in his brief that if JDs are not subject to
court review, “Property owners who wish to develop their property will be placed in the untenable position of proceeding
with development and risking steep civil and criminal penalties, engaging in an expensive and time-consuming federal
permit process, or abandoning their use of the property altogether.”
To date, federal district courts and the U.S. Court of Appeals for the 5th Circuit in Kent have held that while JDs are
final agency actions, they are only advisory findings with no legal impact and thus cannot be the subject of lawsuits,
regardless of the Sackett ruling.
The Kent litigation was decided July 30 under the title Belle Company, LLC, et al. v. U.S. Army Corps of Engineers.
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Jurisdictional Determinations
The recycling company is now urging the high court to hear its petition for a writ of certiorari to hear its appeal of the
appellate court’s decision.
The 5th Circuit ruled that recipients of JDs who seek to challenge the finding must apply for CWA discharge permits
and then sue over the permit terms on the merits, or discharge without a permit in defiance of the JD and address jurisdiction in enforcement proceedings for alleged CWA violations.
However, industry in its brief says that arrangement would be counter to the logic expressed by the high court in
Sackett. “[S]everal justices recognized the unfairness of requiring a landowner to apply for and obtain a permit for areas
they believe should not require a permit in the first place,” the industry brief says.
The 5th Circuit is thus far the only appellate court to rule the potential for judicial review pre-enforcement of JDs
since the high court issued the Sackett decision.
But the 8th Circuit has set a Dec. 11 date for oral arguments in a similar suit, Hawkes Co., et al. v. U.S. Army Corps
of Engineers — creating the possibility that a quick ruling could open a circuit split on whether pre-enforcement JDs are
subject to judicial review before the Supreme Court justices decide whether to review Kent. A circuit split would be more
likely to persuade justices to take the case than simply reviewing the 5th Circuit’s decision.
In their brief, the industry groups focus on what they claim are the long-term impacts of JDs on property owners, in
order to counter the 5th Circuit’s statements that they are merely advisory.
Industry argues that even though there are no direct fines or other consequences for ignoring a determination, the
existence of a JD can be evidence that a property owner did not act in “good faith” — which can increase the legal
penalties for CWA violations.
A determination “puts a recipient on notice that the Corps has determined that its parcel contains jurisdictional
waters. If the landowner disagrees with that determination and begins development activity, the Corps will likely argue in
any later enforcement proceeding that the landowner was on notice and therefore should be assessed a greater civil
penalty,” the industry brief says.
The brief cites CWA section 309, which allows enhanced penalties for “knowing” violations of the act, including
prison terms. Because a JD “establishes knowledge of CWA jurisdictional waters, it has legal effect,” the brief says.
Vitter in his brief argues that JDs should be reviewed because of their practical effects on property owners and
local economies. The senator argues that making the findings unreviewable in court will depress economic growth as
businesses that lack the resources to apply for a permit or endure enforcement proceedings opt not to build on potentially
jurisdictional wetlands.
He links the case to EPA’s controversial proposed rule to define which waterbodies are jurisdictional under the CWA,
which Republicans have charged would greatly expand the waters subject to the law beyond the limits that Congress
intended.
The jurisdiction rule “would further broaden the scope of the EPA and the Corps’ authority over private property,
enhancing the concerns presented in this case. Businesses would opt not to take the risk of beginning to develop properties that may be subject to a costly permit process and mitigation. The inability to challenge jurisdictional determinations
could have a chilling effect on needed economic development,” the brief says.
Meanwhile, the Center for Constitutional Jurisprudence says the justices should review Kent because it implicates
constitutional property rights and land-use concerns, especially in the requirement for JD recipients to seek permits they
believe are unnecessary in order to open an avenue of judicial review.
“[A] Jurisdictional Determination that leaves a property owner the choice of leaving his property unused, incurring
massive expense and delay of administrative proceedings, or risking criminal prosecution has a real and immediate
impact. A challenge to the final decision of the Army Corps of Engineers that the property contains wetlands is therefore
justiciable,” the brief says.
The Corps’ brief in opposition to cert is due Dec. 31. — David LaRoss
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WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
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Jurisdictional Determinations
Advocates Urge Agencies To Improve Water Jurisdiction Finding Process
Environmentalists are urging EPA and the Army Corps of Engineers to craft a specific process for issuing Clean
Water Act (CWA) jurisdictional determinations (JDs) that includes a way to track decisions on specific waterbodies,
saying it is vital to help guide future JDs and ensure the success of the agencies’ pending CWA jurisdiction rule.
“The proposed rule does not include any mechanism by which it will memorialize, and incorporate into subsequent
decisions, case-by-case determinations that particular water bodies have a significant nexus with downstream waters and
thus are covered by the law,” the Natural Resources Defense Council (NRDC) says in recent comments filed on the
proposed rule to define the scope of the water law. “It is essential that the agencies establish such a process,” the comments say. Relevant documents are available on InsideEPA.com. See page 2 for details.
They suggest that JDs should be posted to a publicly available
website and retained for their entire five-year duration and develop a list of
waters that have been found to be jurisdictional under case-by-case analysis,
NRDC points out in its
to allow the Corps to better identify “similarly situated” waters that might
comments on the CWA
also be jurisdictional.
rule that improved
Under CWA regulations, the Corps issues JDs to document its
tracking of JDs is critical
determinations on whether a water is subject to the law and, if so, must
to implementing a final
comply with CWA requirements such as 404 permits governing dredge-andfill material.
jurisdiction policy.
NRDC’s remarks come as the U.S. Court of Appeals for the 8th
Circuit is slated Dec. 11 to hear oral arguments in Hawkes Co., et al. v. U.S.
Army Corps of Engineers, an industry suit seeking judicial review of JDs.
A favorable ruling for industry would open JDs to legal challenges under the test the Supreme Court set in its 2012
decision Sackett v. EPA, which opened the agency’s CWA compliance orders, as well as some other pre-enforcement
actions, to suit, but did not address challenges to JDs.
Industry is also asking the Supreme Court in separate litigation to review a 5th Circuit decision in Kent Recycling
Services v. U.S. Army Corps of Engineers, in an effort to convince the justices to expand Sackett directly. There, the 5th
Circuit held that a JD lacks the hallmarks of “final action” that the justices cited to support their ruling in Sackett, and that
earlier decisions rejecting review of JDs remain valid.
NRDC points out in its comments on the CWA rule that improved tracking of JDs is critical to implementing a final
jurisdiction policy. EPA and the Corps proposed the water rule to clarify confusion stemming from competing Supreme
Court tests for determining when smaller waters and isolated wetlands are subject to CWA jurisdiction.
The agencies took comment through Nov. 14 on the proposed rule, which EPA has repeatedly defended as providing
clarity and not an overreach of its authority, as industry has charged.
The proposal would make all tributaries and all waters and wetlands within riparian and flood areas jurisdictional
while evaluating “other” waters outside of those clarifications, either alone or together with those “similarly situated”
outside of those classifications on a case-by-case basis.
It is designed to end the regulatory confusion left in the wake of the Supreme Court’s divided ruling in 2006 in
Rapanos v. United States. In the decision, Justice Anthony Kennedy ruled in a concurring opinion that waters that share a
“significant nexus” to navigable waters can be regulated under the water law.
By contrast, the plurality opinion, written by Justice Antonin Scalia, held that “relatively permanent” water bodies
that connect to traditional navigable waters and wetlands that have a “continuous surface connection” to such relatively
permanent water bodies, are jurisdictional under the CWA.
“Given that the agencies indicate that finding types of water bodies to be ‘similarly situated’ (and therefore that their
impacts on downstream waters can be aggregated) will result in all such waters in a single point of entry watershed being
found to have a significant nexus, a JD that concludes a particular water body is similarly situated to others in a watershed
and they collectively are found to have a significant nexus is effectively a JD for all of those waters,” NRDC says in its
comments on the proposed rule.
“For administrative convenience and consistency, the agencies should identify the categories of such waters and the
relevant watersheds publicly, such that any subsequent determinations in the watershed need only refer to the prior
determination,” the group says in its Nov. 14 comments.
Meanwhile, the Southern Environmental Law Center (SELC) in Nov. 12 comments on the proposed rule says
that the agencies should in a final rule provide clarity on what information the Corps should use for identifying what
waters are “traditionally navigable” in evaluating significant nexus of downstream waters.
“Undoubtedly when a significant nexus determination is made the applicants, consultants and agencies involved will
be looking to see how the stream, creek, or river at issue has been classified in the past based on whatever information is
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WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
Jurisdictional Determinations
most readily available,” the comments say. In many cases, the Corps relies on studies completed under the Rivers &
Harbors Act, which are often “outdated,” according to SELC.
To address the issue, SELC says the administration should include language in the preamble of a final rule explaining
“all of the different sources of the term, ‘traditional navigable water,’ and clarify that they are all equally applicable in
JDs, and that only one prong of the TNW test — a navigability or use in commerce — is needed.”
Additionally, SELC says, the Corps should state plans in the preamble to issue a regulatory guidance letter further
explaining the TNW test, and explain that any information, including third party data on historic commerce, should not be
automatically superseded by a Corps navigability report. — Bridget DiCosmo
Permits
EAB Favors EPA’s Power Over ‘Satellite’ Sewers, But Doubts Procedure
Judges on EPA’s Environmental Appeals Board (EAB) appear ready to uphold EPA’s authority to require Clean
Water Act (CWA) permits for municipalities’ “satellite” sanitary sewer collection systems, but the board is signaling that
it will remand on procedural grounds the contested permit, which would delay any appeal on the merits.
A three-judge panel of the EAB aimed pointed questions at the attorney representing municipal petitioners during
Dec. 11 oral arguments in in re: Charles River Pollution Control District, asking how they could hold that EPA cannot
permit satellite systems — which are owned or operated by a municipality but convey wastewater to a publicly owned
treatment works (POTW) operated by a separate entity — without also striking down similar permit arrangements in
other contexts, such as storm sewers, which are generally agreed to be legal.
In stormwater systems, “if you are Owner A and you dump pollutants into Sewer System B, you can be required to
get a permit for what comes out of Sewer System B. Why is it not the same here?” Judge Randolph L. Hill asked Robert
Cox, who represented the petitioners.
And Judge Leslye M. Fraser asked how they could hold that towns are not subject to permit limits when they transfer
sewage to a separately owned POTW without allowing municipalities that currently own both their sewer system and a
treatment plant, and are subject to joint National Pollutant Discharge Elimination System (NPDES) permits for their
systems, the ability to eliminate their sewer permits by transferring ownership of the POTW.
If a city government opted to sell only the section of its sewer that discharges pollutants, then “by selling the last five
miles of pipe . . . the town now has, in your theory, gotten out of its obligations to have a NPDES permit?” Fraser asked.
In the case, four Massachusetts towns and a local pollution control district are seeking to block a NPDES permit
crafted by EPA Region 1 for the Charles River POTW that also requires the towns to upgrade their sewer infrastructure to
prevent permit exceedences in wet weather. EPA has argued that the satellite collection systems are subject to permit
limits because they are part of the POTW rather than separate entities, and because their transfers of wastewater to the
treatment plant are “discharges” under the CWA. Relevant documents are available on InsideEPA.com. See page 2 for
details.
Judge Kathie A. Stein said that if the towns’ sewer systems are causing excessive discharges in wet weather, EPA may
have had no choice but to include them in the POTW permit in order to ensure compliance with state water quality
standards, with the only other option being to bar any discharges at all until the situation is resolved.
“Doesn’t the region have the authority to say that without the towns as parties they can’t assure compliance [with
water quality standards], so they won’t issue the permit?” she said.
But even though the judges seemed to back EPA’s legal justification for permitting the satellite systems, they also
seemed likely to reject the specific permit under review because EPA never received a formal permit application from the
four towns — instead, it responded to an application from the Charles River district by crafting a permit that included the
towns as co-permittees.
“The effect of what you’ve done is to give a permit to an entity that did not ask for it and very much does not want
it,” Hill said to EPA attorney Samir Bukhari.
The water law and agency regulations generally describe the CWA permitting process as beginning when a discharger, or an entity that proposes to discharge, applies for permit coverage. While the language can be read in other
ways, Hill said, “the most natural reading” is that a discharger must submit an application before it can receive a permit.
Stein raised the analogy of a police officer who stops a driver who is not carrying a license. “The typical remedy
would be to issue me a fine for driving without a license. It wouldn’t be to give me the license,” she said.
Speaking to Inside EPA after arguments, Cox said that if EAB does find that the agency committed procedural
violations in issuing the permit — which would likely lead the board to issue a remand — the towns would likely wait for
EPA to respond fully to that remand before returning to the underlying question of its legal authority over satellite
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
7
Permits
systems, either in a new EAB proceeding or in an appeal to the U.S. Court of Appeals for the 1st Circuit.
In addition to arguing that the towns do not meet the CWA definition of a “discharger” subject to permits, the utilities
say EPA can only craft permits for satellite systems if it first crafts a new rule to that effect.
In their briefs, the petitioners said EPA’s claims that it can issue permits like the one for Charles River amount to a
new legislative rule that should have undergone notice and comment, and pointed to the agency’s aborted 2010 effort to
craft rules for municipal satellite collection systems, which regulators held listening sessions on but shelved due to budget
constraints, as evidence that the agency lacks authority to do so without a rulemaking.
“Until such time as EPA addresses this issue on a national level and gives the public the opportunity [to] review and
comment on the legal Analysis set forth by the Region, co-permittee provisions should not be set forth in the Permit. For
these reasons, the co-permittee provisions must be stricken from the Permit,” the towns say in their petition.
But the judges seemed to doubt that the issue was material to their consideration of the permit.
“Let’s assume that we do agree with you that the permitting approach is a legislative rule — how does that help
you?” Hill asked. — David LaRoss
NMFS Reverses CWA Permits’ ‘Jeopardy’ Finding, Corps Plans New Rules
The National Marine Fisheries Service (NMFS) has reversed its 2012 finding that a streamlined Clean Water Act
(CWA) permitting program — long criticized by environmentalists for inadequate oversight of permits — could create
“jeopardy” under the Endangered Species Act (ESA), but is highlighting planned new rules by the Army Corps of
Engineers to ensure species protection.
In a newly issued biological opinion (BiOp) on the Corps’ streamlined nationwide permit (NWP) program, NMFS
says the measures that the Corps has agreed to in order to better protect species include launching a rulemaking to amend
notification requirements for several NWPs; holding semi-annual meetings among the agencies’ regional staff to weigh
new conditions; and taking steps to improve tracking of activities authorized under the streamlined permits. Relevant
documents are available on InsideEPA.com. See page 2 for details.
Those measures build on the Corps’ agreement earlier this year to develop guidance for regulated entities to better
facilitate compliance with ESA requirements, provide NMFS with semi-annual reports on permitting, including locations
of authorized activities and data on impacts broader compensatory mitigation application, issue guidance for regions on
cumulative effects analysis under the CWA, ESA and the National Environmental Policy Act (NEPA).
The Corps has also agreed to issue guidance to its districts specifying that regulated entities must report incidents of
injury or death of any fish, marine mammals, abalone, coral or marine plants listed under ESA.
The final BiOp, issued Nov. 24, likely resolves most of the lingering uncertainty regarding the NWP program
resulting from the previous Feb. 15, 2012, BiOp. That earlier finding created legal vulnerabilities under ESA for industrial and development activities covered by the affected NWPs.
Despite NMFS’ reversal of the jeopardy finding, however, it remains unclear how those industrial activities will be
affected by the rulemaking described in the new BiOp.
According to the document, the Corps plans to conduct rulemaking to modify NWP12, which covers utility lines and
has been used to authorize construction of some oil and gas infrastructure, including the southern leg of what would have
been the Keystone pipeline, NWP13, for bank stabilization projects, NWP14, for linear transportation projects and
NWP36 which authorizes boat ramp projects.
The Corps in 2012 re-issued or released new or modified versions of 48 NWPs that authorize various dredge-and-fill
activities in streams, wetlands and other jurisdictional waters under section 404 of the CWA and section 10 of the Rivers
and Harbors Act for a host of projects including agriculture, navigation, development and transportation, along with two
new permits for land- and water-based renewable energy proposals. The NWPs took effect March 19, 2012, and are
slated to expire in March of 2017.
The NWPs govern actions that have limited environmental impacts — confined to half an acre — and are intended to
speed permitting for those projects.
Regulated entities generally seek coverage under the permits — which requires them to comply with the permit’s
terms but also shields them from CWA enforcement actions alleging unlawful discharges.
Activities that the Corps determines would have significant environmental impacts must be authorized under individual 404 permits, a process which involves a more rigorous, site-specific review of potential adverse effects, gives EPA
a stronger oversight role and often becomes the target of environmentalist litigation.
The water law requires the Corps to reissue its NWPs every five years as a way of streamlining the permitting
process for dredge and fill operations conducted in “waters of the U.S.” that are associated with minor impacts to the
aquatic environment.
But shortly after the Corps issued the modified permits, NMFS issued a biological opinion (BiOp) that found that the
8
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
Permits
revised permits do not adequately protect 55 threatened or endangered species, as well as thousands of acres of wetlands
and other habitat. NMFS also detailed a series of reasonable and prudent alternatives (RPA) to limit harms.
Weeks later, the Corps asked NMFS to re-initiate consultations over the NWP program and consider revising both its
jeopardy determination and the RPAs, raising “serious concerns” on whether it could implement the RPAs and pointing
out that it had already taken steps to address concerns in the BiOp. The agencies re-initiated consultation in 2013,
concluding in March of this year but continuing discussions on a draft version of the BiOp.
The new BiOp says, “The Corps has made many modifications to its action during consultation with NMFS, in
addition to the improvements that it has already made to the Nationwide Permit Program.”
It adds, “These measures will place the Corps in a position to prevent adverse effects to endangered or threatened
species under NMFS’ jurisdiction or critical habitat that has been designated for such species.”
The new rules will require pre-construction notifications (PCNs) for those activities in jurisdictional waters where
impervious surface materials will be used and where the waters are inhabited by listed species or is designated critical
habitat under the species law.
The amount of impervious surface cover in a watershed is significant because it can cause ecosystem alternations that
increase risk of flooding by hindering a wetland’s ability to capture and store runoff, even in areas originally not considered vulnerable to flooding, NMFS says.
Additionally, the Corps will include in its semi-annual reports the amount of actual impervious surface cover resulting from authorization of activities under eight of the NWPs and other Department of Army permits for watershed
inhabited by listed species, and is required to consider that information in deciding whether to initiate ESA section 7
consultation for individual PCNs.
The PCN issue could be significant for the oil and gas industry because the Corps in its February 2012 re-issuance of
48 pre-existing NWPs, and two new NWPs including language for the first time specifying that NWP12 could be used to
authorize gas utility lines and associated infrastructure.
Inside EPA previously reported that Corps staff expressed concern about the adverse NMFS BiOp, fearing that it may
result in limitations on NWP12 that could stymie energy infrastructure.
For example, Craig Johnson, ESA Section 7 coordinator within NMFS’ Office of Protected Resources, wrote in an
April 9 email to NMFS’ staff that Corps staff “expressed concern about the effects of the opinion on Nationwide Permit
12 (linear transportation corridors), particularly in light of several major pipeline projects that are being planned in
geographic area that overlaps with our Southeast Region (for example, the Keystone Pipeline).”
While the general permit is intended for utility line projects that have limited environmental impacts, confined
to half an acre, for the purpose of speeding permitting, the Corps has authorized much larger projects, such as the
southern leg of the Keystone XL pipeline, arguing that the permit is only being used to authorize individual water
crossings.
A federal court in Oklahoma late last year upheld the Corps’ defense of the use of NWP12 for the Keystone project
but environmentalists are currently appealing it to the U.S. Court of Appeals for the 10th Circuit.
But environmentalists’ efforts could get a boost from the language in the BiOp which says, “in areas of the country
where substantive concerns about cumulative impacts due to regulated activities are identified, the Corps notes that it has
taken a variety of actions, including conducting special area management plans to tailor the CWA section 404 permit
program to more effectively address those cumulative impacts.” — Bridget DiCosmo
EAB Dismisses Challenge To Second SDWA Permit Issued For CCS Project
EPA’s Environmental Appeals Board (EAB) has dismissed a landowner’s challenge to the agency’s second ever
approval of a carbon capture and sequestration (CCS) project under its new CCS permitting rule, after EPA and the CCS
developer successfully argued that the suit was filed outside of the 30-day window for an EAB challenge.
EAB in a Nov. 26 order accepted and issued a voluntary dismissal filed Nov. 19 by Illinois resident Jeffrey Sprague
in an October challenge to EPA’s review of Archer Daniels Midland’s (ADM) Decatur, IL, project in accordance with an
underground injection control (UIC) permit the agency’s Region 5 issued for the CCS operation. EPA approved the
project under its novel Safe Drinking Water Act (SDWA) “Class VI” permit rules for CCS. Relevant documents are
available on InsideEPA.com. See page 2 for details.
Sprague had argued in the Oct. 28 petition that EPA’s review of the second project to ever be approved under the
SDWA program failed to “address any potential acute or chronic adverse effects to any of the threatened and endangered
species or their respective critical habitats.” Sprague cited possible adverse species impacts from surface disturbances
during site preparation and well construction, and increased emissions from diesel generators, offroad equipment and
truck traffic for the CCS facility.
But EPA and later ADM in separate motions to dismiss argued that the board should dismiss the challenge as un-
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
9
Permits
timely by one day, charging that federal regulations require any EAB challenges to be filed within 30 days of EPA notice
of a final permit issuance. When notice of a final permit is given by mail, however, that deadline may be extended by
three days.
EPA said in its Nov. 12 motion to dismiss, and motion for extension of time that the notice of the final permit and a
summary response to comments filed on the draft permit was mailed to all commenters, including Sprague, via certified
mail Sept. 24, making the 33-day deadline Oct. 27.
Because the petition was not received by EAB until Oct. 28, EPA and the company argued that the challenge is
untimely and should be dismissed, saying it fails to satisfy federal requirements.
“In general, the Board strictly construes threshold proceeding requirements absent special circumstances to justify
the lack of timeliness,” EPA said in the motion, adding that EAB has found that mailing delays outside of a party’s control
would constitute such a circumstance.
But EPA contended that those circumstances did not exist here, citing a 2004 EAB challenge to a SDWA permit, In
re Pyramid Chemical Co., where the board held “neglect of a party or a party’s attorney does not excuse an untimely
filing, nor does lack of willfulness, by itself, affect the determination.”
Pursuant to EPA’s motion, the board filed a Nov. 18 order requiring the plaintiff to show cause by Dec. 4 as to why
the petition should not be dismissed, also granting EPA’s motion for an extension of time to file a response to the petition
and respond to an EAB offer to participate in alternative dispute resolution.
EPA established the Class VI UIC category of permits in 2010 to address the unique characteristics of CCS
projects and to ensure the nascent technology does not harm drinking water supplies. The new category includes morestringent monitoring, siting and well integrity requirements for carbon
dioxide (CO2) — which is injected in gas and liquid form and can acidify
water, making it corrosive — compared to other UIC well classes, most of
EPA said the CCS suit
which house only liquids.
was untimely and should
EPA and others have said they expect increasing use of CCS in
be dismissed, saying it
future years as utilities look to use of the practice as a means for storing CO2
fails to satisfy federal
and meeting the agency’s climate rule for new power plants.
requirements.
But energy industry groups say that EPA’s CCS rules, including its
SDWA UIC permit requirements, have created hurdles for operators to
accept CO2 streams from coal-fired power plants, making it less advantageous than using CO2 from other sources and hindering compliance with the agency’s proposed power plant rules.
ADM’s permit marks the second time the agency has crafted Class VI permits for a CCS project. In early September,
Region 5 issued four such permits to FutureGen Industrial Alliance for an upgraded power plant in Illinois that will use
CCS.
But those permits are also facing an EAB challenge, filed by landowners Oct. 9 over claims that the water monitoring
and financial assurance requirements in the permits are inadequate to protect drinking water.
Lawyers for FutureGen argued last month in a brief in In re: FutureGen Industrial Alliance that the challenge lacks a
legal basis, saying the plaintiffs cannot meet a standard for EAB review of showing EPA’s decision was “clearly
erroneous.”
The case consolidates several challenges arguing that the final permits do not ensure that the areas potentially
impacted by the CO2 injection are delineated and do not properly address existing industrial and other wells — which
can provide a conduit for contamination.
The petitioners are asking that the permits be remanded to the agency to craft new modeling that better shows the
entire injection plume, so that the record contains a reasonable prediction of the extent of the dissolved-phase CO2 plume
during the lifetime of the project, provide its rationale for its siting of monitoring wells — including potential leakage
pathways, provide detailed data on existing wells, increase the stringency of the financial assurance conditions and
provide greater details on the financial assurance requirements and other measures.
In a Dec. 4 reply brief, petitioners argue that industry has failed to address the argument that due to the precedential
nature of the permits, EAB should exercise discretion to review the challenge, saying the case “presents important policy
issues” — a second discretionary standard under which the EAB may agree to hear a case.
“Rather than accept Respondents position that the Permits meet a “minimum” standard that is good enough for now,
the EAB should review and remand these important policy issues and assert its discretion in light of a first of its kind
project,” the brief says.
But the petitioners also argue that EPA’s delineation of the injection zone is based on a model that was in “clear
error,” and therefore the board should agree to review the permits under both the discretionary and “clearly erroneous”
standards of review. — Bridget DiCosmo
10
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
Permits
Congress Renews Small Vessel Exemption From CWA Permit Requirements
The Senate and House have renewed a temporary exemption from Clean Water Act (CWA) permitting requirements
for small vessels, although in the Senate, Democrats had sought a permanent exemption for small vessels that Republicans opposed because the measure did not also include large commercial vessels.
The short-term exemption renewal was included in a compromise amendment to S. 2444, a bill authorizing the U.S.
Coast Guard for fiscal years 2015 and 2016. Both chambers of Congress approved the legislation Dec. 10.
Sen. Barbara Boxer (D-CA) authored legislation to permanently exempt small vessels, S. 2963, and sought to include
the bill language in the Coast Guard legislation. But due to the objections of Sen. David Vitter (R-LA), Boxer agreed to
the compromise of a three-year exemption.
“I am going to agree to this 3-year moratorium but I am a little stunned as to why we are doing this again,” Boxer
said during floor debate of the Coast Guard bill. “We could give these small boats a permanent exemption. It is an
important economic issue.
“I don’t like this approach, but it is the best we can do. I want the American people and the fishermen to know we
tried so hard to get this fixed permanently. But I am glad we have a 3-year moratorium. It is better than nothing,” Boxer
said.
Congress first exempted small fishing vessels or other commercial vessels less than 79 feet in length from needing
National Pollutant Discharge Elimination System (NPDES) permits in 2008, setting a two-year moratorium that lawmakers have repeatedly extended but which was set to expire Dec. 18. The initial exemption for small vessels came just one
day before the U.S. Court of Appeals for the 9th Circuit upheld a district court ruling requiring EPA to permit vessel
discharges — and had strong Republican backing.
The Senate Environment & Public Works Committee, which Boxer chairs, approved a permanent exemption for
small vessels Dec. 2 in a 10-8 party-line vote.
An environmentalist source explains the Republican opposition to Boxer’s bill as an attempt “to hold the small ship
exemption hostage” in order to press for a NPDES exemption for large commercial ships.
A spokesperson for Sen. Vitter has said that a permanent exemption for small vessels was a “small fix” that would not
deal with the whole problem.
“There are other bills out there that fix the entire problem,” the spokesperson said. But those measures, including a
bill sponsored by Sen. Mark Begich (D-AK), and its House companion, H.R. 5609, which would require EPA to unify its
standards for vessel discharges with the U.S. Coast Guard’s standards to limit shippers burdens, have not gained traction
in this Congress.
Boxer alluded to the push for an exemption for large vessels during her floor speech, vowing to continue to fight
against such an effort.
“[W]hatever objections there were [to S. 2963], I don’t think they are really objections to the permanency, they are
political objections to try and use this to get some other bad stuff attached to it, and I am not going to let that happen, let
me tell you right now, no way, no how,” Boxer said. “So whatever someone has in their mind that they are going to
connect to this little baby, it isn’t going to happen, because we can’t do that. We can’t take one good thing and destroy it. I
am not going to let that happen.” — Amanda Palleschi
Clean Water Act Jurisdiction
Stakeholders Back EPA FY15 Bill’s Rider Scrapping CWA ‘Interpretive’ Rule
Agriculture industry officials and some environmentalists are generally backing an omnibus fiscal year 2015 funding
bill rider that would force the administration to scrap an “interpretive” rule clarifying agricultural practices that are
exempt from Clean Water Act (CWA) permits, given broad criticism of the rule for its alleged legal flaws.
The rule, which took effect March 25, is part of EPA and the Army Corps of Engineers’ broader rulemaking to define
the scope of CWA jurisdiction. It exempts 56 agricultural conservation activities, such as brush management and fencing
in crops, from CWA section 404 permit requirements by specifying they are “normal farming” measures exempt from
dredge-and-fill permits, but critics have said it creates legal confusion and should be withdrawn.
Lawmakers inserted language into the FY15 funding bill — slated at press time for Senate debate after the House
approved it narrowly in a Dec. 11 vote — that would force the agencies to withdraw the regulation.
But while the omnibus FY15 appropriations legislation, unveiled late Dec. 9, would force immediate withdrawal of
the interpretive rule and contains language that would block the Corps from requiring CWA dredge-and-fill permits for
any of the “normal farming, silviculture, and ranching activities” as described as statutorily exempt in section 404(f)(1) of
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
11
Clean Water Act Jurisdiction
the water law, it does not include any riders targeting the jurisdiction rulemaking.
One industry spokesman says the bill language withdrawing the interpretive rule is a “solid step” but that they were
hoping for a “full defunding” that would also include the broader CWA jurisdiction rule.
A second industry source says that while they hoped to see the administration withdraw the interpretive rule formally,
“if it’s accomplished through the funding bill, I’m happy to see it happen.”
Given that the interpretive rule had drawn sharp criticism from a sweeping range of stakeholders that included
environmentalists, Senate Democrats as well as GOP lawmakers, major industry groups, states, federal wildlife agencies
and conservation districts, many sources say they are supportive of the funding bill rider.
“We advocated for its withdrawal,” one environmentalist says, adding that while they strongly support the broader
jurisdiction rule, they see the interpretive rule as “completely separate and, we don’t think, at all necessary.”
Environmentalists have criticized the interpretive rule because, they say, it would exempt agricultural practices from
permits beyond what the CWA intended, such as stream habitat improvement and land reclamation projects.
A second environmentalist says withdrawal of the rule would be a “positive step, adding that the “reason the interpretive rule is problematic is because it includes certain activities for which the corps is requiring a permit now,” such as
clearing channels, which should not be exempted from 404 permitting.
Withdrawing the rule would mean the existing “normal” farming exemptions from CWA permits would still be in
place, which would likely have limited impacts, that source says.
A third environmentalist says that the interpretive rule “became so controversial, it’s almost a distraction” for
advancing the CWA jurisdiction rulemaking, and its withdrawal would be “no great heartburn.”
But the source adds that “I hope it’s not a harbinger of next year for the jurisdiction rule,” meaning a potential
legislative push to force the agencies to scrap the broader CWA rule.
Ahead of the funding bill’s release observers had suggested that lawmakers might try to insert a provision that would
block EPA from finalizing the broader rule to define the water law’s scope.
The decision to avoid such a prohibition could potentially weaken Republicans’ leverage to block the jurisdiction
regulation through future appropriations measures, as it is slated to be finalized in April next year, months before Congress works on a FY16 bill that could be a vehicle for such a prohibition.
The omnibus bill language says that EPA and the Army Corps “shall withdraw the interpretive rule” signed
March 25. The agencies have faced repeated calls to withdraw both the interpretive rule and the CWA jurisdiction
proposal since releasing both on April 21, with the interpretive rule backdated to take effect in March. 25
EPA and the Corps took comment on the CWA jurisdiction proposal through Nov. 14. The proposed rule aims to
clarify the scope of the CWA following competing Supreme Court tests stemming from the 2006 ruling, Rapanos v.
United States, for determining whether smaller waters and isolated wetlands are jurisdictional.
Under section 404 of the CWA, the Corps issues permits for so-called dredge-and-fill activities that occur in jurisdictional waterbodies, though EPA has some oversight, and the permits often become the target of CWA citizen suits. The
interpretive rule seeks to clarify which farming and agricultural conservation practices are exempt under section
404(f)(1)(A) of the CWA, which provides a statutory exemption for dredge-and-fill permits for discharges that are
associated with “normal” farming, ranching and silviculture activities.
The rule drew concerns that it is legally flawed, and industry argued that it appeared to restrict the statutory exemptions to only those 56 practices and placed agriculture officials into a CWA enforcement role, while environmentalists
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WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
Clean Water Act Jurisdiction
said the list included practices never intended to be exempted under the water law.
“It took long standard agricultural practices and made it appear as though only those would be exempt,” the first
industry source says.
One wetlands regulator source points out that the wide range of often conflicting criticism of the rule points to how
confusing the language is, saying, “if people read a rule and folks see really different things,” that should be an indication
more clarity is needed. That source says that greater clarification on what constitutes “normal” agricultural practices may
be needed, “but the interpretive rule didn’t achieve that intent.”
Even if EPA were to pursue a notice-and-comment rulem, as many suggested they should have done, the issue is a
“moving target” because farming practices vary so greatly from region to region, often depending on landscape, that
source says. “It’s not an easy topic to write guidance to cover every possible” scenario. — Bridget DiCosmo
Litigation
Judges Conflicted On Setting Precedent In Suit Over CWA Petition To EPA
Appellate judges at oral arguments appeared conflicted on setting a broad precedent in advocates’ suit aiming to
force a substantive response from EPA to their petition seeking Clean Water Act (CWA) standards for the Mississippi
River Basin, fearing a ruling could either give EPA too much or too little leeway on addressing petitions.
EPA in the suit, Gulf Restoration Network (GRN), et al. v. EPA, is asking the U.S. Court of Appeals for the 5th
Circuit to overturn a district court’s order for EPA to craft a substantive response to environmentalists’ CWA petition for a
determination that Mississippi River Basin states are not adequately regulating nutrients, arguing that courts have no
jurisdiction to review an agency’s decision to reject such petitions out of hand.
But the three-judge panel that heard the case seemed concerned that their ruling could either hamstring the agency or
give it too much leeway to ignore petitions for action, based on how expansively they read the Supreme Court’s landmark
2007 ruling in Massachusetts v. EPA that required the agency to respond substantively to Massachusetts’ petition asking
EPA to develop first-time greenhouse gas rules.
During Dec. 4 oral arguments, Circuit Judge Stephen A. Higginson said, “It’s a narrow statutory issue but it’s a huge,
very pertinent issue. We have a national crisis, whether it’s water quality or immigration. There is no federal action. Can
courts step in, or can the government just say you can’t review enforcement decisions?”
And Senior Judge Patrick Errol Higginbotham asked “what discretion, if any, remains with EPA” under the district
judge’s order that required a substantive response to the nutrients petition.
If EPA makes the CWA finding that environmentalists seek, it would likely force the agency to impose federal
requirements on states because section 303 of the water law says that “If the Administrator makes such a determination”
the agency must issue federal requirements unless states quickly tighten their water quality rules.
The case seems likely to turn on the panel’s interpretation of Massachusetts, where the high court in a 5-4 decision
found that the court had jurisdiction to decide whether EPA was within its discretion to refuse to respond to the states’
petition seeking greenhouse gas rules on its merits.
The agency in Massachusetts had argued that the decision on whether or not to respond was entirely within its
discretion and not reviewable by a court as long as it “has adequately explained the facts and policy concerns it relied
on,” but the Supreme Court held that a finding of jurisdiction “requires careful examination of the statute on which the
claim of agency illegality is based.”
GRN and its allies have argued that their petition is directly analogous to the petition at issue in Massachusetts, and
that a ruling for the agency would give it “freedom from judicial oversight in implementing” the CWA. But the agency
has argued that GRN’s petition should be considered a petition for enforcement action. It says its response should be
entirely within regulators’ discretion, with courts lacking jurisdiction to review GRN’s suit at all.
But at oral argument, the judges seemed concerned with the practical implications of their possible rulings,
rather than the legal arguments for either side.
They repeatedly questioned Department of Justice attorney Matthew Littleton, who represented EPA, and the Natural
Resources Defense Council’s Ann Alexander, who represented the environmentalists, on how the agency would respond
both to future CWA petitions and to nutrient concerns in the Mississippi River Basin based on the result of GRN.
“When you look at the record, it does look like EPA keeps telling the states, ‘we are about to make this necessity
[determination], we are.’ But then three years, five years pass. Not much cooperative federalism occurring, instead it’s
kind of antagonistic,” Higginson said.
Later, he asked whether environmentalists would have any way to force action from EPA if the 5th Circuit were to agree
WATER POLICY REPORT - www.InsideEPA.com - December 15, 2014
13
Litigation
that courts cannot review the agency’s decision not to respond to a CWA determination petition, suggesting that environmentalists could have a legitimate concern that regulators might decline to act on nutrient contamination in the region altogether.
“What if the only answer becomes, ‘this is really hard and we’re cooperating,’ and five years later it’s still really hard
and we’re cooperating?” he said.
Circuit Judge Edith Brown Clement focused on how EPA would prefer the case to move forward if the panel finds
that it has jurisdiction over GRN’s claims — with the option to either remand the suit back to the district court for new
proceedings, or to rule immediately on whether EPA must respond to the petition. Littleton answered that the agency
would prefer a new district-level hearing to establish a more complete record.
“It’s your case. If you want it remanded rather than rendered, that’s fine — careful what you ask for,” Clement said in
response. — David LaRoss
Advocates Fight EPA, Industry Opposition To Cooling Water Suit Transfer
Environmentalists are fighting opposition from EPA and power industry groups to their request to transfer litigation
over the agency’s Clean Water Act cooling water intake rule from the U.S. Court of Appeals for the 4th Circuit to the 2nd
Circuit, saying prior 2nd Circuit rulings on the policy require the case to be heard by that court.
In a reply brief filed Nov. 24, Riverkeeper and other environmentalist groups renew their argument that because the
2nd Circuit remanded an earlier cooling water rule to EPA, and ruled on a separate challenge to another version of the
rule, it should decide whether EPA’s revised rule issued this year is lawful.
Industry groups and the agency have argued that EPA’s newest version of the rule is so different from the earlier
versions that it can be considered separately from the 2nd Circuit cases, and that it should remain in the 4th Circuit which
is currently slated to hear the suit (Water Policy Report, Dec. 1).
But the advocates respond, “EPA’s opposition to transfer is largely based on the absence in the 2014 Rule of certain
provisions remanded by the Second Circuit . . . The pertinent question, however, is not whether the new rule mirrors the
remanded rule, or whether new materials have been added to the record since the remands, but rather whether continuance of review by the same appellate tribunal is necessary or desirable to ‘maintain continuity in the total proceeding.’”
The brief is available on InsideEPA.com. See page 2 for details.
Riverkeeper and its allies are claiming that the 4th Circuit case, Cooling Water Intake Structure Coalition (CWISC), et al. v.
EPA is effectively a continuation of a 2004 suit where the 2nd Circuit remanded an earlier cooling water regulation to EPA.
EPA’s rule, issued May 17 under section 316(b) of the CWA, generally seeks to limit harms from cooling water
intake systems at existing power plants and other facilities by setting technology standards. Environmentalists have
attacked it as too lax while industry has largely backed its substantive measures but said in comments that it includes
contradictory testing and application provisions that could prevent new facilities from seeking permit coverage.
The agency finalized the rule after three prior challenges to earlier versions. The 5th Circuit heard arguments in 2009
on the so-called phase III rule, which covered offshore oil and gas exploration facilities and existing factories, while the
2nd Circuit has considered two cases — respectively known as Riverkeeper I and Riverkeeper II — over the phase I rule,
covering new power plants, and the phase II rule, which governs existing plants. The court delivered a ruling for environmentalists on the latter case, remanding the phase II rule to EPA.
The Supreme Court, in the 2009 decision Entergy v. Riverkeeper, overturned a key holding of the Riverkeeper II
ruling, where the appellate court had barred the agency from using a cost-benefit analysis to set standards for intake
structures — though it left the remainder of the 2nd Circuit’s remand untouched.
Environmentalists in a Nov. 3 motion said the case should be transferred to the 2nd Circuit because EPA began work
on the rule following the 2nd Circuit’s remand of its phase II regulation in 2007, and the new regulation should be judged
under the same standards as the original.
But EPA and industry countered that the agency’s new rulemaking is much broader than the phase I and phase II rules
considered by the 2nd Circuit in 2004 and 2007 cases.
Instead, they say the new regulation represents a holistic approach to the sector that incorporates elements from
litigation over all three phases, including a Supreme Court ruling, as well as a host of new policy initiatives, and thus is
not directly tied to the 2nd Circuit.
But Riverkeeper in its new brief says the agency’s modifications following the 2007 remand are another reason for
the 2nd Circuit to take over review.
“The Second Circuit’s interest in the total proceeding is not lessened — indeed, it is greatly enhanced — by the fact
that EPA responded to that court’s remands by circumventing the fundamental principles animating both Second Circuit
cases, i.e., that the CWA directs EPA to establish national Section 316(b) standards and allow deviations from those
standards only in certain circumstances. Moreover, the law is clear that an agency action taken ‘in part’ on remand is
sufficient grounds to transfer venue,” the brief says. — David LaRoss
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Stormwater
Industry Eyes Permit Changes After EPA Withdraws Stormwater ‘Flow’ Guide
Regulated entities are watching state and federal regulators’ actions on recent stormwater permits in the wake of a
new EPA memo withdrawing its controversial 2010 guidance on using runoff “flow” as a surrogate for pollutants in
discharge limits, saying the revised guide could open the door to a wider variety of permit conditions if authorities choose
to pursue them.
Sources point to ongoing discussions between local officials and Tennessee regulators, a pending permit in California
and other state actions, as well as EPA’s decisions on whether to veto newly issued or amended permits as signals to how
stormwater policy will proceed following the agency’s Nov. 26 memo.
EPA’s new guidance removes the 2010 “flow” language and focuses instead on numeric pollution standards for
receiving waters, rather than effluent limits that would apply directly to stormwater discharges — both of which are in
line with requests from critics of the first version of the guidance and mark the end of a national push to regulate flow,
although states may seek to do so, a wastewater industry source says. The memo is available on InsideEPA.com. See page
2 for details.
A construction industry source says EPA’s move away from controls on stormwater flow could lead permit-writers to
remove terms based on that language from permits that were crafted based on the earlier guidance, either by amending
current terms or by replacing expiring permits with new documents that lack flow controls or similar concepts.
For instance, the source says, a general stormwater permit for Chattanooga, TN, that included strict requirements for
stormwater retention based on the 2010 memo — which industry argued were so expensive as to make new construction
impractical — is now in doubt, with members of the local government seeking new action from the state Department of
Environment & Conservation.
“I’d hope it will lead to new permit terms. But we have to see what happens next,” the construction source says.
But the source cautions that even amended permits could be costly for industry if companies had begun to comply
with conditions required by the 2010 guidance and now need to do something new or discover the actions are unnecessary.
The Nov. 26 memo “starts undoing this sort of regulation, so we think it’s wonderful, but it also makes you wonder . .
. when you find yourself spending a huge amount of money per acre to comply, and then you find out that you didn’t need
to do it — that’s not very good either, is it?” the construction source says.
The wastewater industry source says California is set to provide another test of how the guidance will work in
practice when it takes action on a pending municipal separate storm sewer system (MS4) permit for Los Angeles County,
which has been subject to a lengthy round of challenges from both industry and environmentalists.
The state’s Water Resources Control Board recently issued a preliminary order on the permit that referenced EPA’s
2010 stormwater memo, and how the board adapts that order to the final memo will set a precedent for how California,
and other states that follow the state’s lead on environmental issues, will reconcile existing permit terms with the new
guidance, the source says.
“Obviously they won’t be able to draw on the 2010 guidance anymore, but I think they could probably still make it
fit” under the Nov. 26 revisions, the source continues.
The 2010 memo sought to revise a previous agency guidance issued in 2002 on four key points to better reflect
experience gained by EPA and the states in developing pollution control plans, known as total maximum daily loads
(TMDLs), and the specific pollution budget for point source dischargers contained in the TMDL, which are known as
wasteload allocations (WLAs).
The memo included four key revisions to the 2002 policies: providing numeric water-quality based effluent limits
(WQBELs) for stormwater discharge permits; disaggregating stormwater sources in a WLA; using surrogates for pollutant parameters, such as flow or impervious cover, when establishing TMDL loading capacity targets; and designating
additional stormwater sources to regulate under the National Pollutant Discharge Elimination System program.
However, the provisions represented a dramatic shift away from the 2002 memo, which allowed that the majority of
WQBELs would be incorporated into permits in the form of best management practices (BMPs). And industry, as well as
other critics, argued that allowing flow controls in permits would preempt local land use controls and overstepped EPA’s
authority under the Clean Water Act.
The Nov. 26 revisions entirely cut the “surrogate” language, and say regulators should instead craft numeric measures for quantifying the success of BMPs and technological upgrades. The wastewater source says the document
represents a decisive move away from federal controls on stormwater flow, but that it leaves open what policies will
replace that initiative.
“I think the fact that they so clearly removed ‘flow’ from the memo is indicative that they’re not going to try to move
it forward in a national document. I don’t think we’ve seen the last of the concept, but I think that if we see it in the future
it will be something that’s being pushed at the state rather than the federal level,” the wastewater industry source says.
The memo allows for metrics for success that include both implementation of a BMP, such as reductions in impervi-
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Stormwater
ous surface area, and overall pollution reductions, such as specific targets for nutrients or sediments in receiving waters.
“Permits should contain clear, specific, and measurable elements associated with BMP implementation (e.g., schedule for BMP installation, frequency of a practice, or level of BMP performance), as appropriate, and should be supported
by documentation that implementation of selected BMPs will result in achievement of water quality standards,” the Nov.
26 memo says.
It gives examples of existing permits that use that approach, including the landmark MS4 permit for Washington, DC,
which imposed a stormwater retention standard throughout the district and has been seen as a major shift toward an
agency policy of encouraging or requiring “green infrastructure,” such as permeable pavement and rain gardens, for
stormwater management.
Industry and environmentalist sources say EPA is expected to move forward with similar permits in other jurisdictions as part of a “permit-by-permit” approach to retention standards after the agency abandoned its planned postconstruction rule for stormwater runoff — expected to set retention standards for all new construction and redevelopment
— in favor of providing guidance and technical assistance to local governments.
“Now we’re seeing what it means to EPA to do this through support and guidance. The question is how it’s
going to be used in practice. Obviously we won’t know that until we let this play out a little bit,” the wastewater
source says. — David LaRoss
Toxics
EPA’s Plan To Study Dioxins In Refineries’ Effluent Draws Industry Challenge
EPA’s pending Clean Water Act (CWA) study of releases of dioxin and dioxin-like compounds from petroleum
refineries’ wastewater discharges is drawing data quality and other legal challenges from the refining industry, charging
that the agency is inappropriately relying on Toxic Release Inventory (TRI) data and overstepping its CWA authority.
“EPA should discontinue its misuse of TRI data in effluent guidelines and other water regulatory program planning,”
the American Petroleum Institute (API) says in Nov. 17 comments submitted on EPA’s final 2012 and preliminary 2014
plans for developing wastewater rules under the CWA. “Decisions concerning water regulatory programs should be based
on precise, accurate facility-specific effluent monitoring data, not on estimates or data of unspecified quality.” The
comments are available on InsideEPA.com. See page 2 for details.
The agency’s focus on dioxin in the detailed study also may be triggering industry concerns, given longstanding
uncertainty over the compound’s carcinogenicity.
EPA in its 2014 preliminary plan, announced Sept. 17, calls for EPA to initiate a detailed study of the petroleum
refining point source category, including a detailed study of metals “possibly transferred to wastewater through air
pollution control equipment and/or present in refinery feedstocks; and of dioxin and dioxin-like compounds possibly from
either process wastewater or stormwater sources.”
That study follows a more general review of discharges from the sector that EPA undertook as part of its 2012
304(m) plan. While there is currently no formal plan to craft an effluent limitation guideline (ELG) for refineries, the
Sept. 17 notice says, “EPA expects to use the study to determine whether petroleum refining warrants new or revised” ELGs.
A detailed study under CWA section 304(m) is a necessary step toward developing a new sector-specific ELG. Under
the water law, the agency uses a two-phase process, which begins with a screening phase to identify sectors where
discharges might pose the highest hazards, then designating those for a second review process to determine whether new
or revised standards might be appropriate.
Dioxin is a category of persistent and accumulative compounds inadvertently created through industrial incineration
processes and also through the burning of trash and forest fires. It was a primary ingredient in the herbicide Agent Orange
used during the Vietnam War.
Environmentalists have long urged EPA to strengthen dioxin cleanup requirements and generally praised a 50 parts
per trillion (ppt) limit EPA floated following the agency’s February 2012 IRIS non-cancer risk assessment of 2,3,7,8tetrachlorodibenzo-p-dioxin, the most toxic form of the compound. That limit was significantly more stringent than the
1,000 ppt limit EPA set in 1998.
The IRIS assessment set an oral reference dose — or amount below which EPA expects no adverse health
effects if ingested daily for a lifetime — of 0.7 picograms per kilogram bodyweight per day. The 2012 IRIS assessment of
dioxin’s non-cancer risks was part of a reassessment of dioxin’s health risks that agency staff has been working on for
decades, though IRIS has yet to complete the cancer portion of that assessment.
The pending study of petroleum refineries will focus on releases of metal from the facilities, as well as “dioxin and
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dioxin-like compound discharges,” that the agency in its preliminary 304(m) plan for 2014 says could originate from
stormwater or process wastewater from catalytic reforming and catalyst regeneration operations.
But API charges in its comments that the study may be unlawful, saying that EPA in the plan to examine feedstock
metal composition for the purpose of determining if refinery crude slate affects the concentration of metals in refinery
wastewater oversteps the agency’s authority. “API maintains EPA’s planned investigation of refinery crude oil streams,
with the presumed intention of eventually placing restrictions on refinery crude slates, exceeds EPA’s legal authority
under the effluent guidelines program,” API says.
The group argues that while EPA may under the ELG program establish discharge limits for pollutants based on the
best treatment technology that is economically achievable for a specific industrial point source category, placing regulatory constraints on the facility’s raw materials or process operations would exceed its CWA authority.
The API comments also raise concerns that EPA’s calls for information on “current and future trends in oil refining
processes” is vague and that the agency should “clarify the specific information on oil processes it is seeking, and
particularly, should directly relate the information request to the effluent guidelines review and detailed study needs.”
Similarly, American Fuel & Petroleum Manufacturers in Nov. 20 comments also targets EPA’s use of the TRI data,
saying it is “not a good source of data to gauge current discharges species and/or quantities, particularly for dioxin,”
because EPA guidance instructs reporting facilities to report half the detection limit, and that the TRI numbers do not
represent actual discharges, saying they “therefore cannot be used for regulatory purposes.”
Congress created TRI in section 313 of the 1986 Emergency Planning and Community Right-To-Know Act, enacted
in response to the 1984 accidental release of methyl isocyanate gas in Bhopal, India, that resulted in the deaths of 4,000
people.
The TRI program covers more than 650 chemicals and requires typically larger facilities involved primarily in
manufacturing, metal mining, electric power generation, chemical manufacturing and hazardous waste treatment to report
releases of listed chemicals. The covered toxic chemicals include those with either acute or chronic risk of adverse human
health and environmental effects. — Bridget DiCosmo
Agency Advisors Urge EPA To Strengthen Draft Fish Consumption Guide
EPA’s children’s health advisors are urging the agency to strengthen its draft fish consumption advice for pregnant
women and children by adding several species to a “do not eat” list and offering more specific advice on health risks from
consuming other species, backing advocates’ claims that the draft fails to adequately limit mercury exposures.
In a Dec. 2 draft letter to the agency, EPA’s Children’s Health Protection Advisory Committee (CHPAC) recommends
that EPA add two species of fish to its list of fish to avoid eating. CHPAC also fears that by failing to advise pregnant
women to limit intake of several other fish species, the advice may lead women to consume unsafe levels of mercury. The
draft letter is available on InsideEPA.com. See page 2 for details.
“CHPAC is concerned that consumers will assume that other fish species high in mercury that are not specifically
named in the advisory are safe for pregnant women to eat 2-3 times per week,” according to the draft letter outlining
recommendations the panel finalized during a Dec. 2-3 meeting in Washington, DC.
CHPAC recommends EPA clarify the guide by using a tiered and color-coded approach to fish consumption used by
many states, which would allow federal officials to provide more specific guidance on a broader range of species. Advice
based on the color coding of traffic lights would clarify what species pregnant women and children should avoid, limit or
consume in order to gain beneficial nutrients from consuming fish while limiting exposure to methylmercury.
The advisors’ recommendation backs aspects of criticism from environmentalists who in a critical report issued this
summer argue that EPA’s recent draft fish consumption advice — jointly crafted with the Food and Drug Administration
(FDA) — underestimates risks from mercury exposure and offers inadequate guidance on species that are safe for women
of child-bearing age and children to eat (Water Policy Report, July 14).
EPA and FDA are taking comment on the June 9 draft advice that seeks to balance the benefits for neurological
development of eating nutrients contained in some fish species with avoiding risks to neurological development from
consuming high-mercury fish. In a June 11 Federal Register notice, the agencies say the comment deadline will remain
open until 30 days after additional documents supporting the advice are made available.
Announcing the draft, EPA and FDA said the agencies past fish consumption advice has led pregnant women and
young children in the United States to avoid eating fish, causing them to miss essential nutrients for growth and development.
The agencies’ draft advice includes the novel step of recommending that women of child-bearing age and
children eat a minimum amount of eight ounces of fish weekly, while continuing a traditional maximum intake of 12
ounces of fish per week. The agencies’ current fish advisory, released in 2004, includes only a maximum weekly limit of
12 ounces. The June draft also lists four high-mercury fish to avoid and suggests nine lower-mercury choices.
EPA sought CHPAC’s input on the draft advice, and in its charge questions asked the panel whether federal officials
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Toxics
should include in the draft two additional fish species, orange roughy and marlin, on a do not eat list and whether targeting young children with the draft advice is appropriate given current science. EPA also asked CHPAC how the federal
advice should integrate local fish advisories.
In the draft letter replying to the agency, CHPAC recommends advising pregnant women and children to avoid eating
orange roughy and marlin because of the fish species’ high-mercury content and low omega-3 fatty acids.
But CHPAC also says the agency failed to include grouper and fresh and frozen tuna in a list of species to eat only
once a week even though those fish have higher mercury levels than others for which the advice limits consumption to
just once a week. Given the inconsistency, CHPAC says the advisory may mislead pregnant women into believing those
other species are safe to eat 2-3 times per week.
To clarify the draft advice, CHPAC recommends that EPA adopt the color-coded tiered approach used by many
states, and says that EPA and FDA should harmonize their approaches to developing fish consumption advice so that
state fish consumption advisories, which often follow EPA’s approach, are more consistent.
In the draft letter, CHPAC also recommends that federal officials improve internet navigation from the federal fish
consumption advisory web page to state and local fish advisories to improve consumers’ access to advice on consuming
locally caught fish.
CHPAC’s call for EPA to strengthen the joint federal draft fish consumption advisory to address risks from a broader
array of species echoes aspects of environmentalists’ critical June 25 analysis.
The advocates’ review said the federal draft advice fails to account for recent science showing that adverse health
effects from mercury exposure occur at far lower levels than previously thought, and that the federal lists of fish to avoid
or that are safe to consume are incomplete and misleading.
Environmentalists also raised concerns about the treatment of tuna in the draft federal advice, saying the proposal
incorrectly calls canned light tuna low-mercury.
In CHPAC’s draft letter, the advisors say tuna composes a large proportion of fish in many people’s diet, and so EPA
should provide specific guidance about consumption of various types of fresh, frozen and packaged tuna, including cans
and pouches.
Revising the letter during the Dec. 2-3 meeting, CHPAC members wrestled with how the federal fish consumption advisory should address children’s fish consumption given limited scientific evidence showing adverse
neurodevelopmental effects in children from post-natal exposures to mercury through fish consumption.
After considering whether federal officials should include distinct guidance for children, the advisors backed
targeting children with the advisory, but also urged the agency to support additional research into potential risks from
post-natal exposures to mercury through fish consumption.
The advisors’ review of the evidence found that best-available studies showed no consistent adverse
neurodevelopmental effects in children from fish consumption and a net benefit associated with fish consumption.
“The body of evidence is limited, however, and does not adequately investigate the balance between the risks and
benefits of post-natal fish consumption,” CHPAC says in the draft letter. “More specifically, the literature does not
evaluate whether mercury in commonly consumed fish reduces the health benefits associated with fish consumption in
young children as has been demonstrated in prenatal exposure.”
The letter also notes recent EPA estimates that just over 2 percent of women of child-bearing age in the United States
have blood levels of methylmercury above EPA’s safe level of 5.8 micrograms per liter, indicating that more than 1
million women of child-bearing age have blood levels of mercury sufficient to place a fetus at risk of adverse
neurodevelopmental effects. — Dave Reynolds
Advisors Praise Developing CompTox Approach But Seek More Validation
EPA’s Scientific Advisory Panel (SAP), which peer reviews scientific research for the agency’s toxics office, gave
enthusiastic support to the general approach agency scientists presented for prioritizing chemicals to undergo endocrine
disruptor screening using high-throughput and computational tools, but are seeking further work and validation of aspects
of the approach.
For example, Catherine Propper, a biology professor at Northern Arizona University, said during a Dec. 2-5 SAP
meeting in Arlington, VA, that “In theory I really, really, like it. In practice it still needs further refinement and validation”
especially for the androgen receptor model.
And Edward Perkins, a senior research scientist at the US Army Corps of Engineers environmental laboratory, called
the model “[a] very, very elegant approach. There’s a lot of potential for the incorporation of adding other assays.” But he
said that EPA needs to better explain one of the key outputs, a bioactivity measurement known as area under the curve (AUC).
The December meeting was the latest in a series of SAP meetings over the past two years that have considered
various aspects of EPA’s plans to eventually transition its Endocrine Disruptor Screening Program (EDSP) away from the
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lab animal toxicity studies it depends on to computational, higher throughput approaches. EPA has indicated that its first
step is to use the new computational approach to prioritize the universe of some 10,000 chemicals EPA staff has estimated
must be screened in the EDSP program per congressional requirements.
Congress required EPA to create the EDSP in a 1996 law that directs EPA to screen chemicals for their ability to
interact with human estrogen hormones. The agency later added androgen and thyroid hormones to the program, which
remains a work in progress as staff strives to transform it from a screening system based on animal models that were state
of the art in the 1990s but remain challenging to perform or understand and costly to new computational approaches.
For the latest SAP meeting, the agency presented a group of specific estrogen and androgen receptor assays, arranged
into two models outlying the receptor mechanisms for the panel’s review, as well as a bioactivity and exposure potentialbased computational screening system for prioritizing chemicals to undergo EDSP screening.
“This model performs very well, over any other regulatory [assay], in particular the uterotrophic assay,” David Dix,
director of EPA’s Office of Science Coordination and Policy (OSCP), who oversees the EDSP program, said of the new
estrogen receptor model. “At this point . . . we’re very happy with it. Here in 2014 after millions of dollars of research . . .
it gets back to truth and value of information. We’re very anxious to deliver on that commitment.”
While the androgen receptor model remains a work in progress, staff described efforts with colleagues at the National Toxicology Program’s Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) to
review the estrogen receptor model and compare it to the uterotrophic assay, one of a dozen animal assays included in the
tier 1 EDSP screen. Warren Casey, director of NICEATM, explained that the project was to “compare the high-throughput
estrogen receptor assays to the three estrogen receptor in vitro assays in EDSP tier 1, especially the uterotrophic assay.”
NICEATM concluded the new estrogen receptor method “demonstrates excellent performance against the in vivo
uterotrophic reference chemicals,” Casey added. “You won’t find any in vitro assay with performance evaluated better
than this.”
“The fact we have 16 assays at five different labs [using] five different tissue types and they’re all saying the same
thing, it’s pretty convincing,” Casey said.
Patience Browne, also of EPA’s OSCP, said staff developed the prioritizing approach in response to recommendations from the SAP meeting in January 2013, where the advisors suggested that EPA come up with some high throughput method to prioritize that large group of chemicals for further screening and testing. “In response, we developed this
network model using 18 assays,” Browne said. “The final step is comparing the model with tier 1 assay results.” She
indicated there was 95 percent agreement with results of chemicals screened in the existing in vivo EDSP assay. “For
anyone who works in this area, this is remarkably strong.”
The model is used to predict an AUC score of bioactivity for a screened chemical, a result that equates to an AC50,
or concentration at which activity is 50 percent of its maximum, Browne said. Staff proposed combining this information
with exposure information into the risk-based Integrated Bioactivity and Exposure Ranking (IBER) approach, also
discussed at the December SAP meeting.
The approach uses reverse toxicokinetics to estimate the daily administered dose, measured in milligrams per
kilogram of bodyweight per day (mg/kg BW/day), necessary to produce steady-state in vivo blood concentrations
equivalent to concentrations showing biological activity in the in vitro high-throughput screening assays, an EPA white
paper prepared before the meeting says. “The putative bioactive administered doses can then be directly compared with
predicted exposures (mg/kg BW/day) . . . .”
The IBER approach, which allows EPA to prioritize chemicals with a risk value rather than toxicity or bioactivity
alone met with positive comments from both SAP panelists and industry stakeholders who spoke at the meeting.
“Utilizing a quotient-based method, even if a little oversimplifed, is the way to go because it addresses both bioactivity and exposure,” said panelist Daniel Schlenk, a professor of aqautic ecotoxicology at the University of California
Riverside. “I think it’s a great tool for screening, at least for the estrogen receptor. I’m really excited about that.”
Other panelists, while approving the general IBER approach, raised some concerns about its readiness for use,
particularly with regard to the exposure component of the IBER score. “IBER is on track to provide a potentially powerful prioritization approach but it does need further refinement and validation,” Propper said. She and other panelists
raised particular concerns regarding the exposure predictions EPA proposed using in the IBER approach.
Veronica Barrocal, an assistant professor of biostatistics at the University of Michigan said, “If you want to use it
right now, I’d feel uncertain using it for chemicals without exposure information.” She urged EPA to seek more
biomonitoring data to back up its exposure estimates.
Still, the panelists and other stakeholders seemed impressed with the general concept and EPA’s progress in moving
the approach towards readiness for use. “I’m very enthusiastic about your approach. You’ve done great work on bioactivity. Your work should now focus on exposure,” Berracol said. “I’m impressed by the pace” of your progress.
Robert Denver, professor of molecular and cell biology at the University of Michigan, called the work to date “a
really impressive effort. I’m impressed to see we’ve moved beyond the state of limitations of some of the tier 1 tests.”
— Maria Hegstad
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Water Quality Trading
EPA Says State, Not Federal, Rules Needed To Encourage Water Trading
EPA officials say the agency has no plans to update its 2003 guidance on water quality trading, and that any current
weaknesses in trading programs can be addressed by stronger, clearer language in state-issued Clean Water Act (CWA)
permits, actions that water quality trading advocates agree is necessary.
“The issue we are asked most often is: can you codify trading in your regulations, which we cannot do,” EPA’s Bob
Rose, who oversees water trading issues, said at a Dec. 11 conference in Arlington, VA, sponsored by A Community on
Ecosystem Services (ACES). “Currently we are not thinking [an update to the 2003 guidance] is needed.”
“Congress writes statutes. We feel that the elevated authority we grant to our state partners is sufficient and the first
level of weakness is at the permit level — most of the challenges we see can be addressed in the permit. So we’re kind of
holding close to our policy,” Rose added. But, he said “strong authoritative language” is important.”
“Where we see the most success is where a state uses strong language in that permit,” he said.
Rose’s comments come as the agency is touting states’ efforts to develop market-based nutrient trading programs,
planning to recognize Dec. 16 a program in Virginia that aims to reduce phosphorous pollution to meet the water cleanup
goals of the Chesapeake Bay.
“By offsetting increases in phosphorus loads, nutrient trading provides important economic incentives for farmers,
including cost savings, new income, and employment opportunities, in addition to environmental benefits, such as air
quality improvements, enhanced wildlife habitat, and carbon capture and storage,” EPA said Dec. 12 announcing the Dec.
16 event that EPA Administrator Gina McCarthy and U.S. Department of Agriculture (USDA) Secretary Tom Vilsack are
scheduled to attend. “The Commonwealth of Virginia has created a market supply and demand for land conservation
projects, taking nutrient trading from the conceptual level to an on-the-ground program that benefits the environment,
reduces costs to the Commonwealth, and provides income to farmers.”
Water quality trading allows entities with a CWA permit to apply offsite pollution reductions to their permit compliance. These reductions, known as credits, can be generated by point sources or nonpoint sources. Trading is one of a
number of market-based mechanisms, including offsets, intended to provide alternative compliance mechanisms for
dischargers.
Many water quality trading advocates have long called for EPA to update and strengthen its 2003 policy, which
generally encourages trading as long as the trade does not result in a permit violation or other regulatory exceedances.
Trading is not mentioned in the CWA or in EPA regulations, and the lack of explicit authorization has led to some
uncertainty about the practice.
A federal judge last year dismissed on procedural grounds environmentalists’ novel suit challenging the legality
of water quality trading in EPA’s broad pollution control plan for the Chesapeake Bay, though the ruling left the
door open for opponents of the practice to challenge future trading in permits or other venues (Water Policy Report,
Dec. 30).
In the wake of the ruling, trading advocates urged EPA to develop a rule clarifying the issue, although they acknowledged the agency was unlikely to do so (Water Policy Report, Jan. 13). And they have been meeting with EPA officials to
discuss how the agency can better encourage states and other entities to adopt trading programs (Water Policy Report,
Aug. 25).
The lack of an updated federal policy on trading has led trading advocates — including representatives from the
wastewater industry, electric power groups, the agriculture community and some environmental groups — to explore
collaboratively best practices for dischargers to trade water pollution credits. These coalitions include The National
Network for Consistency & Integrity in Water Quality Trading, which is facilitated by the World Resources Institute and
the Oregon-based Willamette Partnership and is backed by the USDA, the Electric Power Research Institute and the
Johnson Foundation, and the National Water Quality Trading Alliance (NWQTA), which is spearheaded by Washington,
DC-based law firm Troutman Sanders, LLP and includes founding members from nonpoint source credit generating banks
and functions as a type of trade association for water quality trading stakeholders.
Members of such groups echoed Rose’s call at the ACES forum for stronger, “more authoritative” language from
state regulators and permit writers in order to establish such programs, whether in the form of state legislation or policy.
“If we enabled, in some way, shape or form, legislation or policy guidance at the state level, you’re going to have
more interest in trades or interest in trading than just the pilot programs that come up all the time,” said Brooks Smith, of
Troutman Sanders LLP, and a NWQTA member.
Panel members also reiterated longstanding concerns that it is difficult to encourage point sources such as wastewater
treatment plants to trade with nonpoint source agriculture sources due to insufficient market forces for the agriculture
industry and lack of assurance and transparency for the point sources.
“The big challenge for water quality trading is, how can you design a nonpoint source program to have market forces
in here. We feel this is a challenge, at EPA, to do,” Rose said.
Rose has previously noted that unlike air emissions trading under the Clean Air Act, the point source buyer of water
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quality credits is held liable if the credits are invalidated.
And Chris Hornback, director of regulator affairs at the National Association of Clean Water Agencies (NACWA)
said publicly owned treatment works have long been hesitant to engage in point source to nonpoint soruce trades due to
“costly enforcement” from EPA and from states as well as citizen suits: “Even if EPA leaves us alone, we still can get
sued,” he said.
In addition, wastewater treatment plants often have long-term planning horizons for budgeting and permits that do
not often align with trading regimes, and there are concerns “about using ratepayer money that our utility customers pay
to do work that they are not going to benefit from in the grand scheme of things.”
“These concerns were a big deal and they remain very much a big deal. And some of these concerns are why we
don’t see more trading and why point sources are more comfortable trading with point sources and not so much with
nonpoint sources,” Hornback said, adding that there should be additional pressure on the agricultural community
and a balance between “science based” standards but not too many “overly restrictive requirements” at the state
level. — Amanda Palleschi
Infrastructure
Environmentalists Eyeing Cases To Challenge Water Utility Rate Structures
Environmentalists are looking to individual cases where implementing variable water rates could ease the financial
burden of ratepayers to pay for a municipality’s Clean Water Act (CWA) compliance costs after EPA’s new framework for
financial capability failed to include the language on those rate structures.
Environmental groups had urged EPA to include language on variable water rates — where higher income households bear a greater burden than lower income households — in its long-awaited framework for assessing a municipality’s
ability to pay for infrastructure upgrades needed to comply with CWA mandates, but the agency did not include such
language when it released its final “Financial Capability Assessment Framework” on Nov. 25.
An environmentalist source says that although EPA’s final framework does not preclude a municipality from implementing any of the environmental group’s recommendations, including variable rate structures, it is often not in a utility’s
interests to consider such factors unless there is pressure from EPA headquarters.
“What they chose to include and not include are both important,” the source says. “This is saying, ‘here’s the kind of
stuff we’re really open to and you should think about this stuff’ and so stuff that’s not on there, if it’s not in the utility’s
interest to think about, they’re not going to go out of their way to think about them.”
The source says that environmentalists will look to encourage individual municipalities “where this is playing out in
practice” to encourage variable rate structures, including Washington, DC.
EPA’s framework is intended to complement, although not change, the agency’s initial 1997 guidance for considering
water systems’ financial conditions. EPA developed the new framework after municipal officials said the existing approach was based too narrowly on median household income (MHI) and did not detail other, broader measures water
utilities and local governments can use to consider a system’s ability to pay for CWA mandates like combined sewer
overflows (CSO) costs and requirements in consent decrees.
The new framework includes two sets of factors: a residential indicator (RI), related to impacts on ratepayers, and a
permittee capability indicator, which measures a municipality’s financial strength. Residential factors include “income
distribution by quintile, geography or other breakdown, illustrating how income distribution in the service area differs
from comparable data on the national level or for similar cities;” the income distribution in cities that have adopted
differential rates for low-income customers; poverty trends; percentage of households that own versus rent; sewer and
water usage data for various classes of ratepayers or by type of residence; and projected, current and historical sewer and
stormwater fees.
Permittee financial indicator factors include: unemployment data; rate determination studies used in support of recent
rate hikes; data on late payments, disconnection notices, service terminations, uncollectable accounts, or revenue collection rates; historical increases in rates; state or local limits on property taxes or other revenue streams; other costs, such as
those related to drinking water or other infrastructure; and circumstances that may affect a permittee’s bond rating (Water
Policy Report, Dec. 1).
While municipal groups largely praised the agency for its final completion of the framework, environmentalists did
not see their chief concerns reflected in the document.
The Natural Resources Defense Council (NRDC) and American Rivers, in a Nov. 17 email to top EPA water officials, including deputy assistant administrator for water, Ken Kopocis, wrote that the guidance would be “slanted in favor
of longer compliance schedules than necessary to address chronic wet weather pollution, inadequate sewage treatment
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Infrastructure
and other CWA obligations” if it did not incorporate variable rate structures in its framework. Specifically, the groups
wanted the framework to include block rates for volumetric water and sewage charges, impervious area-based stormwater
fees, and direct financial assistance or lower rates, according to their Aug. 1 comments on EPA’s March 2014 draft
framework.
“While it is obviously true that EPA lacks the authority to set rates, it does have the authority to set compliance
schedules that account for a municipality’s financial capability,” NRDC writes in its comments.
Many municipal groups had strongly opposed including variable rate structures in the document, as many mayors
were concerned that if more affluent ratepayers were forced to bear a larger burden of infrastructure upgrades, they would
abandon the jurisdiction.
The agency did not include that option in its final framework.
The environmentalist source says Washington, DC, could be a location where groups press for the use of a variable
rate structure.
In April 2014 comments on DC Water’s proposal to modify its Long Term Control Plan for eliminating CSOs in
order to incorporate green infrastructure, NRDC and the Anacostia Watershed Society say that instead of delaying the
project’s compliance dates by several years, DC Water should consider options such as, “expanding its low-income relief
programs; instituting higher rates for larger, non-residential customers; adopting more equitable and efficient rate designs;
relying more on the city’s tax base; or charging suburban customers higher rates than they currently pay.”
“In considering these possibilities, DC Water needs to perform a more nuanced analysis of the relationship between
the water and sewer bills for multi-family buildings and the impact of such bills (or increases in such bills) on low-income
tenants, because the current proposal does not indicate that DC Water has a clear understanding of how low-income
residents will be affected by rate increases,” the groups add. NRDC’s letter to EPA officials is available on
InsideEPA.com. See page 2 for details.
The environmentalist source explains that allowing such considerations has implications for length of a compliance
schedule, another chief concern.
“What we’re saying is, lower income people have lower water bills inherently, so if you’re raising rates, everyone’s
rates go up by 10 percent, but lower income people are paying 10 percent of a smaller amount,” the source says. “You can
end up reaching the conclusion that the city can’t pay a certain amount [without a variable structure] without imposing
unfair burdens to lower income people, so you then have to make sure compliance schedules are long enough.”
Local government groups, which had long pushed, along with the water industry, for EPA to remove any mention of
MHI from the guidance along with detailing other factors, largely praised the final release of the framework.
The U.S. Conference of Mayors, the National League of Cities and the National Association of Counties, in a joint
statement following the framework’s Nov. 25 release said the document “outlines new socio-economic factors that will
paint a better picture of what is affordable for residents and communities that will paint a better picture of what is
affordable for residents and communities.”
But the groups mentioned some lingering “key concerns,” looking toward implementing the framework, saying that
EPA had hesitated “to fully embrace consideration of all public water costs to the full extent” they had hoped for, including the lack of consideration of Safe Drinking Water Act compliance costs in the residential indicator portion of the
document.
“Safe Drinking Water Act requirements are an equally essential consideration that must be included in evaluating
financial capability,” they added. — Amanda Palleschi
GOP Senators Weigh ‘Flexibility’ Legislation To Aid Water Infrastructure
Ahead of the 114th Congress, Republican senators are suggesting the need for legislation to provide water and
wastewater utilities with flexibility in meeting EPA and other regulatory mandates in order to free up limited funding for
infrastructure upgrades.
During a Dec. 2 Senate Environment and Public Works water and wildlife subcommittee hearing on innovation in
water and wastewater management, Sen. John Boozman (R-AR), the subcommittee’s ranking member, asked whether
Congress should step in and assuage some of the burden to utilities caused by “perhaps overzealous rulemaking.”
“Do we need to legislatively create more flexibility or is it just a matter of the agency picking and choosing” regulatory priorities, Boozman asked.
Sen. David Vitter (R-LA), the committee’s ranking member, said in a statement for the record that the hearing
“provides a needed opportunity to examine how EPA is impeding local efforts.” Vitter cited the agency’s policy on
blending partially treated and fully treated wastewater during wet weather events and the proposed Clean Water Act
jurisdiction rule as two actions that have diminished EPA’s credibility.
Witnesses at the hearing, who represented publicly owned treatment works (POTWs), did not directly respond to
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Boozman’s question about whether legislation is necessary but did indicate that more flexibility would benefit the utilities
and their ratepayers. Relevant documents are available on InsideEPA.com. See page 2 for details.
Subcommittee Chairman Benjamin Cardin (D-MD) agreed that it is important to look at what is happening at the
national level that prevents the creative activities at the local level. “And I think there are areas where Democrats and
Republicans can agree to give more local flexibility,” he said during the hearing.
In his written statement, Cardin said, “As lawmakers, we need to ask ourselves if the federal programs that support
investments in our communities’ water infrastructure are keeping up with the changing needs and operations of the
utilities they serve. We also must continue to have constructive discussions and debate on how we collectively wish to
protect public health and our environment, and our economic vitality, all of which is intertwined with our ability to
address our critical infrastructure needs.
Ken Kirk, executive director of the National Association of Clean Water Agencies (NACWA), which represents
POTWs, said in a statement issued after the hearing that utilities hope the hearing will prompt Congress “to examine
policy proposals that can incentivize further adoption” of approaches to attract private companies to partner with utilities
on transitioning from “sewerage agencies” to “resource recovery agencies.”
The witnesses at the hearing expressed concerns that growing populations are stressing the country’s aging infrastructure, and at the same time increased regulation controls are stretching POTWs’ budgets which have already been thinned
by shrinking revenues.
As POTWs and consumers use less water due to increased efficiency and conservation practices, prices for
delivering water are driven upward to compensate. But POTWs say they are still seeing fewer and fewer dollars they can
use to upgrade infrastructure and reduce pollution.
Jerry Johnson, general manager and chief executive officer of the Washington Suburban Sanitary Commission
(WSSC), said in written testimony that 26 percent of the utility’s underground water pipes are more than 50 years old and
need replacing.
“Over the next six years our Capital Improvements Program, the cost of replacing underground water pipes will cost
WSSC ratepayers an estimated three quarters of a billion dollars . . . . Given the amount of pipe and time it takes to
replace pipe, WSSC will need to keep up that pace forever,” Johnson said.
WSSC has increased water usage rates over the last three years and has proposed to increase its fixed rates, such as
maintenance fees based on meter size, Johnson said. “Unfortunately, more increases will be needed even though our
recent increases are lower than those in many parts of the country,” he added.
One of the key regulatory costs discussed during the hearing is the need for POTWs to meet stricter limits on nutrient
discharges — an effort that Boozman questioned as to whether the money could be better spent on other water infrastructure projects.
Tom Sigmund, executive director of the POTW serving Green Bay, WI, said the utility will likely need to build a
$220 million facility to meet the state’s new phosphorus limits of 0.1 milligrams per liter (mg/l), a decrease from the
previous limit of 0.3 mg/l.
“Achieving further reductions in pollutant loadings from wastewater treatment plants will be disproportionately
expensive relative to potential gains in ambient water quality. These reductions are also far more expensive relative to the
cost of achieving the same or, in many cases, far better ambient water quality improvements, by addressing unregulated
sources of pollutants or other forms of water quality impairment,” Sigmund said in his written testimony on behalf of NACWA.
Boozman echoed Sigmund’s concerns, saying, “Getting down to 0.5, 0.4, 0.3 is fairly easy . . . but getting down to
0.1 [mg/l] is a big jump” that may have limited environmental benefits. Boozman questioned whether it was better to take
“those limited dollars — because of aging infrastructure and all the things we’ve discussed — and us[e] them on some of
the low-hanging fruit” of other infrastructure upgrades.
Other concerns raised during the hearing included EPA’s jurisdiction rule and what critics say is the agency’s
attempt to avoid applying nationwide an appellate decision that said the agency cannot bar blending of partially and fully
treated wastewater during wet weather events.
Jeffrey Longsworth, a partner with Barnes & Thornburg, reiterated concerns raised by stormwater agencies during a
Nov. 6 webinar that, as proposed, the jurisdiction rule could declare man-made stormwater and green infrastructure features
such as ditches, pipes and municipal separate storm sewer systems (MS4) components as “waters of the United States.”
“[T]he overly broad proposed definition of “tributary” may improperly treat MS4s not as conveyance systems but as
jurisdictional waters,” Longsworth said in his written testimony.
John Hall, director of the Center for Regulatory Reasonableness (CRR) and president of Hall & Associates, also
raised concerns about the jurisdiction rule as well as EPA’s blending policy.
Hall represented the plaintiffs in Iowa League of Cities v. EPA, where the U.S. Court of Appeals for the 8th Circuit
held that a collection of EPA letters and memos, including correspondence between acting water chief Nancy Stoner and
Sen. Charles Grassley (R-IA), amounted to a substantive change in the agency’s policy on blending, undertaken without
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Infrastructure
notice and comment as required by the Administrative Procedure Act.
But EPA declined to appeal the ruling, limiting its precedent.
CRR is seeking to force EPA to apply the ruling nationwide, asking the District of Columbia Circuit to order EPA to
follow the 8th Circuit’s ruling. But EPA argues industry lacks a basis for challenging EPA actions.
“Needless to say, the expenditure of resources on wastewater innovation cannot occur while this type of illegal
agency action hangs over the regulated community,” Hall said in his written testimony. “Communities considering
innovative technologies that are very sensitive to fluctuations in wastewater volume and composition must have this issue
resolved before committing to install such technologies.” — Chris Cotelesse
McCarthy Touts Innovative Funding To Preserve Drinking Water Protection
EPA Administrator Gina McCarthy is emphasizing the need for increased collaboration with states and private sector
investors to ensure adequate supplies of safe drinking water, calling on utilities and governments to continue to seek
innovative funding sources for growing infrastructure needs.
“We’re working more closely than ever with state and local agencies as well as the private sector to leverage more
funding sources,” she said Dec. 9 at a forum in Washington, DC, celebrating the 40th anniversary of the Safe Drinking
Water Act. “We need more people making those investments.”
Commenting on the importance of clean water, McCarthy said, “It’s like gold.”
Other speakers at the forum stressed the challenges utilities face in financing infrastructure upgrades, saying that
public-private partnerships (P3s) as well as new and existing federal programs hold the key to maintaining the success of
the last four decades.
EPA, water utility groups and private investment firms earlier this year called on municipalities to enter into P3s as a
new means of financing water infrastructure projects, with the agency’s increasingly limited state revolving funds (SRFs)
often being used as critical loan guarantees — rather than direct loans — to help limit project borrowing costs (Water
Policy Report, July 14).
Congress has appropriated more than $17 billion for EPA’s traditional drinking water infrastructure funding mechanism — the drinking water SRF (DWSRF) — since fiscal year 1997. And lawmakers are poised this week to approve
FY15 appropriations of $906.9 million for the DWSRF, the same as FY14 and a boost from House appropriators’ original
bill, which would have only provided $757 million.
But EPA’s most recent assessment of drinking water infrastructure needs, done in 2007, estimates the cost of such
upgrades over a 20-year period to be $334.8 billion. And the American Water Works Association (AWWA), which
represents drinking water utilities, has said the true cost of replacing drinking water pipes over the same period will be
more than $1 trillion.
AWWA’s Aurel Arndt said Dec. 9 that public concerns regarding the national debt and deficit have led lawmakers to
scale back funding through the DWSRF and its counterpart for wastewater treatment plants.
While Congress earlier this year approved an additional funding mechanism — the Water Infrastructure Finance and
Innovation Authority (WIFIA) — lawmakers have yet to appropriate funding for it. The FY15 omnibus bill released
earlier this week does not include any WIFIA funding.
“It is important that the existing tax exempt bond and SRF financing tools be preserved and a new WIFIA program
be funded and implemented,” Arndt said. “If we don’t do that, I fear that the future of safe drinking water high quality
service and affordable service that protects public health, promotes community safety and supports a vibrant economy
will become exceedingly difficult if not impossible.”
Walter Lynch, representing the National Association of Water Companies (NAWC), also emphasized the need for
innovative funding options.
“As we look to the future, we need to reinvigorate the spirit of cooperation between the public and private sector,”
Lynch said, adding that “public private partnerships have the potential to reduce time to complete construction projects,
provide more flexibility and enable quicker access to capital, increase access to a broader base of expertise and again to
introduce new technologies.”
In September, a special panel of the House Transportation & Infrastructure Committee released a report on the use of
P3s to finance infrastructure projects, finding the approach can offer significant benefits in some cases but noting there is
little data on how they can work for drinking water and wastewater projects (Water Policy Report, Sept. 22).
NAWC Executive Director Michael Deane used the report’s encouragement of P3s to call for Congress to remove
current limitations on the use of tax-exempt private activity bonds (PABs) for public-private water and wastewater projects.
“The use of PABs spurs capital investment in public projects for upkeep and construction and investors prefer PABs
because interest accrues tax-free,” Deane said in September. If Congress and the administration were to remove the
volume cap for PABs on water and wastewater projects it could support up to 142,500 jobs with $400 million to $500
million in increased state and local tax revenue, he said. — Chris Cotelesse
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Budget
EPA’s FY15 Staffing Reductions Could Create Hurdle For Agency’s Agenda
EPA faces a fiscal year 2015 staffing reduction under compromise appropriations legislation that will cut the
agency’s employee levels to their lowest since 1989, which could create a hurdle for EPA fully implementing its air,
water, climate, and other programs despite the agency suffering only a $60 million budget cut in the FY15 bill.
While the omnibus bill includes restrictions on some EPA policies, such as forcing the agency and the Army Corps of
Engineers to withdraw their controversial “interpretive” rule related to the proposal to define the scope of the CWA, and
continuing riders established in FY14 spending bills, it avoids prohibitions on major contentious rulemakings, including
the CWA rule and EPA’s contested greenhouse gas (GHG) rules for power plants.
The House approved the legislation — which will last until the end of FY15 on Sept. 30 — Dec. 11, and the Senate
approved a two-day extension of current funding to give it time to address procedural issues before it votes on the
omnibus bill.
The omnibus legislation would cut EPA’s enacted budget of $8.2 billion to $8.14 billion. Most of the cuts target the
agency’s science and technology fund, which funds much of the agency’s scientific research work. That account would
drop from $759.2 million in FY14 to $734.6 million in the current year. Relevant documents are available on
InsideEPA.com. See page 2 for details.
However, despite the agency’s budget holding at nearly FY14 levels, EPA faces another staffing cut shortly after it
has implemented two controversial rounds of employee buyouts to meet its current staffing caps.
Sources in the agency’s staffing union have previously said the cuts are hindering the quality of the agency’s work
and making it harder to adequately complete work such as enforcement and writing permits.
A source at the American Federation of Government Employees, one of the unions representing EPA staff, has
previously said the union is eyeing an unfair labor practice complaint over the buyouts in order to force talks on how
work will be divided among the remaining employees after staffing reductions. Their aim is to prove that “not everything
can be a priority” with a reduced workforce, the source said.
The summary of the omnibus provided by the House says it reduces EPA’s staffing to its lowest level since 1989.
According to EPA’s website, it had 14,370 full-time equivalent staff in FY89, which was a slight increase from the 14,442
FTEs in 1988 — though both levels are far short of the 18,110 peak in FY99.
Funding for most EPA programs fluctuate only slightly under the omnibus bill. Loan and grant programs for
states, including the state revolving funds (SRFs) that support water infrastructure projects, are slated to rise slightly
overall in FY15.
The State and Tribal Assistance Grant account, which includes the SRFs, EPA’s categorical grants and other funding
assistance programs, is slated to rise slightly from $3.53 billion to $3.54 billion.
Despite requests to cut the SRFs from both the Obama administration and House Republicans, those programs are
proposed to hold largely at current levels, with the clean water fund cut slightly from $1.45 billion in FY14 to $1.44
billion in FY15, and the drinking water SRF holding steady at $906.8 million.
Appropriations for categorical grants are also proposed to continue at FY14 levels, with the omnibus funding the
program at $1.054 billion.
However, appropriators opted not to include any funding for pilot programs to implement the Water Infrastructure
Finance and Innovation Authority (WIFIA), a novel water infrastructure financing system that Congress earlier this year
authorized for $350 million through 2019.
Drinking water officials had called on legislators to appropriate money for the program in FY15, emphasizing the
need for administrative funds to help EPA figure out how to implement WIFIA, but lawmakers appear to be standing by
their requests for regulators to produce implementation plans before they commit federal money to the pilots — which
utility groups called “a chicken-and-egg problem” in a letter to House appropriators.
Meanwhile, under the omnibus EPA’s Superfund account is set to hold steady at $1.08 billion, while the Environmental Programs & Management account, which funds most agency rulemaking and regulatory efforts, is set for a $7 million
reduction, from $2.62 billion to $2.613 billion.
Lawmakers’ decision not to include prohibitions on EPA’s power plant rule or CWA jurisdiction rule could
weaken their leverage using future spending bills to block the rules, as that legislation will not become law until months
after EPA is projected to finalize the regulations. The agency currently plans to finalize its GHG rule for new utilities in
January, issue the final GHG rule for existing utilities in June, and finalize the CWA jurisdiction rule in April.
Still, EPA’s critics were able to insert some policy provisions in the bill, including the measure that would force EPA
and the Corps to withdraw their joint interpretive CWA rule. The regulation, issued in final form in March, aimed to
clarify agricultural conservation practices deemed exempt from CWA dredge-and-fill permits, but critics say it is rife with
legal problems and other flaws.
The bill’s other policy provisions include one that would block EPA from using a controversial method for calculat-
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Budget
ing wetlands mitigation requirements, and another that orders regulators to prepare a comprehensive report on climate
change programs that the agency has pursued in FY14 and FY15.
The bill blocks regulators in Louisiana from applying the “modified Charleston method”— a modified version of an
approach first developed by the Corps’ Charleston district — which requires assessors to consider a variety of factors in
quantifying adverse impacts to ensure that impacts to wetlands function by a dredge-and-fill project are fully compensated by the mitigation plan. Republicans, in particular Sen. David Vitter (R-LA), have charged that the approach
drastically increases the cost of mitigating construction projects without significant environmental gains.
The omnibus bill also continues an existing bar on GHG reporting and permit mandates related to emissions from
livestock and manure, as well as the “Buy American” requirements for iron and steel products purchased through the SRF
programs. — David LaRoss
Permit Veto
Judge Orders EPA To Halt All Pebble Mine Veto Activity Under Injunction
A federal judge has ordered EPA to completely halt its review of the proposed preemptive Clean Water Act section
404(c) veto of the planned Pebble Mine in Alaska, saying a preliminary injunction the judge recently issued against the
veto bars the agency from advancing the action in any way, despite EPA’s claim that it should only be prevented from
taking final action on the proposal and can continue some work.
Under the injunction, “defendants must stop all work connected to the 404(c) proceeding. Defendants may not
engage in any activities related to the 404(c) process,” U.S. District Court for the District of Alaska Judge H. Russel
Holland says in a Dec. 4 order in Pebble Limited Partnership (PLP) v. EPA.
The order means EPA will be unable to review public comments on the proposed veto or otherwise move closer to
final action on the planned hard-rock mine until the district court suit is resolved. Relevant documents are available on
InsideEPA.com. See page 2 for details.
PLP is claiming that EPA inappropriately worked with environmentalists on the watershed study that it used to justify
the proposed veto. PLP claims this violates the Federal Advisory Committee Act’s requirement that membership, charter
and activities of agency advisory committees must be publicly reported, and their input may only be advisory and cannot
be involved in policy decisions.
Holland issued the injunction in a Nov. 24 order, without an opinion or other explanation.
According to a status report dated Dec. 3, EPA had argued that it “reads the plain language of the Court’s order to
preclude the Regional Administrator from acting on the pending proposed determination by issuing any recommendation
and to preclude EPA from taking any similar public step that would change the status quo of its Section 404(c) process.
EPA does not interpret the order as otherwise impacting essentially internal Agency work on this issue, including work
related to public comment review or internal deliberations.”
But PLP argued that “the Court’s Preliminary Injunction is clear and unambiguous and that it applies by its terms not
only to next public steps that the Regional Administrator might take, but also to the kinds of activities that Defendants
now posit,” including public hearings and internal review.
Mining Company Again Appeals EPA’s Veto Of Authorized CWA Permits
The Mingo Logan Coal Company has again appealed a court ruling that backed EPA’s Clean Water Act (CWA)
authority to “veto” the company’s mining disposal sites already authorized in Army Corps of Engineers permits, despite
an earlier appellate decision that upheld the agency’s power to block already-permitted mine sites.
Plaintiffs in Mingo Logan Coal Company v. EPA filed a notice of appeal Dec. 9 with the U.S. Court of Appeals for
the District of Columbia, signaling that it will challenge a D.C. district court ruling that upheld EPA’s controversial postpermit veto blocking a West Virginia mine on the merits. The notice is available on InsideEPA.com. See page 2 for details.
The new appeal returns Mingo Logan to the D.C. Circuit after a three-judge panel ruled in 2013 that EPA has the
authority to issue such vetoes generally — and the Supreme Court declined review — although that decision did not
touch on whether EPA’s veto was properly justified, an issue the district court took up on remand.
The Sept. 30 decision by federal district judge Amy Berman Jackson that is now under appeal rejected the mining
company’s claim that a CWA veto issued after a permit has been finalized must be based on “new” information that harm
would occur from allowing disposal — an argument the company could take up again before the D.C. Circuit.
“Although the agency’s decision to exercise its veto authority in 2011 after it declined to do so in 2007 can be
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Permit Veto
viewed as a change in position that fairly requires some explanation, it is not so drastic a change as to require a heightened standard of scrutiny,” Jackson said in the ruling.
Mingo Logan sued EPA after its issued a veto under CWA section 404(c) authority, withdrawing two West Virginia
streams as disposal sites for the Spruce Mine mountaintop mining operations, despite the Corps having already issued a
final permit under section 404 of the water law years earlier.
While the Army Corps of Engineers issues “dredge-and-fill permits” under section 404, EPA has the ability under
section 404(c) to “prohibit the specification (including the withdrawal of specification) of any defined area as a disposal
site . . . whenever [EPA] determines, after notice and opportunity for public hearings, that the discharge of such materials
into such area will have an unacceptable adverse effect on water supply, aquatic life, wildlife or recreational areas.”
While the statute provides EPA with authority to withdraw disposal sites associated with the permits, the action
usually has the effect of stopping development since permits provide authority to dispose of dredge-and-fill material only
in specified disposal sites. In its first ruling on the case the district court said EPA could not use 404(c) once the Corps
finalizes a permit — but on appeal the D.C. Circuit reversed, holding that vetoes can be issued “at any time.”
The appellate court then remanded the case to the district level for a ruling on the merits of whether EPA’s decision
was reasonable under the Administrative Procedure Act, resulting in Jackson’s latest opinion that backs the agency’s veto
authority. She backs the circuit court’s ruling that Congress intended to place no temporal restrictions on 404(c), as it
applies “whenever” EPA finds harm.
Jackson also cites a 2009 Supreme Court ruling, FCC v. Fox Television Studies, finding that a policy change does not
have to be justified by “reasons more substantial than those required to adopt a policy in the first place,” and that a prior
position does not preclude EPA from a future change in that position, or set a higher bar for such a change.
She added that EPA’s decision is well-supported by the record of information underpinning the veto, which shows
that the agency had “misgivings” about the permit despite not formally objecting before its issuance, and rejecting the
company’s argument that the veto was an “about-face’ in position.
Chemical Security
Senate Democrats Urge EPA To Accelerate New Rules For Facility Security
Senate Democrats are urging EPA officials to accelerate plans for potentially stricter regulations to improve security
at industrial facilities such as chemical plants in order to meet President Obama’s executive order seeking more-stringent
rules, though GOP senators counter EPA is moving too quickly without fully weighing industry input.
Debate over the administration’s efforts to bolster plant safety took place Dec. 11 at a joint Senate hearing, the same
day as the House approved a bill, previously cleared by the Senate, to extend by four years the existing Department of
Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS). The program has survived to date with
annual reauthorizations, but the bill would ensure more permanence and make some reforms to it.
CFATS requires affected facilities to develop plans to reduce risks to the public, such as reducing harm from chemical releases from a plant that could occur following a terrorist attack. But CFATS does not regulate water treatment
facilities and also does not address a slew of requirements that environmentalists want EPA and other agencies to impose
on plants to bolster their security.
EPA, DHS and the Occupational Safety and Health Administration (OSHA) are leading a federal effort to implement
Obama’s Executive Order 13660, which calls for strengthening facility safety through improved government coordination
and information sharing as well as with modernized policies rules and standards. Obama issued the order in August 2013
in response to the April 17, 2013 ammonium nitrate explosion at a fertilizer facility in West, TX, that killed 15 people and
injured more than 200 others.
Democrats, environmentalists and other supporters of stricter standards want EPA to use its Clean Air Act authority
to impose stricter requirements on facilities to develop risk mitigation plans. Some also advocate the agency requiring
companies to use inherently safer technologies (IST), which could include ending use of chlorine (Water Policy Report,
Nov. 18, 2013).
At the Dec. 11 joint hearing of the Senate Environment and Public Works Committee (EPW), and the Senate Health,
Education, Labor, and Pension Committee, EPW Chairman Barbara Boxer (CA) and fellow Democrat Edward Markey
(MA) said federal officials have done little to improve facility safety despite numerous meetings on the EO.
“I am very concerned that despite the clear risks posed by our nation’s chemical facilities, very little progress has
been made to improve safety,” said Boxer. “No agency has proposed changes to its chemical safety program, and not a
single facility faces new federal requirements to adopt safety precautions to reduce chemical hazards.”
During the hearing, Boxer and Markey argued that hundreds of accidents have occurred at industrial facilities since
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Chemical Security
the West explosion and specifically urged federal officials to tighten regulations to address risks from certain hazardous
chemicals that have drawn regulators’ attention in the wake of West and other incidents.
For example, they reiterated calls for EPA to add ammonium nitrate to its air law Risk Management Plan (RMP)
accident prevention program — floated as an option in federal plans to implement the EO. RMPs must include an
assessment of hazards from accidental releases from facilities storing chemicals over a certain thresholds, and a plan to
prevent releases.
Markey also argued that, despite the EO, federal agencies have no plan for reducing risks from chlorine, a substance
used by thousands of water treatment plants to purify water, and which can also be used as a weapon.
EPA waste chief Mathy Stanislaus told Boxer that although the agency has not yet decided whether to add
ammonium nitrate to its RMP program, the agency has met all the deadlines the agency set for itself in an interagency
working group’s June report on implementing the EO. Stanislaus said EPA plans to propose regulations strengthening its
facility safety rules in 2015 and finalize regulation before Obama leaves office.
Among the deadlines EPA has met, Stanislaus said, was issuing a July request for information (RFI) to support an
update of the agency’s RMP accident prevention program, authorized by section 112(r) of the air law.
During the hearing, Republican senators — including EPW ranking member David Vitter (LA) — countered that
EPA is moving too fast and considering inappropriate changes that could worsen facility safety.
Vitter claims EPA provided insufficient time for public comment on the RFI, noting it is a very complex program. He
urged Stanislaus to fully consider industry input and the effects of any RMP updates on small businesses.
Soon after the release of Obama’s order, Boxer pressed EPA to follow a 2002 recommendation from the Chemical
Safety Board to add ammonium nitrate to its RMP program. She also urged the agency to answer a 2012 petition from a
coalition of advocates urging EPA to use authority under its air law power to mandate IST.
Proponents of such a requirement argue that IST, usually alternative chemicals or process changes, would prevent or
reduce the consequences of an accident or attack. But Republicans and industry argue businesses already consider IST
where feasible, and that process safety decisions should be left to companies.
Federal agencies outlined plans for improving facility safety in a June 6 report, “Executive Order 13650 Actions to
Improve Chemical Facility Safety and Security — A Shared Commitment.” In the report, EPA committed to begin
modernizing existing safety regulations within one year, and said it would encourage facilities to use IST through a series
of steps including an alert and guidance, which could ultimately inform a future rule on the issue.
But during the Dec. 11 hearing, Boxer emphasized the slow progress of EO implementation, saying more than
355 industrial facility accidents have occurred since the West explosion. While the EO directed federal agencies to take
15 actions to improve facility safety, including improving oversight of ammonium nitrate, only four steps have been
completed and those primarily streamline federal processes rather than improve safety at facilities.
One in three children in the United Stats attends a school that could be impacted by an industrial facility disaster,
Boxer said, citing a recent report from the Center for Effective Government.
Markey said thousands of facilities in all 50 states put citizens at risk, citing findings from a Congressional Research
Service (CRS) report issued earlier this month. The Dec. 3 CRS report also says that data on the RMP program “are not
sufficient to determine the actual scope of compliance or noncompliance with the program,” and adds that facilities that
are required to submit information to EPA may not have done so. Relevant documents are available on InsideEPA.com.
See page 2 for details.
But GOP senators argued that changes being considered under the EO are unnecessary. “Many of the actions being
contemplated as part of this order may actually result in outcomes contrary to our collective goals, and more specifically
may result in less compliance with the law and less safety at these already highly regulated facilities,” Vitter said.
Vitter also noted that EPA has set tighter deadlines for regulatory decisions than OSHA, failing the EO’s call for
federal agencies to harmonize regulations. The senator also outlined his concerns over the process in a Dec. 11 letter he
and fellow EPW Republican Sen. James Inhofe (OK) sent to Stanislaus.
The letter urges EPA to seek industry advice from a Clean Air Act Advisory Committee (CAAAC) panel, and also
convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of any new requirements.
Stanislaus told Vitter that EPA is still considering whether to seek advice from a SBREFA panel. But regarding the
request for seeking CAAAC input, late last month, EPA denied an industry request to convene a currently inactive panel
of its CAAAC, saying it would “stretch already extremely thin resources.”
At the hearing, Sen. John Barrasso (R-WY), reiterated concerns from an October letter he sent EPA that warned that
adding ammonium nitrate to the RMP would unnecessarily hurt industry economically and lead to job losses. He argued
that storage of the substance is already covered under existing OSHA regulations.
EPA in a Dec. 10 response to Barrasso said agency staff is reviewing comments on the RFI with a focus on protecting
emergency responders and the public, and ensuring any gaps in federal regulation are addressed. EPA also says it will
work closely with other agencies to ensure there is no overlap or duplication in regulation.
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Chemical Security
Meanwhile, the House Dec. 11 approved by voice vote the Senate-approved version of H.R. 4007, a bill reauthorizing the CFATS program for another four years. The bill now heads to Obama for his signature. If signed into law
by the president, the bill would also establish a voluntary new expedited approval procedure for site security plans for
certain chemical facilities, according to a statement from the Senate Homeland Security Committee.
It would also improve information sharing between federal, state and local officials, and enhance DHS’ ability to
identify high-risk chemical facilities that otherwise go unmonitored, the statement says. The bill also preserves an
exemption for water treatment facilities, which DHS and some House Democrats have sought to remove.
Until now CFATS has been operating on temporary authority provided by annual appropriations bills, which has
created problems, including during the government shutdown last year, when CFATS’ authority lapsed, leaving more than
4,000 high-risk facilities without federal security oversight — the first lapse of CFATS since the program started.
The American Chemistry Council issued a statement backing the bill, saying HR 4007 provides “a long-term solution
for regulating security that will help create a stronger foundation for CFATS.”
Additionally, the statement says the bill will “help the Department improve its outreach to chemical facilities and the
process for vetting personnel.” — Dave Reynolds
EPA Denies Industry Push For Greater Role In RMP Facility Safety Updates
Citing “extremely thin resources,” EPA has denied an industry coalition’s request for greater input into the agency’s
effort to strengthen its risk management plan (RMP) facility safety program by convening a federal advisory committee to
provide industry input, bolstering industry arguments that the agency should not expand an already strapped program.
In a Nov. 20 letter to a coalition of industry groups, Reggie Cheatham, acting director of EPA’s Office of Emergency
Management, denies the groups’ request for the agency to seek advice from a currently inactive panel of its Clean Air Act
Advisory Committee (CAAAC), which could provide industry advice on scientific and technical aspects of the RMP
program.
“Re-establishment of the advisory committee under the Federal Advisory Committee Act (FACA) for the highpriority RMP work will take considerable time and will stretch already extremely thin resources,” Cheatham says, in the
letter to more than a half dozen industry trade associations, including the Agricultural Retailers Association (ARA) and
The Fertilizer Institute. The letter is available on InsideEPA.com. See page 2 for details.
Additionally, Cheatham notes that EPA has extensive experience implementing the RMP program and has sought
advice on possible RMP changes from process safety experts and industry, including several of the groups that requested
additional input through the advisory committee. Cheatham also says EPA and other federal agencies have held 10
listening sessions in nine cities on the effort to strengthen facility safety through President Obama’s Executive Order
13650.
Obama issued the order last year in response to the April 17, 2013, ammonium nitrate explosion at a fertilizer facility
in West, TX, that killed 15 people and injured some 200 others. The order seeks to strengthen the safety and security of
industrial plants through improved communication and information sharing, as well as modernizing policies, rules and
standards.
As part of the broad federal effort, EPA took comment through Oct. 29 on a request for information (RFI) on how to
improve its RMP program, which is authorized by section 112(r) of the Clean Air Act and currently requires facilities to
report holdings of threshold levels of certain chemicals and to reduce the risk of their accidental release. EPA’s July RFI
suggests potentially sweeping changes to the RMP rule, ranging from covering new chemicals and requiring additional
analysis to scrapping the program in favor of new requirements
In the Nov. 20 letter to industry groups, Cheatham says, “EPA has gained significant insight from engaging with you,
and we will continue to work with you and your members to understand your industry’s operations.”
Still, the denial is prompting pushback from an industry source who says the assertion that EPA lacks resources
to convene CAAAC panel backs long-standing industry arguments that EPA should not expand the RMP rule when it
lacks resources to fully implement the existing program.
In opposing a possible RMP expansion, the industry source notes findings in a Chemical Safety Board (CSB) report
released in November, which found some EPA regions lack adequate resources for inspections, making full facility
inspections “impossible.”
The report on CSB’s investigation into a 2012 fire at a Chevron oil refinery in Richmond, CA, that endangered
workers and prompted citizens to seek medical treatment, focused on EPA Region 9. CSB found the region has six
inspectors to cover 1,100 facilities in California and other states, and interviewed regional officials who said they need to
spend more time on-site during facility inspections to interview workers and better understand how potential problems are
being addressed (Water Policy Report, Dec. 1).
In a statement to Inside EPA, the industry source says Cheatham’s assertion that EPA lacks resources to seek industry
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Chemical Security
input through a federal advisory committee “seems to align with the CSB report that EPA is already stretched thin as it
relates to the Risk Management Program. If that is the case, it does not make a lot of sense to further expand the
program.”
Additionally, the source says the West explosion resulted from a violation of Occupational Safety and Health
Administration rules on storing ammonium nitrate, and did not demonstrate any failure of EPA’s RMP program.
While CSB has argued EPA lacks resources to adequately inspect facilities, the board in Oct. 29 comments on the
RFI urged EPA to finally heed the CSB’s 2002 call to expand RMP to cover reactive chemicals, such as ammonium
nitrate, a move CSB says could have led to changes that may have mitigated the West disaster.
In addition to seeking further involvement in EPA’s effort to revise RMP through a panel of the CAAAC, industry
officials have also urged the U.S. Small Business Administration’s Office of Advocacy to press EPA to give greater
weight to potential impacts on small businesses from a possible RMP expansion.
During a Nov. 10 conference call on the federal effort to implement Obama’s order, EPA waste chief Mathy
Stanislaus said EPA officials are currently reviewing comments received on the RMP RFI and are still weighing whether
to seek advice from a Small Business Regulatory Enforcement and Fairness Act panel on possible impacts of an RMP
expansion on small businesses. — Dave Reynolds
Cyanotoxins
Toledo Mayor Seeks Executive Order To Address Great Lakes Cyanotoxins
The mayor of Toledo, OH, is calling for an executive order that would require federal agencies to take quick action
to prevent harmful algal blooms in the Great Lakes, telling a Senate agriculture panel that voluntary conservation practices are inadequate to prevent future drinking water crises from high levels of cyanotoxins, as occurred in western Lake
Erie in August.
During a Dec. 3 Senate Agriculture, Nutrition and Forestry Committee hearing on agricultural impacts on fresh water,
Mayor D. Michael Collins said that water quality in the Great Lakes is an “international problem” which requires the “full
force of our government and Canada,” including an executive order from President Barack Obama if necessary. Relevant
documents are available on InsideEPA.com. See page 2 for details.
“I urge Congress to work together with the administration to recognize that Lake Erie and our Great Lakes are
national treasures and to make our region’s water quality issues a priority,” Collins said. “If we give this the debate and it
stops there, what are we going to say to the next community that goes through this? I am asking realistically for an
executive order.”
Collins said the order he is suggesting should be modeled on Obama’s 2009 executive order, which established a
federal leadership structure to study and implement the expedited cleanup of nutrient and sediment pollution in the
Chesapeake Bay. The mayor also requested federal water quality standards for toxic algal blooms and funding for
infrastructure and conservation practices to watersheds that affect the water quality of Lake Erie.
The executive order should examine causes and solutions beyond agriculture, Collins said, and mirror the efforts to
cleanup the Chesapeake Bay. “The issues that are defined in that executive order are not uncharacteristic of the situation
in Lake Erie,” he said.
Collins added that his proposal for such an executive order had been well-received at a recent meeting of the U.S.
Conference of Mayors.
“There seemed to be a general sense from the United States mayors that this would be a good thing to do, but the
frustration I have with government is that you spend a lot of time talking and little time accomplishing. We’re not going to
talk our way out of this problem,” Collins said.
Despite Collins’ sense of urgency, Sen. John Boozman (R-AR) praised the agriculture industry’s efforts to reduce
nutrient pollution from runoff.
“The good news is I’m excited that, despite that [the Toledo drinking water emergency], we really are hearing a lot of
positive things that people in agriculture, people in development across the board really are starting to get this and we are
starting to see some improvement,” Boozman said.
Committee Chairwoman Debbie Stabenow (D-MI) called the August situation a “stark wake up call,” but also said
new and existing voluntary programs contained in the 2014 Farm Bill will help.
“Our farmers want to be part of the solution, and they are, which is why we made conservation a priority in the 2014
Farm Bill,” Stabenow said.
“While there is no single solution, no silver bullet that will resolve this crisis, we know that working together and
sharing our knowledge will help us to develop strategies capable of making a broad impact on the quality of our water,”
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Cyanotoxins
she added.
National Resources Conservation Service (NRCS) Chief Jason Weller said the U.S. Department of Agriculture has
invested $46 million in the western Lake Erie basin for conservation planning and water quality practices during the last
five years and sent $4 million following the Toledo crisis for practices such as installing cover crops and educating
farmers.
He said the NRCS’ investments may take some time to pay off, but the “silver lining” is that the Toledo crisis helped
“bring national attention to what was a local or regional issue.”
“I think we’re going to start to see results. I can’t necessarily promise that we’re out of the woods yet in terms of
water quality in Lake Erie. We have a ways to go, but I think we’ve really made some good investments, laid a strong
foundation over the last few years that I really think is going to set us up for some big success moving forward,” Weller
said.
Weller also echoed the agriculture industry’s emphasis on voluntary practices that farmers and ranchers can implement in order to reduce nutrient runoff to water bodies, opposing further regulations.
“In our view, the voluntarily collaborative approach is the key approach,” Weller said. “Ultimately, I think it will
make us more successful.”
However, Collins believes the clock is counting down to another cyanotoxin crisis somewhere in the country, saying
it is not a matter of “if” but “when and where.”
“In listening to the testimony [of agriculture representatives] . . . I’m hearing just ‘We need more time,’” Collins said.
“The longer we wait, the greater the consequences are. . . . If you did it in the Chesapeake Bay, why can’t you do it in
Lake Erie?”
The mayor’s request for federal action follows a Nov. 19 House hearing on cyanotoxins in drinking water during
which Democratic lawmakers, environmentalists and some state regulators urged EPA to use the Clean Water Act (CWA)
to protect wetlands and small waterbodies from harmful algal blooms (Water Policy Report, Dec 1).
However, drinking water utilities say the CWA’s existing authority is not enough to tackle the problem of excess
nutrients and are urging Congress to consider whether nonpoint sources of pollution should be brought under the jurisdiction of the water law.
The agency has thus far largely focused its outreach and efforts on addressing cyanotoxins through existing Safe
Drinking Water Act regulatory mechanisms, such as developing technical guidance, known as health advisories, for
drinking water utilities, expected to be finalized by next spring. The agency is also working to finalize a method of testing
for algal toxins in water that uses more “sophisticated machinery” for sampling methodology than what is currently
available and hopes to have it available in January or February of 2015, Grevatt said Nov. 7 at a meeting of the National
Drinking Water Advisory Council. EPA is also considering developing enforceable drinking water standards for three
cyanotoxins, an action Grevatt emphasized in his written testimony for the Nov. 19 hearing.
Additionally, Rep. Bob Latta (R-OH) has introduced a bill, H.R. 5753, to require EPA to formulate a plan with
timelines to “fully evaluate the risk of cyanotoxins” and provide more guidance and “technical assistance” to states to
help them mitigate the risks presented by cyanotoxins. — Chris Cotelesse
Senate Approves Bill Requiring EPA To Craft Algal Blooms Health Advisory
The Senate Dec. 11 unanimously approved legislation requiring EPA to establish a health advisory for microcystin, a
toxin produced by certain types of freshwater cyanobacteria that can create algal blooms.
The bill, S. 2785 authored by Sens. Sherrod Brown (D-OH) and Rob Portman (R-OH), would require EPA to
establish the advisory, and to report to Congress on whether an enforceable drinking water standard for microcystin is
needed. The legislation is available on InsideEPA.com. See page 2 for details.
Under the Senate bill, EPA would have to finish the advisory within 180 days of the bill becoming law. A pending
House version of the legislation introduced by Rep. Marcy Kaptur (D-OH) is largely similar to the upper chamber’s
legislation, though it would impose a tighter 90-day deadline.
S. 2785 says the advisory would include recommendations on the level of microcystins in drinking water below
which the water is expected to be safe for human consumption; feasible treatment techniques and other means for
achieving that level, and standardized procedures for testing for microcystins in drinking water.
The legislation would also require an analysis of available treatment techniques and other means for addressing
microcystins in drinking water.
The bill was spurred by a drinking water emergency in early August in Lake Erie, which prompted Toledo, OH,
officials to issue a “Do Not Drink” advisory that left 500,000 residents without clean drinking water due to high levels of
microcystin from harmful algal blooms (HAB) in the western part of the lake.
Ohio and some other states have their own standards for microcystin, but there is not yet a uniform national standard,
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Cyanotoxins
in part because the agency does not yet have adequate data on the negative health effects of HABs to set benchmarks.
EPA and the National Oceanic and Atmospheric Administration are currently working to expand a voluntary monitoring program for algal blooms, and EPA is also weighing whether to require drinking water utilities to monitor for the
toxins in the upcoming fourth iteration of its unregulated contaminant monitoring rule.
“Our bill will address a void in our current monitoring efforts to protect our water and address potential public
health threats,” Brown said in a statement accompanying the Senate passage of the bill. “It’s critical that all levels of
government work together to determine if our drinking water is safe for human consumption.”
It is unclear whether the House will act on the legislation in the lame duck session of the 113th Congress. If the lower
chamber fails to clear the bill, it would have to be reintroduced in both the House and Senate next year under the Republican-led 114th Congress. — Amanda Palleschi
Hydraulic Fracturing
Industry Queries Fate Of TSCA Fracking Rules As EPA Weighs ‘Next Steps’
Energy industry officials are questioning whether EPA will ever issue a potential Toxics Substances Control Act
(TSCA) policy to obtain health and safety data on chemicals used in hydraulic fracturing, after EPA moved the rule to the
long-term actions section of its latest Unified Agenda of pending rules and says it is weighing “next steps” on how to
proceed.
“It’s not clear if it’s going to move forward at this point,” one industry source says of the TSCA fracking rule, which
EPA issued through an advance notice of proposed rulemaking (ANPR) earlier this year.
One environmentalist who favors strict TSCA reporting requirements for fracking chemicals says the “process seems to be on a very slow
track,” adding, “It’s just not an administration priority.”
Industry argues EPA is
The ANPR, which EPA took comment on through Sept. 18, includalready collecting a
ing options such as reporting rules under section 8 of TSCA to require
significant amount of
manufacturers, processors or distributors to report to EPA the names,
data on chemicals used
volumes, estimated exposure levels, disposal methods and other information
in fracking.
on their chemicals, along with health and safety studies.
The agency’s fall 2014 Unified Agenda includes the rulemaking in
its long-term actions section, which covers rules for which EPA does not
plan any action in the next 12 months. The agenda says the next actions are “undetermined.” An agency spokeswoman
says EPA is reviewing the more than 2,000 comments received on the ANPR to “make a decision on next steps” but that
no decision has yet been made.
Several states and industry groups, however, have warned EPA that its TSCA authority to require reporting is limited
because the statute does not govern end-use of the chemicals for fracking wells.
In addition to the concerns about EPA’s authority to address use of chemicals for fracking activities, the industry
source points out that the sector in written comments on the ANPR has also stressed that EPA already has a substantial
amount of data on fracking chemicals available through other elements of TSCA. More data is also available through the
voluntary database where energy companies report their chemicals, FracFocus.
Since the launch of the FracFocus database in April 2011, nearly a dozen states have approved laws or adopted rules
that either require drillers to disclose their chemical usage to the database or allow disclosure to FracFocus in lieu of or in
addition to disclosure to the state.
In addition to FracFocus and TSCA, oil and gas operators also must maintain certain information about substances
used and stored on fracking sties through Emergency Planning and Community Right-to-Know Act requirements, industry
argued in comments.
Moreover, industry argued that EPA is already collecting a significant amount of data on chemicals used in fracking
in accordance with its massive study of the controversial practice’s potential impact on drinking water, which included
data collection from nine drilling companies in 2012 and analysis of well data from 350 fracking operations.
The industry source says EPA’s decision not to include the rule on the Unified Agenda is likely because the agency is
weighing the information it already has on chemicals that may be used in fracking and seeking to identify where there
may be gaps before taking further action on the ANPR or another policy.
Some states, including Wyoming and Texas, as well as oil and gas producers and service companies, argue that
because TSCA section 8 governs manufacturers, processors, and distributors, the provisions cannot be read to impose
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Hydraulic Fracturing
reporting requirements on energy companies and their fracking chemicals.
But environmentalists and other states, including New York, support a rulemaking under TSCA. For example, New
York Attorney General Eric Schneiderman (D) in Sept. 18 comments said he “supports EPA’s rulemaking and requests
that the agency make reporting mandatory for all manufacturers and processors of hydraulic fracturing chemicals and
mixtures,” which he argues include well operators and service companies.
Earlier this year, environmentalists highlighted TSCA section 8 rules for fracking chemicals as one of their major
priorities for the Obama administration to complete ahead of the 2016 presidential election, hoping to have President
Obama sign off on strict fracking rules while he is still in office. They fear that a potential Republican victory in the 2016
presidential election could lead to an administration that would block or reverse such rules.
Other environmentalists’ priorities for rules they want Obama to finalize include effluent regulations for shale gas
and air rules to directly target methane emissions from the sector.
“Our focus is the air, water, and toxics work for the foreseeable future, at least until we have a different political
situation, where we may be able to have legislative action” on new fracking rules, one environmentalist told Inside EPA in
October (Water Policy Report, Nov. 3).
EPA in the ANPR took comment on several issues that industry and states said indicated the agency is considering
the question of whether well operators and service companies are “processors” under TSCA, saying in the notice that
“EPA understands that service providers or well operators often process chemicals at the drilling site.”
The ANPR also asks, “What activities associated with hydraulic fracturing are carried out by the well operator at the
well site?” and “Would manufacturers (including importers), service providers, well operators, or all three, know how a
chemical substance or mixture is used at well sites?”
But energy-producing states and industry argue that the activities involved in preparing fracking fluid for injection at
the well site cannot be considered processing, thereby limiting EPA’s authority to conduct a section 8 rulemaking to
capture well operators and service companies.
Wyoming, for example, argued in its comments on the ANPR that the “plain language” of TSCA does not support
EPA’s interpretation, adding that, if EPA’s interpretation were correct, a “‘processor’ might include a home or office
cleaning service that mixes ammonia with water prior to washing floors or windows.”
Halliburton said in Sept. 18 comments that EPA’s interpretation is “incorrect,” and that service companies are instead
“end users” of the chemicals used in fracking fluid mixtures and therefore not subject to section 8 requirements.
The ANPR stems from EPA’s partial response in a 2011 petition from environmental groups, in which the agency
agreed to explore a rulemaking to require manufacturers and processors of fracking chemicals to submit data, including
any health and safety studies, on both individual substances and common mixtures used in fracking fluids.
The agency later rejected the portion of the petition that sought to require a test rule under TSCA section 4 that
would have required manufacturers and processors of exploration and production chemicals to conduct toxicity testing on
their products and turn over the data to EPA. The agency said environmentalists had not provided sufficient evidence to
demonstrate the need for a section 4 rule, but is still weighing the alternative options. — Bridget DiCosmo
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Index
JURISDICTIONAL DETERMINATIONS
8th Circuit Appears To Back Bid For Review Of CWA
Jurisdiction Findings ..................................................... 3
Vitter, Industry Seek Supreme Court Review Of CWA
‘Jurisdiction’ Findings ................................................... 4
Advocates Urge Agencies To Improve Water
Jurisdiction Finding Process .......................................... 6
PERMITS
EAB Favors EPA’s Power Over ‘Satellite’ Sewers,
But Doubts Procedure ................................................... 7
NMFS Reverses CWA Permits’ ‘Jeopardy’ Finding,
Corps Plans New Rules ................................................. 8
EAB Dismisses Challenge To Second SDWA Permit
Issued For CCS Project ................................................. 9
Congress Renews Small Vessel Exemption From
CWA Permit Requirements .......................................... 11
CLEAN WATER ACT JURISDICTION
Stakeholders Back EPA FY15 Bill’s Rider Scrapping
CWA ‘Interpretive’ Rule .............................................. 11
LITIGATION
Judges Conflicted On Setting Precedent In Suit Over
CWA Petition To EPA .................................................. 13
Advocates Fight EPA, Industry Opposition To Cooling
Water Suit Transfer ...................................................... 14
STORMWATER
Industry Eyes Permit Changes After EPA Withdraws
Stormwater ‘Flow’ Guide ............................................ 15
TOXICS
EPA’s Plan To Study Dioxins In Refineries’ Effluent
Draws Industry Challenge ........................................... 16
Agency Advisors Urge EPA To Strengthen Draft Fish
Consumption Guide ..................................................... 17
Advisors Praise Developing CompTox Approach But
Seek More Validation .................................................. 18
WATER QUALITY TRADING
EPA Says State, Not Federal, Rules Needed To
Encourage Water Trading ............................................ 20
INFRASTRUCTURE
Environmentalists Eyeing Cases To Challenge Water
Utility Rate Structures ................................................. 21
GOP Senators Weigh ‘Flexibility’ Legislation To Aid
Water Infrastructure ..................................................... 22
McCarthy Touts Innovative Funding To Preserve
Drinking Water Protection ........................................... 24
BUDGET
EPA’s FY15 Staffing Reductions Could Create
Hurdle For Agency’s Agenda ...................................... 25
PERMIT VETO
Judge Orders EPA To Halt All Pebble Mine Veto
Activity Under Injunction ............................................ 26
Mining Company Again Appeals EPA’s Veto Of
Authorized CWA Permits ............................................ 26
CHEMICAL SECURITY
Senate Democrats Urge EPA To Accelerate New
Rules For Facility Security .......................................... 27
EPA Denies Industry Push For Greater Role In
RMP Facility Safety Updates ...................................... 29
CYANOTOXINS
Toledo Mayor Seeks Executive Order To Address
Great Lakes Cyanotoxins............................................. 30
Senate Approves Bill Requiring EPA To Craft Algal
Blooms Health Advisory ............................................. 31
HYDRAULIC FRACTURING
Industry Queries Fate Of TSCA Fracking Rules As
EPA Weighs ‘Next Steps’ ............................................ 32
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