Water Policy Report
Inside EPA's Water Policy Report an exclusive biweekly report on federal water quality programs and policies Vol. 23, No. 26 — December 29, 2014 EPA Weighs New Policy On Agriculture CWA Permit Needs EPA Administrator Gina McCarthy says the agency is working with the Department of Agriculture (USDA) on next steps for a policy to clarify “normal” farming practices exempt from Clean Water Act (CWA) permits, after Congress forced the administration to withdraw its controversial “interpretive” rule aimed at clarifying the exemptions. But the replacement measure might not take the form of another interpretive rule, McCarthy told reporters at a water quality trading event held with USDA in Fairfax, VA. “We haven’t even had that discussion,” she said. Agriculture, Page 3. Industry Groups Object To EPA Plan To Set Strontium Drinking Water Limit Industry groups are asking EPA to reconsider its preliminary decision to set an enforceable drinking water limit for strontium, with drinking water utilities arguing the element is not being detected at levels of concern and manufacturers charging the agency failed to properly analyze the energy costs of compliance, including inconsistently applying a social cost of carbon analysis. EPA’s October preliminary decision is only the second time it has issued such a finding since 1996. But American Water says the agency should defer making a final decision until a clearer analysis of health effects data is available. Drinking Water, Page 4. Long-Awaited EPA Review Of Selenium Study Could Inform New Criteria EPA has released a long-awaited peer review of its analysis of a selenium toxicity study conducted for industry, which appears to generally support the agency’s findings and is expected to inform the agency’s effort to revise its decades-old water quality criteria for the pollutant, possibly allowing some states to move ahead with sitespecific standards. But some peer reviewers are raising questions on some of the data used in the study, including that it may be difficult to verify the findings, echoing criticisms raised by the U.S. Fish and Wildlife Service in an earlier review. Water Quality Standards, Page 6. EPA Set To Release Planning Tool For State Water Quality Trading Programs EPA is preparing an online tool that will act as a “roadmap” for states to develop water quality trading programs, promising that use of the tool could speed approval of state initiatives by federal regulators and that it could support frameworks for interstate trading, although it stops short of the federal trading guidance many stakeholders have sought. Agency Administrator Gina McCarthy said Dec. 16 EPA plans to release the tool in January to help state regulators craft trading markets and verification strategies. Water Quality Trading, Page 9. Cooling Water Suit Transferred The U.S. Court of Appeals for the 4th Circuit has granted environmentalists’ request to transfer to the 2nd Circuit litigation over EPA’s Clean Water Act cooling water intake rule over objections from EPA and industry, an early win for advocates who say prior 2nd Circuit rulings mean the court may be more favorable to their suit. Page 10. Stormwater Agreement Defended A Chicago water district is defending a district court’s approval of a consent decree with EPA intended to reduce sewer overflows, arguing in recent appellate filings that despite environmentalists’ claims in challenging the pact, the Clean Water Act does not require the elimination of all combined sewer overflows (CSOs). The district says it is adequately committed to controlling CSOs. Page 12. CEQ Finalizes Water Guidance The White House Council on Environmental Quality (CEQ) has finalized long-awaited guidance requiring EPA and other agencies to weigh adverse impacts from climate change and the use of “green” water infrastructure when planning water resources projects, rejecting concerns that the guide may give bias to certain infrastructure projects. Page 13. Index AGRICULTURE EPA Weighs Farming CWA Permit Policy After ‘Interpretive’ Rule Scrapped ......................................... 3 Farm Bureau Criticizes EPA’s Argument For Releasing CAFO Information ........................................................ 4 DRINKING WATER Industry Groups Object To EPA Plan To Set Strontium Drinking Water Limit..................................................... 4 WATER QUALITY STANDARDS Long-Awaited EPA Review Of Selenium Study Could Inform New Criteria ...................................................... 6 Advocates Tout Legal Pact Enforcing EPA Numeric Conductivity Limit ......................................................... 7 Settlement Talks Over Idaho Water Quality Standards ESA Consultations Fail .................................................. 8 Environmentalists Criticize EPA Response To IG Hypoxia Report ............................................................. 8 WATER QUALITY TRADING EPA Set To Release Planning Tool For State Water Quality Trading Programs ............................................. 9 LITIGATION Appellate Court Transfers Cooling Water Suit Over EPA, Industry Objections ............................................ 10 Industry Ramps Up Claim Of Harm From EPA Preemptive Pebble Mine Veto ..................................... 11 STORMWATER Chicago Water District Urges Appellate Court To Sustain Stormwater Pact .............................................. 12 Environmentalists’ Suit Seeks Stricter EPA Municipal Stormwater Rules ......................................................... 13 CLIMATE CHANGE CEQ Finalizes EPA, Other Agencies’ Water Resources Planning Guide ........................................... 13 New Climate Change Data Sets Could Aid Understanding Of Water Issues ................................... 14 OIL SPILL RESPONSE White House Completes Review Of Proposed Revisions To Oil Spill Rule ......................................... 15 NONPOINT SOURCES Despite EPA Encouragement, SRFs Rarely Used For Nonpoint Projects ........................................................ 16 TOXICS Industry Queries Fate Of TSCA Fracking Rules As EPA Weighs ‘Next Steps’ ............................................ 17 EPA Extends Comment Deadline On Dental Amalgam Effluent Regulation ..................................... 18 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: 4th Circuit Transfers Cooling Water Rule Suit To 2nd Circuit AFBF Criticizes EPA’s Argument For Releasing CAFO Information CEQ Finalizes Guidelines For Weighing Water Resource Investments Chicago Water District Urges Appellate Court To Sustain Stormwater Pact Consent Decree Proposes Timelines For Mines To Meet Conductivity Limit EPA Extends Comment Deadline On Dental Amalgam Water Rule EPA Reiterates Vow To Reduce Gulf Of Mexico Hypoxic Zone EPA Releases Selenium Toxicity Documents Supporting Site-Specific Limits Industries Object To EPA CCL3 Decision To Regulate Strontium Industry Renews Claim Of ‘Harm’ From Proposed Pebble Mine Veto Settlement Fails In Idaho Suit Over ESA Consultation Suit Claims EPA Failed To Meet Duty To Strengthen Stormwater Standards 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 29, 2014 Agriculture EPA Weighs Farming CWA Permit Policy After ‘Interpretive’ Rule Scrapped EPA Administrator Gina McCarthy says the agency is working with the Department of Agriculture (USDA) on next steps for a policy to clarify “normal” farming practices exempt from Clean Water Act (CWA) permits, after Congress forced the administration to withdraw its controversial “interpretive” rule aimed at clarifying the exemptions. But the replacement measure might not take the form of another interpretive rule, McCarthy told reporters at a water quality trading event held with USDA in Fairfax, VA. “We haven’t even had that discussion,” she said. “We’re perfectly happy to go back and work with USDA to provide certainty to the regulated community. . . . We’ll work on it in a form that both us and the agriculture community think is of value to both of us,” McCarthy said when asked about the impact of Congress’ directive for the administration to scrap the interpretive rule. Legislators inserted language into the fiscal year 2015 funding omnibus — which President Obama signed into law Dec. 16 — forcing the agencies to withdraw the March 25 rule (Water Policy Report, Dec. 15). The regulation exempted 56 agricultural conservation activities, such as brush management and fencing in crops, from CWA section 404 permit requirements. The CWA specifies that “normal farming” measures are not subject to dredge-and-fill permits, but does not define such practices, leaving regulators to set out a definition through rulemaking. But critics urged the agencies to scrap the interpretive rule, saying that it created legal confusion, including the implication that practices outside the 56 it enumerated are not “normal” and thus require permits. “We heard, as soon as the interpretive rule went out, that people had concerns about it. They were interpreting the interpretive rule in a way we didn’t expect. So we’re not unhappy with what went through the legislature,” McCarthy told reporters in reference to the provision in the FY15 funding legislation. She added that while EPA has not decided how to replace the rule, “Those exemptions are going to be preserved, and we’re going to continue to work with the farming community to provide them a level of certainty on what is ‘normal farming practices,’ so they can be aware of the exemptions themselves, but also make sure they are carrying out their activities in a way that will be fully recognized by the agency,” she said. Under section 404 of the CWA, the U.S. Army Corps of Engineers 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 was legally flawed, and industry argued that it appeared to place agriculture officials into a CWA enforcement role, while environmentalists said the list included practices never intended to be exempted under the water law, leading stakeholders on all sides to back the omnibus provision forcing its withdrawal. In lieu of the interpretive rule, the omnibus FY15 bill directs EPA to enforce the CWA exemption from permit requirements for normal farming practices and for farm ponds and irrigation or drainage ditches. McCarthy said at the Fairfax event that this provision would not force a substantive change in EPA or Corps permit policies. “I think the Corps, EPA, and certainly the White House reads that as just adding another layer of protection on the exemptions that currently exist. So that is how we interpret this, and that is how it’s going to be carried out,” she said. McCarthy added that withdrawing the interpretive rule is not expected to interfere with EPA and the Corps’ release of a final, broader rule to clarify which waterbodies are “Waters of the U.S.” subject to CWA requirements, which the interpretive rule was designed to supplement. “We’ll just make sure that we continue to work together to get the ‘Waters of the U.S.’ rule out in final form, so we clarify this as much as we can,” she said. 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. While industry and Republican legislators have sought to block the proposed rule, arguing that it oversteps the agencies’ statutory authority, the omnibus only targeted the jurisdiction rule. The decision to avoid such a prohibition could potentially weaken Republicans’ leverage to block the regulation through future measures, as it is slated to be finalized in April next year, months before Congress works on a FY16 bill that could otherwise have been a vehicle for such a prohibition. “We’re still looking at spring, and we’ll work through that. . . . We have a lot of work to do, but we’re certain we can get it done in a timely way,” McCarthy said at the Fairfax event. However, industry has signaled that if EPA and the Corps do release the rule on time, it could face additional legal challenges where critics would argue that regulators allowed inadequate time to consider the large volume of public comments that they received. — David LaRoss WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 3 Agriculture Farm Bureau Criticizes EPA’s Argument For Releasing CAFO Information Agriculture industry groups are urging a federal court to enjoin EPA from further releasing identifying information from concentrated animal feeding operations (CAFOs), saying the agency’s recent proposal to redact identical information for unpermitted CAFOs undermines its legal argument that the information should not be withheld. In a Dec. 15 notice of supplemental authority to the U.S. District Court for the District of Minnesota, attorneys for the American Farm Bureau Federation (AFBF) and the National Pork Producers Council say the agency’s recently proposed electronic reporting rule for National Pollutant Discharge Elimination System permits “stands in sharp contrast” to the agency’s legal argument that the information under scrutiny represents a substantial public interest and need not be withheld under Freedom of Information Act (FOIA) exemptions. The electronic reporting rule proposal includes a provision that would redact identifying operational information for CAFOs on the Enforcement and Compliance History Online (ECHO) website, but in earlier briefing in the FOIA case AFBF, et al. v. EPA, et al., EPA has argued that public interest outweighs privacy concerns of releasing the information, much of which was already made public by the CAFOs themselves (Water Policy Report, Nov. 3). “That contrast further illustrates that EPA is acting arbitrarily and capriciously by releasing any personal information that is either available on state websites or ‘required to be public under federal and state laws’—even though that information belongs to many individuals who are operating unpermitted CAFOs and [animal feeding operations] AFOs,” AFBF says. Relevant documents are available on InsideEPA.com. See page 2 for details. But EPA in a Dec. 16 response letter to the court says there is no conflict between initially redacting some identifying information and potentially releasing that information through a FOIA request after analyzing whether the information could be released, as it did in the pending case. “In conducting this evaluation, EPA would consider all relevant factors, including the public availability of the information. If the Agency determines that a substantial privacy interest exists in the masked information under the proposed rule, the Agency would engage in the balancing test required by Exemption 6. Such an analysis is entirely consistent with EPA’s actions under review in this case,” EPA says. The litigation stems from FOIA requests made in 2012 by Earthjustice, Pew Charitable Trusts and the Natural Resources Defense Council regarding contact information and the locations of CAFOs. The agency originally released the requested information but later determined that some names of CAFO owners should be withheld under FOIA Exemption 6, at which time EPA requested the environmental groups return the information discs and made a new release withholding the exempted data. AFBF then sued the agency July 5, 2013, arguing that all the requested information should have been withheld under Exemption 6 and urging the court to enjoin EPA from releasing any more operational information for CAFOs (Water Policy Report, July 15, 2013). The environmental groups sought the information to learn more about EPA’s 2012 decision to abandon a proposed Clean Water Act (CWA) rule that would have required CAFOs to gather and report identifying and operating information. The groups are currently challenging the agency’s decision to drop the rule and are intervenors in the FOIA case. Environmentalists say the information is critical to the public interest in civil enforcement of the CWA, with one environmentalist saying CAFOs’ substantial contribution to water pollution across the country outweighs the privacy interests of farmers and ranchers (Water Policy Report, Aug. 25). The court is reviewing opposing summary judgment motions from industry, EPA and environmentalists after a Dec. 17 motion hearing with a court-only settlement conference scheduled for Jan. 29. Drinking Water Industry Groups Object To EPA Plan To Set Strontium Drinking Water Limit Industry groups are asking EPA to reconsider its preliminary decision to set an enforceable drinking water limit for strontium, with drinking water utilities arguing the element is not being detected at levels of concern and manufacturers charging the agency failed to properly analyze the energy costs of compliance, including inconsistently applying a social cost of carbon analysis. EPA in October made a preliminary determination that drinking water regulation is necessary for the chemical strontium — only the second time it has issued such a finding since 1996 — and at the same time found no risk warranting regulation for the contaminants dimethoate, terbufos, terbufos sulfone and 1,3-dinitrobenzene (Water Policy Report, Oct. 20). The agency took comment on its preliminary determinations for the third contaminant candidate list (CCL3) until Dec. 20. Under the Safe Drinking Water Act (SDWA), EPA is required to make regulatory determinations every five years for 4 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Drinking Water at least five contaminants on the most recent CCL. But other than its 2011 decision to set a maximum contaminant level for perchlorate, the agency’s prior determinations since the 1996 SDWA amendments have all been that no further regulation was necessary for a total of 20 contaminants. For the agency to determine regulation is necessary, SDWA requires EPA to demonstrate the contaminant may have an adverse health effect; is known to occur in public water systems with a frequency and at levels of public health concern, and that regulation presents a meaningful opportunity for health risk reduction. EPA in its preliminary determination said the health concern with strontium isdue to its chemical similarity to calcium, which “allows it to exchange imperfectly for calcium in a variety of biological processes; the most important of these is the substitution of calcium in bone, affecting skeletal development.” And the agency said 99.1 percent of public water systems tested had detectable concentrations of strontium, with 14.3 percent of systems detecting strontium at more than 750 micrograms per liter (ug/L) and 7 percent of systems detecting strontium at levels above the agency’s health reference level (HRL) of 1,500 ug/L. HRLs are risk-derived concentrations against which to evaluate the occurrence data to determine if contaminants occur at levels of potential public health concern. The occurrence data show that public water systems with strontium at concentrations greater than the HRL and greater than one-half the HRL occur “While we recognize that in 26 states and 34 states, respectively, EPA says. strontium is being But American Water, the nation’s largest investor-owned water and detected in numerous wastewater utility company, says in Dec. 18 comments that while it supported systems as part of the the agency’s negative determinations, EPA should reconsider its positive [Unregulated regulatory determination on strontium — a naturally occurring element used in Contaminant Monitoring fireworks and steel production, among other applications. Relevant documents Rule] monitoring, are available on InsideEPA.com. See page 2 for details. American Water does not Specifically, EPA should “defer making a decision until a clearer and more agree that the results complete analysis of health effects data is available and a more transparent being detected are analysis whether strontium does or does not occur with a frequency and at necessarily at levels of levels of public health concern in public water systems,” American Water says. concern due to “While we recognize that strontium is being detected in numerous systems uncertainty in the as part of the [Unregulated Contaminant Monitoring Rule] monitoring, Reference Dose (RfD).” American Water does not agree that the results being detected are necessarily — American Water at levels of concern due to uncertainty in the Reference Dose (RfD),” American Water writes in its comments. EPA’s Integrated Risk Information System program set an RfD, or maximum amount that can be ingested over a lifetime without adverse health effects, for strontium in 1992. This RfD, based on a 1961 study known as the Storey study, is 0.6 milligrams per kilogram per day (mg/kg/day), and is derived from a no observed adverse effect level — one of three ways EPA derives an RfD. But EPA’s Office of Water has also calculated a different RfD of 0.3 mg/kg/day based on a 1985 study, known as Marie et al., and derived from a 95 percent lower confidence bound on a benchmark dose. And the agency has requested comment on this revised RfD calculation. American Water, in its comments, suggests EPA improve its analysis of the RfD calculation by performing human epidemiology studies in water systems with known higher levels of strontium; providing stronger justification for its use of Uncertainty Factors (UFs) in calculating the RfD, especially the use of a UF of 10 for database uncertainty where the agency previously used a UF of 3 for this, as well as stronger justification for how the UFs were appropriately adjusted for the fact that the RfD calculation includes an Age Specific Adjustment component, and providing stronger justification for using a Relative Source Contribution of 20 percent. The Industrial Energy Consumers of America (IECA), in Dec. 15 comments, also calls on EPA to reconsider its determination on strontium, but cite concerns with what the group alleges is the agency’s failure to address “the social benefits and the social costs in its analysis for the determination.” “Specifically, in its analysis for the determination, EPA failed to consider the additional energy usage and its externalities in this rulemaking,” they add. IECA, which represents a wide range of manufacturing industries, says “EPA is not alone in its inconsistent application of [social cost of carbon (SCC)] as a potential regulatory cost,” noting that few other agencies have acknowledged any potential energy/SCC externality in their rulemakings.” But if the agency does use SCC in its analysis, then both the potential benefits and costs would need to be considered, in order to fit with Circular A-4’s requirements, IECA says. White House Office of Management and Budget Circular A-4 outlines how federal agencies should conduct regulatory analyses. WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 5 Water Quality Standards Long-Awaited EPA Review Of Selenium Study Could Inform New Criteria EPA has released a long-awaited peer review of its analysis of a selenium toxicity study conducted for industry, which appears to generally support the agency’s findings and is expected to inform the agency’s effort to revise its decades-old water quality criteria for the pollutant, possibly allowing some states to move ahead with site-specific standards. Some peer reviewers are raising questions on some of the data used in the study, including that its use of hatchery fish as opposed to wild-caught makes it difficult to verify the findings and that the data may be too site-specific for inclusion in national criteria — concerns that echo criticisms raised by the U.S. Fish and Wildlife Service (FWS) in an earlier review. “The hatchery fish presumably differed from wild fish in one or more respects, such as genotype, size/age, nutrition, and other environmental influences — factors that plausibly could have affected deformity rates,” one peer reviewer wrote in the recently released document, which reviews EPA’s “Analysis of the Brown Trout Selenium Toxicity Study Presented by Formation Environmental and Reviewed by U.S. Fish and Wildlife Service.” And a second member of the panel tasked with reviewing the document notes that while they would be hesitant to rely too heavily on the study data in development of national criteria given there was no appropriate control in the study because of the use of hatchery fish, they also understand that there is some usable data in the study and that “EPA should attempt to make the best use of this study as they develop a [selenium] criterion.” Relevant documents are available on InsideEPA.com. See page 2 for details. The EPA analysis and accompanying peer review, both of which were quietly released in October to the regulatory docket where the agency took comment on a draft approach to new water quality criteria, concerns a reproductive toxicity study conducted by Formation Environmental for J.R. Simplot Company. The company had asked regulators to grant a site-specific waiver from selenium limits for a phosphate mine it operates in Idaho, where trout have been found with birth and other developmental deformities, using the study as the basis of the site-specific values. The study supported a softening of the EPA criteria and relaxing of state water quality standards in favor of site-specific approaches to selenium limits. But the FWS review, requested by Sen. Barbara Boxer (D-CA), found the company’s report lacked control data for interpreting the results of toxicity testing, used flawed exposure modeling, relied on an overly low and “environmentally unrealistic” analysis of larval deformity rates and lacked any wildlife risk analysis despite the Clean Water Act (CWA) mandate for protection of wildlife in addition to fish and shellfish. In EPA’s 2014 addendum to the review, the agency says it calculated a recommended 10 percent effect concentration, or EC10, of 15.91 milligrams per kilogram of dry weigh (mg/kg/dw), based on the worst-case scenario for the deformity endpoint, which was the most conservative EC10 among the six scenarios that were considered. EPA says it used this value in crafting its chronic concentration limit for fish eggs or ovaries in its draft national criteria. The FWS review suggested a more conservative EC10 of 6.5 mg/kg/dw for guarding against deformities, but EPA determined it would have difficulty defending such a limit given that it was based on a sparse dataset. However, the agency says the FWS review “has raised important issues, not previously brought to the fore, about the brown trout study,” and that EPA’s new analysis examines those issues by calculating the EC10 “in 80 different ways” using a range of most optimistic to worst case scenarios about the response in samples with limited datasets. “Given the issues raised by the Review, we believe that this assessment’s comprehensive examination provides a defensible basis for a brown trout EC10 that can be used, together with EC10s for other species, as part of the derivation of a national criterion.” Under the CWA, EPA adopts risk-based water quality criteria that set a safe concentration level for contaminants in water to protect human health and aquatic life. States then craft their own enforceable water quality standards and other regulatory limits based on the criteria, though regulators can, with EPA approval, modify the criteria or adopt other measures using scientifically defensible methods. EPA’s current selenium criteria, adopted in 1987, sets traditional water column concentration values of 5 micrograms per liter (ug/L) for chronic exposures and 20 ug/L for acute exposures. While environmentalists charge the values are too weak, industry groups have struggled to attain the limits in discharge permits based on the criteria, resulting in a push for site-specific limits as in Simplot’s case. This had led to scores of citizen suits over discharges from coal mining, coal ash ponds and other sources of the substance. In the absence of revised national criteria, many states have pursued their own state-specific or site-specific values for selenium based on fish tissue concentrations. Idaho Department of Environmental Quality (DEQ) in 2006 began considering the site-specific selenium criterion for certain waters in southeast Idaho but the effort has remained stalled pending the EPA review of the brown trout toxicity data. The state notes that EPA’s water column exposure criterion may not be very useful, given that it is “highly unlikely that Idaho will have sufficient daily selenium data to make use of it.” And Kentucky recently set a chronic standard of 8 micrograms per gram dry weight (ug/g/dw) for whole body fish tissue, or 19.3 ug/g/dw for egg or ovary tissue, but environmentalists have sued over the approach, saying that fish tissue 6 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Water Quality Standards values are difficult to implement in permits and other regulatory requirements. In 2004, the Bush EPA agency proposed a similar approach, but it was eventually shelved due to criticisms from environmentalists and the FWS. EPA’s new draft criteria includes a 15.2 milligram per kilogram (mg/kg) concentration limit for fish eggs or ovaries — which would override any other standard in EPA’s draft and two other tissue-based limits, 8.1 mg/kg “whole body” of a fish and 11.8 mg/kg for the muscle tissue. Those values would override the draft water column values of 1.3 micrograms per liter (ug/L) over a 30-day average for standing waters and a 4.8 ug/L limit for flowing waters. The approach aims to address environmentalist and FWS concerns about fish tissue-based approaches being difficult to enforce by also supplying water column limits, but FWS has again raised concerns about the proposal, saying in comments filed in July that EPA’s plan may not adequately protect listed fish and non-fish species. In July 29 comments on the draft criteria, Idaho DEQ says that EPA’s water column exposure criterion may not be very useful, given that it is “highly unlikely that Idaho will have sufficient daily selenium data to make use of it.” The comments urged the agency to release the peer review and analysis documents as soon as possible, saying its effort to develop site-specific criteria had stalled largely “because of EPA’s review of brown trout toxicity data produced by Formation Environmental on behalf of Simplot Corporation and whose release became tied up in the national criterion document just now being reviewed.” — Bridget DiCosmo Advocates Tout Legal Pact Enforcing EPA Numeric Conductivity Limit Environmentalists are touting a proposed consent decree they have reached with a coal company that would require the company to comply with EPA’s controversial numeric limit for conductivity — a measure of waters’ ionic pollution linked to mining and other industrial activities — with the use of precedent-setting control technology. Under the proposed settlement announced Dec. 15, Elk Run Coal Company and Alex Energy have agreed to take steps to achieve a passing water quality score for receiving streams at four of their West Virginia mining operations by Aug. 1, 2019. The agreement would require meeting the numeric limit, or by installing a treatment system design to meet the limit, unless the state were to adopt its own conductivity values, according to the legal pact. The proposed settlement is available on InsideEPA.com. See page 2 for details. The proposed consent decree, filed in the U.S. District Court for the Southern District of West Virginia at Huntington. would resolve the remedy phase of a suit, Ohio Valley Environmental Coalition (OVEC), et al. v. Elk Run Coal Company, et al. In the OVEC litigation, the district court in a landmark ruling acknowledged harms to water quality and aquatic life from excessive levels of conductivity, a pollutant for which environmentalists have sought numeric discharge limits in dozens of citizens suits across the Appalachian region. Industry, appealing the initial ruling to the U.S. Court of Appeals for the 4th Circuit, argued that discharges from its sediment ponds were in compliance with the effluent limits for the pollutants regulated by West Virginia Department of Environmental Protection under its delegated authority to issue federal discharge permits. However, the 4th Circuit rejected the appeal in October (Water Policy Report, Nov. 3). The appeal was discretionary because the remedy phase was still proceeding at the district court level. The proposed agreement could be significant given that EPA’s numeric limit of 300 microsiemens per centimeter (uS/ cm) of conductivity as the level at which operators would be required to adopt best management practices to protect aquatic life was earlier this year upheld by an appellate court but with limited application. The conductivity limit was the touchstone of EPA’s guidance, “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act (CWA), National Environmental Policy Act, and the Environmental Justice Executive Order.” A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit in July upheld the guidance in National Mining Association, et al. v. Gina McCarthy, et al., but limited its application, saying state permit writers are “free to ignore” the guide’s advice when crafting state discharge permits and the agency may not use the guide as a basis for enforcement. Absent formal EPA conductivity limits, environmentalists have repeatedly targeted discharge permits for mining operations in Appalachian states, in particular seeking strict numeric limits for conductivity, selenium and other pollutants; filing site-specific permit challenges in district courts challenging permits that fail to set numeric limits for conductivity and other pollutants. “Although today’s settlement agreement allows the company to attempt to meet CWA protections by improving the health of the harmed streams, it also includes firm trigger mechanisms that will require the installation and operation of pollution treatment technology to reduce conductivity pollution down to the level the Environmental Protection Agency has determined is safe for aquatic life: 300 µS/cm.,” Sierra Club, OVEC and other groups said in a Dec. 15 press release touting the consent decree. WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 7 Water Quality Standards Settlement Talks Over Idaho Water Quality Standards ESA Consultations Fail Environmentalists and EPA have failed to reach a settlement in a case seeking to resolve nearly two decades of delay in consulting with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) over Idaho’s revised water quality standards, and are asking a federal district court to allow the litigation to move forward in January. The U.S. District Court for the District of Idaho has repeatedly stayed the case, Northwest Environmental Advocates (NWEA), et al. v. NMFS, et al., as environmentalists and EPA continued negotiations over when and how the agency would consult with the federal wildlife services over potential endangered species implications related to the state’s revised water quality standards. But in a Dec. 15 joint status update, the parties say that negotiations have now “concluded due to the parties’ inability to reach any agreement to resolve the claims in this case,” adding that additional time is necessary to develop a proposed schedule for trial. The status update is available on InsideEPA.com. See page 2 for details. “The parties have agreed to confer further regarding a schedule for further proceedings, but due to the timing of the decision to proceed to litigation, have been unable to develop a proposed schedule in time for this Joint Status Report. As such, the parties hereby request that the Court continue the stay until January 15, 2015, at which time the parties will file a Joint Status Report setting forth their proposal(s) for further proceedings,” according to the Dec. 15 filing. NWEA last year sued EPA, NMFS and FWS for failing to conduct Endangered Species Act (ESA) consultations over Idaho’s water quality standards for the past 17 years. Under the Clean Water Act, states are required to re-evaluate water quality standards every three years. The parties had requested the court to extend the original stay of litigation until April before informing the court that negotiations had ended (Water Policy Report, July 14). NMFS has already issued a biological opinion (BiOp) that found the state’s water quality standards for selenium, cyanide, arsenic, mercury and copper as well as its water hardness floor were likely to adversely affect steelhead trout, Chinook salmon and Sockeye salmon. The May 7 finding applies only to about one-quarter of the state’s land area where those species live and spawn. The NMFS BiOp fulfills certain requests for relief in NWEA’s complaint, but the environmental organization still wants EPA to disapprove Idaho’s objectionable water quality standards and begin an ESA consultation for antimony, among other requests. An environmentalist source close to the case told Inside EPA in July that EPA is expected to withhold its disapproval of Idaho’s standards and issuance of reasonable and prudent alternatives until FWS issues its own BiOp to avoid any contradictions. Because salmon are anadromous, meaning they migrate from saltwater to spawn in freshwater, both NMFS and FWS are responsible for addressing potential ESA concerns. But it is likely that the outcome of the litigation and BiOps will be stricter discharge limits in future National Pollutant Discharge Elimination System (NPDES) permits the state will issue, the environmentalist source says. Idaho’s legislature in March authorized the state to seek delegated authority for issuing NDPES permits, but the state does not plan to formally apply for primacy until September 2016, sources say. Environmentalists Criticize EPA Response To IG Hypoxia Report Environmentalists are criticizing EPA’s plan to reduce the Connecticut-sized hypoxic zone in the Gulf of Mexico, calling the agency’s latest response to an Inspector General (IG) investigation “pallid” and “nitpicking.” Earlier this year, EPA pledged to work with states and other federal agencies to improve monitoring of nutrient reduction efforts in the Mississippi-Atchafalaya River Basin, which drains into the Gulf of Mexico, and outlined a number of corrective actions to address recommendations in a draft version of an IG report (Water Policy Report, Sept. 8). Now the agency has commented on the final version of the report, with acting EPA water chief Ken Kopocis saying in a Nov. 6 memorandum that the Office of Water concurs with the final report’s recommendations but outlining a number of edits to correct programmatic information. These include outlining a number of actions EPA is taking with its state and federal partners to reduce excess nitrogen and phosphorus in surface waters, which are a cause of the hypoxic area, and updating the projected timeframe for some state actions. “EPA’ s actions are not solely limited to working with states to develop and implement nutrient reduction frameworks/strategies, as the report implies,” Kopocis writes. Additional actions include providing states with technical guidance to develop water quality criteria, supporting states as they engage in a collaborative approach, providing information to the public on nutrient pollution, and conducting and/or supporting research on nutrient pollution-related topics, EPA says. Relevant documents are available on InsideEPA.com. See page 2 for details. The IG in a Dec. 4 response accepts EPA’s proposed updates. But Ann Alexander, a senior attorney for the Natural Resources Defense Council (NRDC), writes in a Dec. 17 blog 8 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Water Quality Standards post that EPA’s corrections to the final report miss the point of the IG’s recommendations. “The Agency’s pallid, nitpicking response serves only to bolster the Inspector General’s conclusion that relying on the states to solve the problem is not working; and its strong inference that the only way to get the job done is for EPA to bite the bullet and establish some hard numbers—numeric criteria, in Clean Water Act parlance—limiting algae-fueling nitrogen and phosphorus pollution. Indeed, in the one instance where EPA purports to offer a substantive factual update, it ends up providing more hard evidence supporting the need for criteria,” Alexander says. Alexander goes on to say that Wisconsin’s success in achieving 45 percent of phosphorus reductions to the gulf resulted from the state’s numeric nutrient limits and that EPA should pressure other states to follow suit. “As we, and so many others, have been saying relentlessly, numeric nutrient criteria work. They are hard limits on the levels of nutrient pollution that can exist in healthy waters, providing a benchmark for measuring the nutrient problem, and a basis for issuing permits and establishing plans to clean it up. And now, EPA—somewhat inadvertently, it seems— has supplied yet more proof of that,” Alexander says. NRDC is one of several environmental groups who are seeking to force EPA to set numeric nutrient criteria for the Mississippi River Basin. Appellate judges at recent oral arguments appeared conflicted on whether to force EPA to respond substantively to environmentalists’ petition for EPA to develop the criteria (Water Policy Report, Dec. 15). The Office of Inspector General (OIG) acknowledges EPA’s efforts to reduce nutrient pollution to the Gulf of Mexico, saying its approach to rely on state-led efforts “has some promising aspects that may result in positive effects to local waterways,” Genevieve Soule, an evaluator in OIG’s Office of Program Evaluation, says in an OIG podcast, cautioning that “the states’ focus when developing their strategies is on improving local water quality.” “While an emphasis on local waters is vital for achieving the nation’s clean water goals, there is no assurance that individual state successes will also produce the nutrient reductions needed to reduce the Gulf of Mexico hypoxic zone,” Soule says. “Finally, the EPA regional staff and state managers we interviewed expressed concern about their ability to monitor water quality and the progress of the strategies. Yet, without water quality monitoring data, the EPA will be unable to determine the impact of state nutrient reduction strategies on reaching basin-wide nutrient reduction goals.” Water Quality Trading EPA Set To Release Planning Tool For State Water Quality Trading Programs EPA is preparing an online tool that will act as a “roadmap” for states to develop water quality trading programs, promising that use of the tool could speed approval of state initiatives by federal regulators and that it could support frameworks for interstate trading, although it stops short of the federal trading guidance many stakeholders have sought. Agency Administrator Gina McCarthy said during a joint EPA and Department of Agriculture (USDA) event Dec. 16 in Fairfax, VA, where the agencies highlighted Virginia’s nutrient trading regime, that the tool will be released in January as a way to help state regulators craft trading markets and verification strategies, although it will not provide binding targets for the states to meet. “What this tool is doing is not providing a regulatory framework as much as it is providing a step-by-step [guide] on how you do this in order to make sure that it is solid enough that investors are going to invest, that there’s certainty there,” McCarthy said. Water quality trading allows entities with a Clean Water Act (CWA) discharge 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. McCarthy said at the Fairfax event that while EPA’s upcoming tool will not set specific requirements for state trading programs, it parallels Virginia’s process of developing and implementing its own trading program. “It’s a big signal elsewhere that if it worked here, and EPA liked it, send it somewhere else and EPA will like it there as well,” McCarthy said. McCarthy’s comments follow recent statement from EPA staff that the agency has no plans to develop a federal water quality trading rule and that any shortcomings in current trading efforts can best be addressed by stronger, clearer language in state-issued CWA permits In a statement released during the Dec. 16 event, EPA said the tool represents part of a joint memorandum of understanding between EPA and USDA to support trading, and that it will be followed by “a national conference in 2015 for stakeholders to share experiences and move forward with trading as a valuable tool for driving environmental improvement.” In response to questions after the event, McCarthy said that the tool could support interstate trading programs as well WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 9 Water Quality Trading as state-specific regimes, but cautioned that such programs would only be allowable in regions where waterbodies in multiple states flow into the same watershed — such as the Chesapeake Bay, which includes Virginia and many other Mid-Atlantic states. “The key is . . . that you need to make sure that those releases are in the same watershed as the credits you’re buying. So while it can be a large investment opportunity to go interstate, we need to make sure that the waters that would have been impacted by the additional phosphorus emissions — those emissions are offset in the same watershed,” McCarthy said. She added that interstate trading could be used to achieve the goals of the agency’s landmark total maximum daily load cleanup plan for the Chesapeake Bay, if the region chooses to pursue that option. The bay region is suited for interstate trading because it “is one big “While it can be a large watershed, so clearly you can have a program that is broader than Virginia, if investment opportunity to the end result is improvements in the Chesapeake, which is one very large go interstate, we need to watershed,” McCarthy said. make sure that the waters During the Bush administration, EPA pushed states in the Chesathat would have been peake Bay region to integrate their state-level nutrient trading programs into an interstate program. Those efforts were stalled, however, by uncertainty impacted by the about the continued availability of trading credits in the future. additional phosphorus It is unclear whether the release of the planning tool will be enough emissions — those to spur adoption of new trading programs in states that have been unwilling emissions are offset in or unable to develop them so far. Many water quality trading advocates have the same watershed.” long called for EPA to update and strengthen its 2003 policy on the subject, — EPA Administrator which generally encourages trading as long as the trade does not result in a Gina McCarthy 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, the advocates argue. 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 (Inside EPA, Dec. 19, 2013). 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. And they have been meeting with EPA officials to discuss how the agency can better encourage states and other entities to adopt trading programs. 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. Litigation Appellate Court Transfers Cooling Water Suit Over EPA, Industry Objections The U.S. Court of Appeals for the 4th Circuit has granted environmentalists’ request to transfer to the 2nd Circuit litigation over EPA’s Clean Water Act (CWA) cooling water intake rule over objections from EPA and industry, an early win for advocates who say prior 2nd Circuit rulings mean the court may be more favorable to their suit. “Upon consideration of submissions relative to the motion for transfer of these consolidated petitions . . . the court grants the motion and transfers these cases to the United States Court of Appeals for the Second Circuit,” says a Dec. 17 order from the 4th Circuit in Cooling Water Intake Structure Coalition, et al. v. EPA. The order is available on InsideEPA.com See page 2 for details. The order is signed by Circuit Judges Henry Franklin Floyd and Allyson Kay Duncan, and notes that Circuit Judge Paul V. Niemeyer opposes the transfer. None wrote an opinion explaining the reasoning behind their votes. In a brief supporting the transfer request, Riverkeeper and other environmentalist groups argued 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 (Water Policy Report, Dec. 15). 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 10 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Litigation 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. The court found for EPA in a 2010 ruling, upholding the rule’s provisions related to offshore facilities, while backing the agency’s request to remand the regulations covering existing factories — which EPA by that point had decided to include in the 2014 rule then under development. The 2nd Circuit has considered two cooling water 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 largely upheld the phase I rule in its 2004 ruling on Riverkeeper I. But the 2nd Circuit in Riverkeeper II delivered a ruling for environmentalists, remanding the phase II rule to EPA after finding that the CWA did not allow EPA to include off-site mitigation measures as a means of compliance with section 316(b) or to use cost-benefit analysis to determine the “best technology available” for the structures. The Supreme Court, in a 2009 decision in Entergy v. Riverkeeper, then overturned the bar on using a costbenefit analysis to set standards for intake structures, although it left the remainder of the 2nd Circuit’s remand untouched. EPA then developed the latest version of the rule to incorporate the remanded elements of the phase II and III rulemakings as well as new provisions into a single regulation. It released the unified rule in May, after which environmentalists and industry filed challenges in six different circuit courts, which were consolidated and randomly assigned to the 4th Circuit under federal appellate procedures. 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. EPA and industry groups argued in briefs opposing the transfer that the version of the rule is so different from the earlier versions, and incorporates both new regulatory mandates and some aspects of the phase III rule, that it can be considered separately from the 2nd Circuit cases. According to the environmentalist, the 4th Circuit’s order is not appealable, meaning litigation is now certain to proceed in the 2nd Circuit. The next milestone in the case is the Dec. 29 deadline for new parties to join the suit, after which EPA will move to submit a factual record and the court will decide on a briefing schedule. — David LaRoss Industry Ramps Up Claim Of Harm From EPA Preemptive Pebble Mine Veto The mining sector is reiterating its claim that EPA’s consideration of a novel preemptive Clean Water Act (CWA) veto of the controversial Pebble Mine is a “final action” subject to suit, arguing that the agency’s proposal for a veto is creating ongoing legal consequences for the mine developer even though EPA has yet to take final action. In a Dec. 9 brief filed with the U.S. Court of Appeals for the 9th Circuit, Pebble Limited Partnership (PLP) — developer of the Pebble Mine planned near Bristol Bay, AK — and other mining companies seek to rebut EPA’s claims that its decision to investigate a veto did not “alter rights and obligations” or carry “legal consequences.” The issue of legal consequences is a crucial test for determining whether an agency action can be reviewed in court. The brief is available on InsideEPA.com. See page 2 for details. PLP and its allies reiterate in their new brief that “legal consequences flowed immediately” from a February 2014 letter in which EPA Region 9 announced that it would consider a veto, because the ongoing veto process makes it nearly impossible for the company to obtain a CWA section 404 permit from the Army Corps of Engineers. “The Corps is without authority to issue a permit for as long as EPA’s veto proceeding remains pending. Thus, the February 2014 letter is not a tentative notice or recommendation. Legal consequences flowed immediately from that letter — the Corps cannot disregard the prohibition on its permitting authority and issue a permit for the Pebble Project,” the brief says. Industry in the case, PLP, et al., v. EPA, et al., is seeking to overturn District Judge H. Russel Holland’s ruling that a challenge to the veto process is premature because the action is not final and could be abandoned. PLP is now appealing that case to the 9th Circuit, arguing that EPA’s consideration of a veto before a permit application has been filed exceeds its statutory authority. The mining companies say that their claim is analogous to the Supreme Court’s 2012 ruling in Sackett v. EPA — which mandated pre-enforcement review of the agency’s CWA compliance orders despite EPA’s claims that the orders carried no independent consequences, in part because the orders made it more difficult for recipients to obtain permit coverage. “As in Sackett, that Pebble has not yet applied for a permit does not make this result any less of a legal consequence,” the brief says. WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 11 Stormwater Chicago Water District Urges Appellate Court To Sustain Stormwater Pact A Chicago water district is defending a district court’s approval of a consent decree with EPA intended to reduce sewer overflows, arguing in recent appellate filings that despite environmentalists’ claims in challenging the pact, the Clean Water Act (CWA) does not require the elimination of all combined sewer overflows (CSOs). In a Dec. 5 answering brief filed in the U.S. Court of Appeals for the 7th Circuit, the Metropolitan Water Reclamation District (MWRD) of Chicago, asks the court to let stand a January 2014 decision from the U.S. District Court for the Northern District of Illinois, where a judge entered a consent decree between the district and EPA, requiring it to add three reservoirs to its existing stormwater tunnel and reservoir plan (TARP). Relevant documents are available on InsideEPA.com. See page 2 for details. Environmentalist groups have challenged the agreement, saying it is inadequate and will not end CWA violations “as a result of MWRD’s “The CWA does not continuing large discharges of combined sewage” (Water Policy Report, mandate elimination of all Aug. 25). The groups also take issue with the decree’s green infrastructure CSOs and it is not a flaw provisions, which they call “meager” compared to recent agreements in of the Consent Decree other cities (Water Policy Report, April 21). that it does not seek to But MWRD counters it is adequately committed to controlling achieve that end.” CSOs and complying with the water law even though the planned actions — MWRD may not fully eliminate CSOs, and that there is “ample” evidence that “the District will be nimble and resourceful in completely implementing TARP, and in implementing additional measures if post-construction monitoring shows them to be necessary in order to achieve CWA compliance and to satisfy the requirements of the Consent Decree.” Furthermore, MWRD says, the environmental groups, which include the Alliance for the Great Lakes and the Natural Resources Defense Council, misrepresent “what constitutes compliance.” “The CWA does not mandate elimination of all CSOs and it is not a flaw of the Consent Decree that it does not seek to achieve that end,” MWRD writes. “Nor can excerpts of analytical reports, some more than 40 years old, speak for themselves about the future performance of TARP.” Environmentalists predict that CSO discharges will continue after the completion of the TARP reservoirs, pointing to what they say are MWRD admissions that discharges may continue and studies by the U.S. Army Corps of Engineers that show the new reservoirs would be too small to accommodate the mixture of sewage and stromwater likely to be generated during storm events. But MWRD says proving the overflows will completely stop is unnecessary. “The District Court properly characterized the notion that the CWA requires the elimination of CSOs as the ‘fundamental fallacy’ of Intervenors’ attack on the Consent Decree,” MWRD adds, citing EPA’s 2000 CSO Control Policy, which required permitting authorities to include technology and water-quality based standards in their permitting requirements, but arguing that there is no per se ban on CSOs in the CWA. The district also questions the environmental groups’ conclusions on the adequacy of the tunnel plan, saying the groups offered no expert to explain the reports they used to forecast the performance of the TARP construction. And the district defends the agreements’ green infrastructure requirements, saying that because the lower court already approved such requirements, and looked at “the specific elements of the decree and what each element would accomplish” and still approved the pact, the green infrastructure requirements, and others, should be allowed to stand. Although the 7th Circuit has yet to issue a time table for further action in the case, Circuit Judge Frank Easterbrook Dec. 16 denied a motion by the National Association of Clean Water Agencies (NACWA) to file an amicus brief on behalf of MWRD, saying that the groups’ proposed brief “does not appear to add any information or material legal argument to what is already present in the parties’ briefs.” NACWA had argued that because many of its members were in the midst of negotiating terms of similar consent decrees, it had a stake in the “proper standard of review and level of deference the judicial branch affords consent decrees negotiated by the United States, states, and regulated municipalities” at issue in the case. “NACWA and its members have a substantial interest in this case wherein the Court will determine whether the District Court properly evaluated the negotiated settlement between the state and federal governments and the MWRD and properly entered the MWRD Consent Decree,” attorneys for NACWA write in a Dec. 12 motion to file an amicus curiae brief. — Amanda Palleschi 12 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Stormwater Environmentalists’ Suit Seeks Stricter EPA Municipal Stormwater Rules Environmentalists are suing EPA claiming the agency has failed to meet the terms of a years-old court order that required the agency to strengthen its standards for curbing urban stormwater runoff, arguing that the “unreasonable delay” in tightening the rules is posing human health risks from water contaminated with polluted runoff. The suit, filed Dec. 18 in the U.S. Court of Appeals for the 9th Circuit, asks the court for a writ of mandamus that would force the agency to comply with the court’s 2003 order by legally binding deadlines. “Given EPA’s delay up to this date, a deadline for compliance with the Court’s mandamus is critical; without such a deadline, EPA will be able to continue to disregard the 2003 order, as it has for eleven years,” the lawsuit says. The environmentalists’ petition is available InsideEPA.com. See page 2 for details. The groups claim EPA did not follow a deadline first set by Congress for the agency to adopt an effective stormwater program by 1993. EPA then issued a final rule in 1999, but the 9th Circuit in 2003 said the rules had to be revised. EPA pledged in 2009 to overhaul its urban stormwater rules and in 2012, announced that it was considering options for regulating forest road runoff. The agency recently abandoned that rulemaking effort. In their new lawsuit, the Natural Resources Defense Council (NRDC) and Environmental Defense Center (EDC), argue that EPA’s “Phase II” stormwater standards remain too weak, and outline requests for the court to force various changes by certain dates to both regulations in order to adequately address contamination. First, they request that the court immediately order EPA to revise its Phase II rules for small municipal separate stormwater sewer systems (MS4) to include a statement that directs water permitting authorities to comply with the order in the 2003 case known as EDC v. EPA pending further rulemaking. “This action is needed to ensure that state permitting agencies do not continue to mistakenly rely on the vacated rules,” the suit says. Second, the petitioners ask the court to order EPA to propose within six months a rule revising the small MS4 regulations in order to comply with the 2003 order to update the regulations. “EPA has already had more than a decade to consider that order, and revising the rule to address the procedural deficiencies the order identified should be straightforward. Petitioners also request that the Court order EPA to take final action on the proposed rule within six months of proposing it,” the suit says. Third, the suit also asks that the court in the requested writ of mandamus force EPA to decide within six months “whether to regulate forest roads. EPA has already stated that its Phase II authority ‘may be well-suited; to regulate forest roads and that it has been considering options for doing so for years. If EPA ultimately decides to regulate forest roads, as it has repeatedly implied it would, Petitioners request that the Court order EPA to propose a rule within a year of that decision and finalize that rule no later than a year after issuing the proposed rule.” “This inexcusable delay in obeying a clear court order is, unfortunately, all too typical of EPA foot-dragging on the crucial stormwater pollution problem,” said NRDC senior attorney Larry Levine. “The agency has repeatedly promised a much-needed update of all its stormwater protections, and repeatedly failed to come through.” “As EPA itself acknowledges, municipal stormwater is one of the leading sources of water pollution nationally and contributes to illnesses in swimmers and hundreds of beach swimming advisories every year,” the suit says. Climate Change CEQ Finalizes EPA, Other Agencies’ Water Resources Planning Guide The White House Council on Environmental Quality (CEQ) has finalized long-awaited guidance requiring EPA and other agencies to weigh adverse impacts from climate change and the use of “green” water infrastructure when planning water resources projects, rejecting concerns that the guide may give bias to certain infrastructure projects. The final interagency implementation guidelines released Dec. 17, known as the “Principles, Requirements and Guidelines (PR&G) for Federal Investments in Water Resources,” provides direction to several agencies on implementing a Principles & Requirements (P&R) policy for water projects updated last year. Relevant documents are available on InsideEPA.com. See page 2 for details. The P&R, released in March 2013, required EPA and other agencies — the Army Corps of Engineers, the Department of Interior, the U.S. Department of Agriculture and the Tennessee Valley Authority — to consider climate change impacts and weigh the use of non-structural alternatives, including green infrastructure, when planning water resources projects. Alongside the updated P&R, the administration floated a draft version of the PR&G and took comment on it, and the final version largely reflects the language of last year’s draft document. “By making smart investments in water infrastructure, the Federal Government can save taxpayer money and promote economic growth while protecting communities against extreme weather and other disasters,” said CEQ chief WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 13 Climate Change Mike Boots. “With this update of the 30-year-old Principles, Requirements and Guidelines, we are ensuring that communities have a voice in selecting the water projects that will help them thrive.” In the implementation document, CEQ prescribes more intensive studies of a project’s impacts, which are triggered when it meets thresholds for cost, federal funding and National Environmental Policy Act review. An in-depth study is mandatory when a project meets the three criteria, but agencies have discretion to apply stricter standards if it deems more analysis is necessary. The guidelines also allow for certain types of projects, including those funded by EPA’s water infrastructure state revolving fund loans (SRF) to be studied retrospectively, while those funded by some grants are open to tiered programmatic review, and those over which the federal agency “lacks project-level discretion” can be reviewed on a programmatic level rather than individually. CEQ officials praised the completion of the document as a much needed to change to the prior guidance, written in 1983. “For the last 30 years, these guidelines were somewhat restricted by a narrow set of economic parameters that didn’t account and allow for the fuller consideration and evaluation of a full range of cost and benefits,” said CEQ’s Associate Director of Land and Water Jay Jensen, speaking at a conference in Arlington, VA, Dec. 9. The updated guidance, however, “takes an ecosystems services approach to capture all effects — economic, environment and social — associated with water investments,” Jensen said, adding that “this can really be a game changer if they’re embraced” by the ecosystem and environmental community in particular. Last year, environmentalists had praised the administration for requiring consideration of climate change impacts in water resources projects. However, they also strongly criticized the document for limiting enforcement of the requirements when agencies plan projects and for creating new “accounting hurdles” that they say may hamper key restoration projects, including the Florida Everglades and the Mississippi River Delta. Public comments on the draft PR&G urged CEQ to “ensure there is not a bias for environmental projects over economic development projects” and to “avoid requirements to prioritize any one type of project over another.” In its response to comments, CEQ says, “The PR&G process does not create a bias for any type of project over another, but instead ensures the full suite of variables are considered.” CEQ says the former 1983 guidelines “were narrowly biased towards those economic effects that are generally more easily quantified and monetized, and did not support potential long term economic benefits or community priorities. Agencies are directed to consider not just economic factors, but social and environmental ones as well.” New Climate Change Data Sets Could Aid Understanding Of Water Issues New data sets released earlier this month as part of the Obama administration’s Climate Data Initiative (CDI) are expected to help the public and community leaders better understand water and ecosystem vulnerability due to climate change, federal officials say. The new data sets will specifically improve the amount of data publicly available about water and ecosystem vulnerability, including stream flow, groundwater levels and water quality, spanning more than a century, Secretary of the Interior Sally Jewell said Dec. 9 at a conference in Arlington, VA, sponsored by A Community on Ecosystem Services (ACES). “We are ready to distill massive amounts of data to make it more readily available to communities and innovators,” Jewell said. “Now we can look at that data on top of land to figure out what’s happening on the ground.” The new data sets released Dec. 9 are the U.S. Geological Survey’s (USGS) EcoINFORMA tool and Global Ecosystems Map. The creation of CDI was spurred in part by 2012 Hurricane Sandy, where USGS was able to data map the storm before it hit. USGS officials, speaking at ACES, described the new data sets as “high resolution climate projections” that consolidate 118 different data sets from data.gov including data, maps, tools, as well as resources from non-governmental organizations and the private sector. The tools will let any member of the public see: how the watercycle is changing; how communities and water managers can better plan for climate change, and how changing water resources can affect food, energy, ecosystems and human health. According to USGS, EcoINFORMA is a tool that is designed to “facilitate assessments of the impact of climate change, pollution and other stressors on ecosystems, biodiversity and ecosystems services, as well as assessments of management responses” to them. The tool includes open data catalog and a geospatial data viewer that can answer information about migratory bird patterns or local fish populations. The second tool, the Global Ecosystems Map, displays the integration of “global bioclimate regions, global land forms, global geology and global land cover at 250-meter spatial resolution” — whereas a previous standard was only 1kilometer resolution. Jewell, in her speech, hailed the tools as a key part of the Obama administration’s commitment to its climate action plan, calling it “troves of government data, and we hope it’s going to inspire other countries to do the same — a lot of countries guard this data and we want to share it openly,” she said. 14 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Oil Spill Response White House Completes Review Of Proposed Revisions To Oil Spill Rule The White House Office of Management & Budget (OMB) has completed its review of EPA’s proposed revisions to regulations governing the authorization of oil spill response agents such as dispersants, following meetings earlier this year with industry, which has defended the use of chemical dispersants, and environmental groups, which have raised environmental and public health concerns about them. The Dec. 18 action clears the way for EPA officially to propose long-stalled changes to the National Oil and Hazardous Substances Pollution Contingency Plan’s (NCP) Subpart J Product Schedule Listing Requirements. EPA sent its proposed rule for OMB review in July (Water Policy Report, Aug. 11). In a brief description of the proposal on OMB’s website, the agency says it is weighing revisions to technical product requirements under the rule, “including amendments to the effectiveness and toxicity testing protocols, and establishing new effectiveness and toxicity thresholds for listing certain products on the Schedule.” EPA is also considering advanced monitoring techniques and revisions to area planning requirements for authorizing use of agents, it says. The description says the use of dispersants to address the 2010 Deepwater Horizon spill in the Gulf of Mexico “raised many questions about efficacy, toxicity, environmental trade-offs, and monitoring challenges. The Agency is considering amendments to subpart J that would increase the overall scientific soundness of the data collected on mitigation agents, take into consideration not only the efficacy but also the toxicity, long-term environmental impacts, endangered species protection, and human health concerns raised during responses to oil discharges, including the Deepwater Horizon incident,” it says. The Clean Water Act requires EPA to develop a schedule identifying dispersants and other spill mitigating devices or agents that may be used under the NCP, and in which waters and at what quantities they may be used, according to a Unified Agenda notice issued by EPA last year. A coalition of environmental groups last February wrote to Obama administration officials pressing for the rule revisions, saying EPA has failed to meet its own deadlines for releasing proposed revisions. The revisions have been longanticipated — with initial work started in 2001. The need to reform these regulations “became tragically clear during the response to the Deepwater Horizon Disaster in 2010,” the groups said in their Feb. 5 letter. That response “tragically embodied the problems that arise under a regulatory framework requiring only minimal testing and information submission prior to making a dispersant eligible for use,” they said. Specifically environmentalists have sought significant changes in the wake of the Deepwater Horizon spill, criticizing the use of the petroleum-based dispersant Corexit to respond to that spill, and asking the agency to amend the NCP product schedule by creating a “delisting” process for removing products from the list that are failing to perform as expected, pose unacceptable health or environmental risks or were discontinued by the manufacturer but remain stockpiled. They also have asked EPA to defer to mechanical containment and recovery as the primary spill response mechanism, to strengthen efficacy testing protocols and update toxicity criteria and testing of products on the list. Further, environmentalists want EPA to more fully overhaul the rule in order to also address spill responses to unconventional fuels such as tar sands and oil produced from hydraulic fracturing. But the oil industry in a presentation given to EPA and OMB last August called for restraint in revising the rule, asking that the revisions not hinder rapid responses or current agreement on dispersant use. In fact sheets shared by the American Petroleum Institute at the meeting, the group defended a place for dispersants such as Corexit EC9500A, which SUBSCRIPTION ORDER FORM Sign me up to receive Water Policy Report at $730 per year in the U.S. and Canada; $780 per year elsewhere (air mail). 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E-mail at [email protected] Please check one: Visa MasterCard Bill me Check enclosed (DC subscribers add 6% sales tax) Card number _________________________________________ Name on the card _____________________________________ Signature _______________________________________________ Exp. date ____________________________________________ WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 15 Oil Spill Response it says is the most commonly used dispersant and the least toxic. According to the fact sheets, mechanical recovery, rather than dispersants, is the most commonly used response option as it is the best option for small, near-shore spills, which are the majority of spill type. But mechanical recovery does not work well in rougher sea conditions, the fact sheets say. “Dispersants become a critical response tool for larger spills far from shore, spills more distant from stockpiles of recovery and containment equipment, when weather and ocean conditions preclude the use of other options, or when weather conditions are predicted to become more severe,” they say. Nonpoint Sources Despite EPA Encouragement, SRFs Rarely Used For Nonpoint Projects States and municipalities are not taking full advantage of EPA’s clean water state revolving loan funds (CWSRF) to finance nonpoint source estuary projects, despite encouragement from agency headquarters and clear authority in the Clean Water Act, according to a former EPA financial advisor. EPA is “dying to get that money out the door,” Michael Curley, a visiting scholar at the Environmental Law Institute, said during a Dec. 10 panel discussion on ecosystems services and climate resilience in Arlington, VA. Curley, an environmental finance attorney, served for several years on EPA’s Environmental Finance Advisory Board. “SRFs have the authority under the [Clean Water Act] for nonpoint source projects as long as the state identifies a nonpoint source problem” in its SRF intended use plan, which scores and ranks projects eligible for SRF money, Curley said. EPA’s CWSRF program provides federal grants to help capitalize state-run revolving loan funds to provide low-cost financing for a wide range of water quality projects, including watershed restoration and protection, estuary management and other nonpoint source protection projects, as well as traditional wastewater treatment infrastructure projects. But to date, only $4.3 billion, or just over 4 percent, of total CWSRF funds between 1988 and 2014 has been used to address nonpoint sources of water pollution — such as stormwater runoff from urban areas — to protect and restore estuaries, according to an EPA spokesperson. The agency has held webinars encouraging the use of CWSRF funds for nonpoint source estuary projects, including an April 2012 webinar where EPA hailed the option as a “useful approach for [nonpoint source] projects in a state’s priority watersheds that do not have a revenue stream to repay a loan.” But despite this encouragement from EPA headquarters, Curley said some EPA regions have shown a reluctance to use CWSRFs for this purpose, citing a current legal battle in New York over EPA’s plan to reject the state’s decision to use loans from the CWSRF to fund over $500 million in repairs to the Tappan Zee bridge over the Hudson River. State officials have argued that the bridge’s Conservative Conservation Management Plan qualifies for the CWSRF and is “water quality-based” because they serve estuary projects, restoring marshland that runs south of the bridge and removing structures around the bridge. They claim that the causeway and piers of the existing bridge make river currents to locally scour the bottom sediments, resulting in depressions in the bottom of the bridge. But EPA Region 2 has said that seven of the 12 projects in the plan are ineligible for CWSRF funds — $481.8 million of the total $511 million requested — and environmental and industry groups have lauded the decision, saying EPA chose “policy over politics.” New York’s Environmental Facilities Corporation, meanwhile, has appealed the decision with a Region 2 board (Water Policy Report, Dec. 1). Additionally, environmental groups have filed a suit in state court to ensure Region 2’s decision is sustained (Water SUBSCRIPTIONS: 703-416-8500 or 800-424-9068 [email protected] NEWS OFFICE: 703-416-8564 Fax: 703-416-8543 [email protected] 16 Publisher: Chief Editor: Associate Editors: Jeremy Bernstein ([email protected]) Lara Beaven ([email protected]) Amanda Palleschi ([email protected]) Chris Cotelesse ([email protected]) Production Manager: Production Specialists: Lori Nicholson ([email protected]) Daniel Arrieta, Michelle Moodhe Water Policy Report is published every other Monday by Inside Washington Publishers, P.O. Box 7167, Ben Franklin Station, Washington, DC 20044. Subscription rates: $730 per year in U.S. and Canada; $780 per year elsewhere (air mail). © Inside Washington Publishers, 2014. All rights reserved. Contents of Water Policy Report are protected by U.S. copyright laws. No part of this publication may be reproduced, transmitted, transcribed, stored in a retrieval system, or translated into any language in any form or by any means, electronic or mechanical, without written permission of Inside Washington Publishers. WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 Nonpoint Sources Policy Report, Nov. 17). Curley, however, remains critical of Region 2’s actions. In a Dec. 4 posting on the Huffington Post, he said the decision constituted an arm of EPA “trying to kill off environmental innovation.” “How especially ironic since at the same time time the President of the United States is signing into law the Water Infrastructure Finance and Innovation Act” — referring to a novel water infrastructure finance program that has been authorized through an Army Corps of Engineering bill passed by President Obama but not yet funded — “and is standing at the foot of the new bridge calling for a forward-looking infrastructure agenda. Shouldn’t Region 2 be on the same page as their President?” Curley wrote. — Amanda Palleschi Toxics 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.” The ANPR, which EPA took comment on through Sept. 18, including options such as reporting rules under section 8 of TSCA to require manufacturers, processors or distributors to report to EPA the names, volumes, estimated exposure levels, disposal methods and other information 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 sites 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 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 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014 17 Toxics 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. 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. — Bridget DiCosmo EPA Extends Comment Deadline On Dental Amalgam Effluent Regulation EPA has extended from Dec. 22 to Feb. 20 the deadline for public input on its proposed rule to require dental offices to remove 99 percent of dental amalgam from wastewater discharges, after dental industry groups and wastewater officials sought more time to assess the data supporting the rule and the rule’s potential impacts. In a Federal Register notice published Dec. 19, the agency notes that it received requests to extend the Dec. 22 comment deadline. It says that the extension will give the public “additional time to submit comments and supporting information.” The notice is available on InsideEPA.com. See page 2 for details. The National Association of Clean Water Agencies (NACWA) and the American Dental Association (ADA) in a Nov. 4 letter to EPA requested the extension to have more time to review the rule (Water Policy Report, Nov. 17). “Given the long history involved with this issue, including an earlier decision by EPA that effluent guidelines were not necessary for the dental category, NACWA and ADA believe that the proposal demands careful and thoughtful review. To do this, both NACWA and ADA will need additional time to reach out to members, collect data, and then compile that information into comments. In addition, EPA documents are still being added to the docket on www.regulations.gov, and additional time is needed to review all of the supporting information before completing a thorough review of this significant proposed regulation,” the industries said. EPA in its proposed rule, published in the Oct. 22 Register, says 127,057 dental offices would be designated as dental industrial users (DIU) under its general pretreatment regulations and would be required to remove 99 percent of mercury from wastewater before it is discharged to publicly-owned treatment works (POTWs) (Water Policy Report, Oct. 6). EPA estimates that compliance would remove an additional 8.8 tons of metals per year — half of which is mercury — from discharges to POTWs, costing between $44 million and $49 million annually. The agency says the new pretreatment category would ease implementation of the rule by streamlining POTWs’ oversight requirements for the dental sector by eliminating discharge monitoring for the dentists, expecting most dental offices to comply through an amalgam separator program. However, a NACWA source told Inside EPA in November that many POTWs do not need federal regulations on mercury, either because “they do not have mercury influent that warrant the resources required for a separator program, or that they can establish their own program.” The NACWA source also claimed EPA has underestimated the time POTWs will need to devote to ensuring compliance from dental offices and the rule’s ecological benefits, noting that the agency relied on a 1982 study of 50 POTWs to determine the 4.4 tons of mercury that POTWs are unable to remove from the water they treat. “This information is outof-date. Utilities routinely achieve mercury removal efficiencies of 95 per cent and greater. Correcting this value will result in less environmental benefit from the rule,” the source said. 18 WATER POLICY REPORT - www.InsideEPA.com - December 29, 2014
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