Round Two: Court Says SSI Rule Needs More Work

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The Aug. 20 decision by a Federal Appeals Court on U.S. EPA’s March 2011 Clean Air Act (CAA) Sewage Sludge Incinerator (SSI) Rule marked a partial legal victory and milestone in a multiyear regulatory and legal advocacy effort by NACWA to ensure environmentally appropriate regulation of SSIs on behalf of approximately one-third of the clean water utilities around the nation that incinerate sewage sludge in SSIs.

In NACWA, et al. v. EPA, the U.S. Court of Appeals for the District of Columbia ruled to remand significant components of the rule back to EPA for further consideration and explanation. NACWA initiated the litigation in May of 2011 to challenge EPA’s deficient rulemaking process and the statutory and technical basis of EPA’s final SSI rule. Given that the rulemaking process and the resulting regulatory requirements are often very burdensome and costly to regulated entities, including publicly owned treatment works (POTWs), EPA is required to go through a thorough, deliberative and transparent process to ensure that a final rule is based on valid data, science and economic principles.  NACWA took EPA to court over the SSI rule in line with its over-arching advocacy mission to guarantee that any action that impacts SSIs be statistically and scientifically, technically, and economically sound.  The decision to remand key portions of the SSI rule to EPA sends a clear and unequivocal message to EPA that the rulemaking process cannot be circumvented or short-circuited.

The court agreed with a number of NACWA’s legal challenges, including EPA’s failure to properly account for variability in sewage sludge at POTWs and its inadequate justification for setting emission limits using novel methods and incomplete data. As a result of the ruling, EPA must now reconsider portions of the final rule, provide greater clarity on, and justification for, how it derived the rule’s SSI emissions limits, and make any necessary changes to the limits.

NACWA believes that SSIs have been and should continue to be regulated but in a responsible and defensible manner. NACWA’s involvement has been focused on ensuring that emission limits are based on scientifically and statistically accurate methods and data and employ maximum flexibility – as directed by Congress in both the Clean Air Act (CAA) and the Clean Water Act (CWA) – acknowledging the unique environmental and public health protections that clean water utilities provide. NACWA worked collaboratively with EPA on this issue until the Agency abandoned its long-standing regulatory approach and unexpectedly mandated a new set of SSI air emission standards when it released the proposed rule in early 2011. During the brief 45-day comment period that ensued, NACWA worked tirelessly to demonstrate that the limits were scientifically flawed and achieved some level of success in improving the limits.  However, this fire-drill approach did not allow sufficient time for the necessary data collection and analysis, which prompted NACWA to sue EPA over the rule and embark upon what was perhaps the most ambitious litigation effort in the Association’s history.

Yesterday’s ruling upholds NACWA’s position that EPA must gather and analyze the appropriate data to reassess, justify, and potentially revise the SSI rule.  NACWA will work with our member utilities, EPA and the new Administrator Gina McCarthy to move forward with this process as expeditiously as possible while ensuring that we arrive at a rule that is scientifically based, technically sound, and will not impose unnecessary costs on utilities and their local ratepayers at a time when they are already facing enormous affordability challenges and struggling to meet existing regulatory and financial obligations.   

 

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