News

CWIS Rule Upheld

On July 23, 2018 the 2^nd Circuit Court of Appeals issued a decision denying all petitioners’ requests to overturn and remand the Environmental Protection Agency’s (EPA) Cooling Water Intake Structure (CWIS) rule. The final CWIS rule promulgated by the EPA in August of 2014 and challenged by the Petitioners applies to existing power plants and manufacturing facilities that use CWIS’s to withdraw 2+ million gallons of water per day, of which at least 25% percent is used for cooling. Among other things, the CWIS rule established impingement and entrainment standards for existing facilities and for new units at existing facilities and that also implements several processes to ensure compliance with the Endangered Species Act (ESA).

Environmental petitions argued that: (1) the rule’s entrainment and impingement requirements violated the CWA; (2) the definition of “new unit” was arbitrary and capricious; (3) the Services violated section ESA and its implementing regulations; (4) the Services’ Incidental Take Statement (ITS) violates §7 of ESA. Industry petitions argued that: (1) EPA exceeded its authority under the CWA; (2) the Services violated ESA by issuing a biological opinion that relied on an erroneous environmental baseline; (3) EPA violated the APA by failing to provide notice of, and an opportunity to comment on, provisions in the rule adopted at the Services’ behest; (4) EPA violated the APA when it concluded that manufacturing facilities will incur minimal compliance costs in meeting the rule’s standards for “new units”; and (5) EPA acted arbitrarily and capriciously in violation of the APA with respect to permit application requirements and requirements for intake structures that withdraw little or no water exclusively for cooling purposes.

The court concluded that because “both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA gave adequate notice of its rulemaking, we DENY the petitions for review.” A copy of the decision can be found here.

CERCLA/EPCRA Rule Animal Waste Reporting

On July 23, 2018 Acting Administrator Wheeler signed a final rule incorporating Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) revisions enacted by the Fair Agricultural Reporting Method (FARM) Act, signed into law on March 23, 2018, which exempts reporting of air emissions from animal waste under CERCLA. Section 553 of the Administrative Procedure Act (APA) allows an agency to issue a final rule without providing notice and comment opportunity, when that finds that notice and public comment procedure are impracticable, unnecessary or contrary to the public interest. EPA has determined that there is good cause to issue this final rule without prior proposal and opportunity for comment because these revisions undertake the ministerial tasks of removing CERCLA and EPCRA regulatory provisions vacated by the D.C. Circuit and adding provisions to the CERCLA regulations consistent with the FARM Act’s legislative amendments. EPA is also removing the 2008 definitions of “farm” and “animal waste” from the CERCLA and EPCRA regulations and adding revised definitions of “farm” and “animal waste” to the CERCLA regulations consistent with the FARM Act. A pre-publication copy of the rule can be found here.

EPA Releases Information on Colorado PFAS Engagement Session

EPA released more information on the Colorado Springs PFAS Engagement Session. This engagement session will be the 3rd in a series of PFAS engagement sessions across the country. The session will be held over two days, August 7th and 8th, and will consist of presentations, a working session and a listening session. For more information, please see the EPA announcement.

EPA Holds Second PFAS Community Engagement Session

The EPA held its second PFAS Engagement Session this week in Horsham, PA. The event consisted of a day of presentations from federal, state, and local governments grappling with PFAS contaminated drinking water. This was followed by a ~6 hour listening session where the public was able to voice their concerns directly to Dr. Peter Grevatt, Director of the Office of Ground Water and Drinking Water, and Cosmo Servidio, Region 3 Administrator. EPA plans to continue these engagement sessions in each EPA region over the next few months and will use information gathered to inform the PFAS Management Plan due out later this year.

Association Updates

EPA Seeks Input on National Water Program Measures

The Office of Water has developed a structured approach (Approach for Development of National Water Program Core Measures 7-13-18)  for identifying a new refined set of measures.  EPA is seeking input from states on the development of these core measures and is working with ACWA to develop a list of core measures through state/tribal input.  The timetable provided by the Office of Water is aggressive and they are asking for state input by the end of August. Sean Rolland, Deputy Director, will be leading this effort for ACWA.  Feel free to reach out to Sean directly  if you have specific comments or concerns about this effort.

Meetings

2018 Annual Meeting

Register Now! Three weeks remaining!

Early bird registration extended to July 31st. 

If you need lodging please visit this link for other hotel options.

Coming Soon…

ACWA NSA and Watershed Committee Call: Update on Final Selenium Implementation Materials
Thursday, August 2nd, 2:30-3:15 PM EST
Contact Frances Bothfeld for more information