Click Here to read about 8th Circuit Penalties on not having NPDES Construction Permit!!

Click Here to read the Obama CWA Legislation Letter!!

Click Here to read about the 2007 9th Circuit Pinto Creek NPDES case on new facilities discharging to a non-attainment water!!


EPA PUSHES BACK SPCC PLAN UPDATE/PREPARATION DEADLINE TO NOV. 10, 2011 (see attached)

In the Aug 3, 2010 Federal Register, EPA proposed to extend the compliance date for certain facilities subject to the Spill Prevention Control and Countermeasure (SPCC) rule. This proposed SPCC rule amendment extends the dates in §112.3 by which the owners or operators of certain SPCC regulated facilities must prepare or amend and implement an SPCC Plan, and reconciles the proposed compliance dates for new production facilities. The proposed compliance date for certain facilities is November 10, 2011.

In an obvious attempt to fend off criticism as a result of the BP Gulf of Mexico gusher, EPA is proposing to maintain the current November 10, 2010 compliance date for drilling, production and workover facilities that are offshore or that have an offshore component, or for onshore facilities required to have and submit Facility Response Plans (FRPs) (those with really large oil storage capacities).

NPDES Guidance for Powerplants Issued by EPA

National Pollutant Discharge Elimination System Permitting of Wastewater Discharges from Flue Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam Electric Power Plants (ATTACHED memorandum and two guidances on TBELs and WQBELs) is for EPA to provide new interim guidance to assist National Pollutant Discharge Elimination System (NPDES) permitting authorities to establish appropriate permit requirements for wastewater discharges from Flue Gas Desulfurization (FGD) systems and coal combustion residual (CCR) impoundments at Steam Electric Power Plants. Date Published: 06/07/2010

No More Choosing the Least Sensitive Test Method for NPDES Monitoring?

EPA has proposed a rule to clarify that NPDES applicants and permittees must use sufficiently sensitive analytical methods when quantifying the presence of pollutants in a discharge, and the EPA must require and accept only such data. EPA determined that the NPDES permit application regulations at 40 CFR 122.21 and the NPDES permit monitoring requirements at 40 CFR 122.44 should be clarified to ensure that applicants and permittees use sufficiently sensitive analytical methods for all pollutants. 75 Fed. Reg.35712 (June 23, 2010).

EPA Proposes New Permit Requirements for Pesticide Discharges

On June 2, 2010, EPA announced the public availability of a draft National Pollutant Discharge Elimination System permit for point source discharges from the application of pesticides to waters of the United States (see attached). This permit is also known as the Pesticides General Permit (PGP). The PGP was developed in response to a decision by the Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA). The court vacated EPA's 2006 rule that said NPDES permits were not required for applications of pesticides to U.S. waters. As a result of the Court's decision, discharges to waters of the U.S. from the application of pesticides will require NPDES permits when the court's mandate takes effect, on April 9, 2011. Any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit or alternative general permit if they involve pesticide application that result in point source discharges to waters of the United States. This general permit will provide coverage for discharges where EPA is the NPDES permitting authority. For discharges in NPDES authorized states, state NPDES authorities will be issuing their permit.

EPA's PGP regulates discharges to waters of the U.S. from the application of (1) biological pesticides, and (2) chemical pesticides that leave a residue. The following pesticide use patterns are covered under the PGP: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control, and forest canopy pest control. The PGP does not authorize coverage for (1) discharges of pesticides or their degradates to waters already impaired by these specific pesticides or degradates or (2) discharges to outstanding national resource waters (also known as Tier 3 waters). These discharges will require coverage under individual NPDES permits. Also outside the scope of this permit are terrestrial applications to control pests on agricultural crops or forest floors.

The proposed permit, released for public comment, would require all operators to reduce pesticide discharges by using the lowest effective amount of pesticide, prevent leaks and spills, calibrate equipment and monitor for and report adverse incidents. Additional controls, such as integrated pest management practices, are built into the permit for operators who exceed an annual treatment area threshold. “EPA believes this draft permit strikes a balance between using pesticides to control pests and protecting human health and water quality,” said Peter S. Silva, assistant administrator for EPA’s Office of Water. EPA estimates that the pesticide general permit will affect approximately 35,000 pesticide applicators nationally that perform approximately half a million pesticide applications annually. The agency’s draft permit covers the following pesticide uses: (1) mosquito and other flying insect pest control; (2) aquatic weed and algae control; (3) aquatic nuisance animal control; and (4) forest canopy pest control. It does not cover terrestrial applications to control pests on agricultural crops or forest floors. EPA is soliciting public comment on whether additional use patterns should be covered by this general permit. The agency plans to finalize the permit in December 2010. It will take effect April 9, 2011. Once finalized, the pesticide general permit will be used in states, territories, tribal lands, and federal facilities where EPA is the authorized permitting authority. In the remaining 44 states, states will issue the pesticide general permits. EPA has been working with these states to concurrently develop their permits. EPA will hold three public meetings, a public hearing and a webcast on the draft general permit to present the proposed requirements of the permit, the basis for those requirements and to answer questions. EPA will accept written comments on the draft permit for 45 days after publication in the Federal Register.

Click here for the PGP Fact Sheet!!
Click here for the PGP FAQs!!

EPA Reaches Settlement in Chesapeake Bay Lawsuit

May 11, 2010 The U.S. Environmental Protection Agency announced that it reached settlement with the Chesapeake Bay Foundation, four former Maryland, Virginia and Washington, D.C. elected officials, and organizations representing watermen and sports fishermen in resolving a lawsuit filed in January 2009 claiming that EPA had failed to take adequate measures to protect and restore the Chesapeake Bay. The lawsuit, Fowler v. EPA, is pending in federal district court for the District of Columbia. The settlement agreement includes regulatory and other actions that EPA has initiated or pledged to take under the Obama administration to restore water quality in the Chesapeake Bay and its tributaries, including establishment of a Chesapeake Bay total maximum daily load (TMDL), putting in place an implementation framework, expanding EPA review of Chesapeake Bay watershed permits, and initiating rulemaking for new regulations for concentrated animal feeding operations and urban and suburban stormwater. The agreement also includes a commitment to establish a publicly accessible tracking and accounting system to monitor progress in reducing pollution through the TMDL and two-year milestones. By December 31, 2010, EPA will establish the Chesapeake Bay TMDL, involving pollution sources throughout a 64,000-square-mile watershed that includes six states and the District of Columbia. In 2009, EPA announced that it expects the six watershed states and D.C. to provide detailed strategies for reducing pollutant loads to meet water quality standards. EPA also expects detailed schedules for implementing pollution controls and achieving pollution reductions. Progress will be measured through milestones every two years, and EPA may take action for inadequate plans or failure to meet the milestones.

Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category

EPA establishes national technology-based regulations, called effluent guidelines, to reduce discharges of pollutants from industries to waters of the U.S. and publicly owned treatment works. These requirements are incorporated into National Pollutant Discharge Elimination System (NPDES) discharge permits issued by EPA and states. The steam electric effluent guidelines apply to steam electric power plants using nuclear or fossil fuels, such as coal, oil and natural gas. There are about 1,200 nuclear- and fossil-fueled steam electric power plants nationwide; approximately 500 of these power plants are coalfired. In a study completed in 2009, EPA found that the current regulations, which were last updated in 1982, do not adequately address the pollutants being discharged and have not kept pace with changes that have occurred in the electric power industry over the last three decades. The rulemaking will address discharges from ash ponds and flue gas desulfurization (FGD) air pollution controls, as well as other power plant waste streams. Power plant discharges can have major impacts on water quality, including reduced organism abundance and species diversity, contamination of drinking water sources, and other effects. Pollutants of concern include metals (e.g., mercury, arsenic and selenium), nutrients, and total dissolved solids. EPA in engaging in data collection for these new technology-based Clean Water Act effluent limits. EPA has identified approximately 1,200 fossil- and nuclear-fueled steam electric power plants that are potentially within scope of the data collection objectives of the questionnaire. EPA intends to distribute the questionnaire to a statistically-sampled subset of these facilities. EPA estimates that approximately 734 fossil- or nuclear-fueled steam electric plants will be required to complete Parts A and I of the questionnaire. The questionnaire consists of multiple sections which have been tailored to address specific processes, specific data needs, or types of power plants. Parts A and I of the questionnaire will be sent to all questionnaire recipients (734 plants); the remaining sections will be sent to discrete subpopulations of questionnaire recipients. The questionnaire will collect general plant information and selected technical information about the plant processes and the electric generating units. The information that will be collected includes economic data and technical information about flue gas desulfurization (FGD) wastewater, ash handling, process equipment cleaning operations, wastewater treatment, surface impoundment and landfill operations, and nuclear operations. The questionnaire will also require certain power plants to collect and analyze samples of leachate from surface impoundments and landfills containing coal combustion residues. The questionnaire was proposed on March 9, 2010.

EPA Extended Public Comment Period for Effluent Guidelines and New Source Performance Standards for the Airport Deicing Category

On August 28, 2009 (74 FR 44676), EPA published a proposed rule entitled ‘‘Effluent Limitation Guidelines and New Source Performance Standards for the Airport Deicing Category; Proposed Rule.’’ Written comments on the proposed rulemaking were to be submitted to EPA on or before December 28, 2009 (a 120-day public comment period). EPA extended the public comment period until February 26, 2010.

ENVIRONMENTAL LAWYERS SUE INDUSTRY TO OBTAIN HUNDREDS OF MILLIONS FOR CLEAN UP OF MASSIVE PHOENIX GROUNDWATER CONTAMINATION PROBLEM

In February, 2010, attorneys for a water district sued numerous industrial operations in the Phoenix metropolitan area that these attorneys allege are responsible for a massive aquifer contamination problem that may cost over one billion dollars to clean up. (Complaint attached). These lawyers allege that the water district that pumps irrigation water has the legal right to use this Phoenix groundwater for any beneficial use, including as a drinking water supply, and that industry must pay for the cleanup of this massive plume that underlies much of the central Phoenix metropolitan area. Contrary to the assertions of the industrial defendants (Potentially Responsible Parties or PRPs), these water district lawyers allege (attached letter) that treatment of contaminated groundwater to a drinking water standard under the requested Early Response Action (ERA) will not impose additional cost because state law requires water treatment under the ERA ".. .to allow the maximum beneficial use of the waters of the state" regardless of the actual end use. A.R.S. 49-282.06(A). Therefore, as a matter of state law, these lawyers claim that the water district is entitled under an Early Response Action to have its water supply sufficiently treated (at industry expense) to meet the maximum beneficial use, (i.e., to drinking water quality). These lawyers note that such expensive treatment already is currently occurring at other groundwater remediation sites in the Phoenix area (also industry PRP funded) including the Motorola 52nd Street Superfund Site Operable Unit 2 (OU2) and the Phoenix-Goodyear Airport - North (PGA-N) Superfund Site. At these sites, liquid-phase granulated activated carbon (GAC) treatment is required to achieve Arizona Aquifer Water Quality Standards and federal Maximum Contaminant Levels even though the end use is irrigation, and this is the type of potentially billion dollar remedy being sought from industry by these attorneys for the water district.

EPA Petitioned to Reduce Black Carbon "Soot" Under Clean Water Act - Global Warming Pollutant Accelerates the Melting of Sea Ice and Glaciers

February 22, 2010 The Center for Biological Diversity petitioned EPA to take action to reduce black-carbon pollution under the federal Clean Water Act. The petition is the first to explicitly seek protection of water in its solid form; it asks EPA to set water-quality criteria for concentrations of black carbon on sea ice and glaciers under the Clean Water Act – the first step toward reducing black-carbon emissions from diesel engines and other sources due to their role in accelerating the loss of sea ice and glaciers.

USEPA adopts new 2010 SDWA enforcement strategy

Under a new Safe Drinking Water Act enforcement strategy, USEPA in 2010 will begin focusing its attention on returning water systems with serious and recurring violations to compliance instead of acting on a contaminant-by-contaminant compliance basis. As detailed in a memo to Regional Administrators, USEPA's Office of Enforcement and Compliance asserts the new approach "will bring the systems with the most significant violations to the top of the list for enforcement action in states, territories and in federal Indian Country, so that we can return those systems to compliance as quickly as possible. As we work to protect the public's access to clean and safe drinking water, we need to be especially vigilant about noncompliance that has the potential to affect children, such as violations at schools and day care centers." OECA developed the new strategy in cooperation with the Association of State Drinking Water Administrators, USEPA regions, and the USEPA Office of Water. The strategy will be evaluated throughout 2010 for opportunities for improvements. The agency said the new strategy aims to:

• Align SDWA violations within a prioritization that is more protective of public health.
• View public water system compliance status comprehensively.
• Ensure that both USEPA and states act on and resolve drinking water violations.
• Recognize the validity of informal enforcement response efforts while ensuring that, if these efforts have proven ineffective, enforceable and timely action is taken.
• Ensure that USEPA and states escalate enforcement efforts based on the prioritization approach.
• Increase the effectiveness of state and federal enforcement targeting efforts by providing a "tool" that calculates comprehensive noncompliance status for all systems and identifies those systems not meeting national expectations as set by USEPA.

• Surface Impoundments. EPA is going to look at the 18,000 operating non-hazardous surface impoundments, with a focus on chemical, petroleum, and paper product manufacturing.
• Wetlands. EPA intends to hit Clean Water Act section 404 permit violations and unpermitted discharge to wetlands, especially in coastal watersheds.
• Indian Country Drinking Water. EPA iintends more compliance assistance, monitoring, and enforcement of drinking water quality in Indian Country.
• Marine Debris. EPA wants to address discharges that contribute to marine debris witn increased enforcement of permit requirements, such as the NPDES general permit for vessels.
• Wet Weather Municipal Infrastructure. EPA wants municipal utilities to carry out an ongoing process of oversight, evaluation, maintenance and replacement of stormwater and sewage system infrastructure
• Resource Extraction. EPA intends to increase focus on resource extraction activities, including increased monitoring at wastewater treatment plants, resource extraction sites, and sensitive ecosystems to obtain data and to evaluate conditions; and targeted enforcement at facilities coupled with an enhanced deterrence effect.
• Concentrated Animal Feeding Operations (CAFOs). EPA is to focus on compliance by the 19,000 CAFOs in the U.S. to protect surface waters from animal waste.
• Environmental Justice—Community Based Approach. EPA seeks geographically-based targeted enforcement activities in identified disadvantaged communities. EPA regions would work with the communities to identify environmental and health threats within the geographic area to achieve maximum compliance with environmental regulations and protect human health and the environment.

• Construction site owners and operators that disturb one or more acres must use best management practices to ensure that soil disturbing during construction activities will not pollute nearby waters;
• Construction sites that disturb 20 acres or more at one time (later being reduced to 10 acres) must monitor discharges from the site and prevent discharges that exceed 280 nephelometric turbidity units (NTUs) from leaving the site.

• The company’s balance sheet and income statements for 2005-2009;
• For 10 completed projects, the Notice Of Intent permit number, number of acres, start and end dates of the projects, types of soils and capital costs for each project;
• Land acquisition, development, financing and sales costs for each project.

• Exclusions for oil production facilities and farms from the loading/unloading rack requirements;
• Alternative criteria for an oil production facility to be eligible to self-certify a SPCC plan; and
• Exemption for certain produced water containers.

• 1) Target enforcement to the most important water pollution problems
  
  Over the last 30 years, water enforcement focused mostly on pollution from the biggest individual sources, such as factories and sewage treatment plants. The regulated universe has expanded from 100,000 traditional point sources to nearly one million far more dispersed sources such as animal feeding operations and storm water runoff. Many of the nation’s waters are not meeting water quality standards, and the threat to drinking water sources is growing. To address these challenges, EPA plans to revamp federal and state enforcement to tackle sources posing the biggest threats to water quality while EPA intensifies vigorous civil and criminal enforcement against traditional end-of-pipe pollution.



• 2) Strengthen oversight of the states
  
  State compliance and enforcement vigor is uneven. Without consistent enforcement by EPA and states, there exists an unlevel playing field for businesses that do comply with the law. EPA must ensure that states protect water quality and consistently apply the law by issuing protective permits and by pursuing vigorous enforcement. EPA intends to clearly articulate where the bar is for acceptable state programs, and consistently hold states – and EPA where it implements the law – accountable. Where states are not meeting these expectations, EPA intends to strengthen water quality protection by disapproving permits that are not protective and by pursuing federal enforcement against serious violators.



• 3) Improve transparency and accountability
  
  EPA states that the American public has a right to know what the threats are to water quality, where violations are occurring, and what EPA is doing about them. Requiring reports to be submitted electronically can provide more complete, accurate and timely information to both regulators and the public, enlisting an informed public as a powerful ally to press for stronger performance and accountability from the regulated community. Through use of 21st century information technology to collect, analyze and use information in new, more efficient ways and to make that information readily accessible to the public, it will be easier (says EPA) to identify serious compliance problems quickly and take prompt actions to correct them.

• Developing and implementing operations and maintenance plans and coliform sampling plans.
• Routine disinfection and flushing based on manufacturer recommendations and routine monitoring.
• Self-inspection of the aircraft water system every five years.
• Corrective action in response to sample results or other situations that may be a public health risk.
• Public notification in response to situations that may be a public health risk.
• Periodic compliance audits by EPA.

It is the policy of this District that boating of any sort is NOT PERMITTED in the river — no ifs, no ands, no buts — no boats/boating, kayaks/kayaking, canoes/canoeing — no floatable vessels of any sort. No swimming either.

• Bottled water manufacturers that obtain their source water from other than a public water system must test their source water at least weekly for total coliform. If that source water is total coliform positive, the manufacturer must conduct follow-up testing to determine whether any of the total coliform organisms are E. coli.
• Source water found to contain E. coli will not be considered water of a safe, sanitary quality as required for use in bottled water.
• Before a bottler can use source waterfrom a source that has tested positive for E. coli, the bottler must take appropriate measures to rectify or otherwise eliminate the cause of E. coli contamination of that source in a manner sufficient to prevent its occurrence. A source previously found to contain E. coli will be considered negative for E. coli after five samples collected over a 24-hour period from the same sampling site that originally tested positive for E. coli are tested and found to be E. coli negative.
• Bottlers must maintain records of corrective measures taken to rectify or eliminate E. coli contamination.
• If any coliform organisms are detected in weekly total coliform testing of finished bottled water, follow-up testing must be conducted to determine whether any of the coliform organisms are E. coli.
• Analyses conducted to determine compliance with the standards for microbiological quality for total coliform and E. coli must be made in accordance with the multiple-tube fermentation (MTF) method and membrane filter (MF) methods.
• If E. coli is present in bottled water, then the bottled water is deemed to be adulterated under section 402(a)(3) of the Federal Food Drug and Cosmetic Act (FDCA) and is banned from sale or distribution.