EPA Seeks Additional Comment on NPDES Electronic Reporting Rule, and Other Recent CWA Developments

by Bergeson & Campbell, P.C.

EPA Seeks Additional Comment On NPDES Electronic Reporting Rule: On December 1, 2014, the U.S. Environmental Protection Agency (EPA) requested additional comment on the proposed National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule that would require electronic reporting instead of current paper-based NPDES reports. 79 Fed. Reg. 71066. This rule would, according to EPA, modernize NPDES reporting, save time and resources for regulated entities and regulatory agencies, better protect the Nation's waters by improving compliance, and provide the public with access to information that affects their communities. Comments are due by January 30, 2015.

EPA Again Extends Comment Period On "Waters Of The United States" Proposed Rule: On October 6, 2014, EPA extended until November 14, 2014, the comment period on its controversial "Waters of the United States" (WOTUS) rule. 79 Fed. Reg. 61590. The EPA proposed the WOTUS rule in April seeking to clarify its authority under the Clean Water Act (CWA) to regulate smaller water bodies such as streams and rivers that flow into larger water sources that EPA already regulates under the CWA. 79 Fed. Reg. 22188 (Apr. 21, 2014). In June, EPA extended the comment period on the WOTUS proposal to October 20, 2014. 79 Fed. Reg. 35712 (June 24, 2014). EPA has extended the comment period again to allow for public review of and comment on a forthcoming report from the EPA Scientific Advisory Board (SAB) addressing the connectivity of small bodies of water such as streams and wetlands.

EPA Expands Administrative Enforcement Process To Include Ship Air Pollution Fines: On November 6, 2014, EPA issued a direct final rule to expand its administrative civil penalty procedures to include air pollution penalties assessed under the Act to Prevent Pollution from Ships. 79 Fed. Reg. 65897. EPA's administrative enforcement proceedings apply EPA's enforcement of environmental statutes including the Clean Air Act (CAA) and the CWA. It was established to provide "uniform procedural rules" for administrative enforcement adjudications conducted by EPA's administrative law judges or regional judicial officers. EPA stated that applying its administrative enforcement proceedings to ship air pollution, based on engine and fuel standards, "will provide for the efficient and effective adjudication, including administrative appeals, of such proceedings consistent with statutory requirements." It will also provide "consistency and uniformity" in all of EPA's administrative penalty proceedings. EPA considers the rule noncontroversial. If adverse comments are received by December 8, 2014, EPA will withdraw the rule. EPA also proposed the same rule on November 6, 2014. 79 Fed. Reg. 65910. Comments are due by December 8, 2014.

House Passes American Energy Solutions For Lower Costs And More American Jobs Act Despite White House Veto Threat: Before adjourning for the mid-term elections, on September 18, 2014, the House of Representatives passed the American Energy Solutions for Lower Costs and More American Jobs Act (H.R. 2). The bill is an amalgam of several energy-related measures that had been introduced in the 113th Congress. The most controversial provisions in the bill would block EPA's proposed Clean Power Plan, and approve the Keystone XL pipeline, limit regulation of hydraulic fracturing, and expand offshore drilling. Most of the measures in H.R. 2 had already been passed by the House as separate bills. In a Statement of Administration Policy issued on September 16, 2014, the White House promised to veto H.R. 2 if it were presented to the President. "The Administration strongly opposes H.R. 2, which purports to promote and increase the Nation's energy security, but which would undermine energy security and endanger human health and the environment," the statement reads. The White House claims that H.R. 2 "would roll back policies that support the continued growth of safe and responsible energy production in the United States. It also would discourage environmental analysis and civic engagement in Federal decision-making. Furthermore, the bill would impose a system for automatic approval of natural gas pipeline projects that could lead to confusion, increased litigation, delay, and potential denial of the projects that the bill intends to expedite. It also would circumvent longstanding and proven processes for determining whether cross-border pipelines and electric transmission facilities are in the national interest by removing the presidential permitting requirement." The White House's criticism of the bill does not end there, however. "H.R. 2 would endanger public health and the environment by halting U.S. progress in cutting dangerous carbon pollution from power plants, prohibiting the Federal Government from ensuring that hydraulic fracturing activities taking place on Federal and Indian lands are managed in a safe and responsible manner, and requiring the implementation of a court-vacated rule that would not adequately protect drinking water and watersheds from strip mining."

EPA Seeks Data On Nanomaterials Manufacturing: On September 16, 2014, EPA announced the availability of its combined Final 2012 and Preliminary 2014 Effluent Guidelines Program Plans and its 2012 and 2013 Annual Effluent Guidelines Review Reports. The notice solicits public comment and input on the Preliminary 2014 Plan and the 2012 and 2013 Annual Review Reports. 79 Fed. Reg. 55472. The CWA requires EPA to publish biennially a plan for new and revised effluent guidelines, after public notice and comment, which identifies any new or existing industrial categories selected for effluent guidelines rulemaking and provides a schedule for such rulemaking. EPA typically publishes a preliminary plan upon which the public is invited to comment, and then publishes a final plan about a year later. The Final 2012 Effluent Guidelines Program Plan (Final 2012 Plan) and the Preliminary 2014 Effluent Guidelines Program Plan (Preliminary 2014 Plan) were prepared pursuant to CWA Section 304(m), and provide a summary of EPA's review of effluent guidelines and pretreatment standards, consistent with CWA Sections 301(d), 304(b), 304(g), 304(m), and 307(b) and EPA's evaluation of indirect discharges without categorical pretreatment standards to identify potential new categories for pretreatment standards under CWA Section 307(b). For the Preliminary 2014 Effluent Limitations Guidelines Plan, EPA requests comments and information on the following topics: data sources and methodologies - in general, the Preliminary 2014 Effluent Guidelines Program Plan with regard to the 2014 Plan EPA specifically seeks comment on: study of Centralized Waste Treatment (CWT) facilities, study of Petroleum Refineries, preliminary Category Review of Metal Finishing, and, importantly, nanomaterials manufacturing and formulating. EPA reportedly is collecting data and information on the potential industrial wastewater discharge hazards associated with nanomaterials manufacturing and formulating. EPA "specifically requests public comment and stakeholder input relating to any information or data available on the wastewater hazards and discharges associated with the manufacture of nanomaterials and their use in manufacturing or formulating products, as well as any other information believed to be relevant." Comments are due November 17, 2014.

Senate Bill Seeks To Address Combined Sewer Overflows: A Senate bill introduced by Sherrod Brown (D-OH) on September 11, 2014, would provide up to $1.8 billion in grants to help communities tackle combined sewer and separate sanitary sewer overflows over the next five years. The Clean Water Affordability Act (S. 2797) also would give cities and towns experiencing combined sewer overflows up to 30 years to implement long-term control plans mandated by EPA. The grants authorized by the legislation could be used for a variety of purposes, including planning, designing, and constructing sewer systems to minimize both combined and separate sewer overflows. The bill also would allow permit holders that adopt EPA's flexible integrated planning approach for managing stormwater and wastewater to extend their NPDES permits up to 25 years, instead of the current five-year permits. Under the bill, EPA would be required to revise within one year the outdated affordability guidance it uses as a metric to gauge whether communities can afford to meet CWA obligations. The bill also would require EPA to allow cities and towns to use green infrastructure to meet their obligations to reduce combined sewer overflows.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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