ADEQ Suspends Issuance of General Pesticide Permit For Arizona

On February 25, 2011, ADEQ issued its draft Arizona Pollutant Discharge Elimination System (AZPDES) Pesticide General Permit (PGP) for public comment. The public comment period closed on March 29, 2011. Subsequently, EPA and others petitioned the US Court of Appeals for an extension of the April 9, 2011 permit effective date deadline. On March 28, 2011 the court granted the petition delaying the date by which PGP coverage will be required until October 31, 2011.

According to the most recent information provided by EPA, the final federal PGP will be published on approximately July 30, 2011, allowing sufficient time for States to align final federal permit requirements with their State general permit in advance of the new October 31, 2011 permit effective date.

As a result, ADEQ has decided to suspend further AZPDES PGP issuance activities. Upon issuance of the final federal PGP, ADEQ plans to review and evaluate all comments received during the ADEQ comment period and consider whether revisions to the prior issued draft AZPDES PGP are appropriate.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Proposed Cooling Intake Standards Under Section 316b

As required by Section 316(b) of the Clean Water Act and pursuant to a settlement agreement, the U.S. Environmental Protection Agency (EPA) has released for public comment standards to protect fish and other aquatic organisms potentially drawn into cooling water systems at large power plants and factories. Safeguards against impingement will be required for all facilities above a minimum size; closed-cycle cooling systems may also be required on a case by case basis when, based on thorough site-specific analysis by permitting authorities, such requirements are determined to be appropriate. EPA is proposing this regulation as a result of a settlement agreement with Riverkeeper, Inc. and other environmental groups.

Technology Standards:

Fish Impingement: Existing facilities that withdraw at least 25 % of their water exclusively for cooling purposes and have a design intake flow of greater than 2 million gallons per day (MGD) would be required to reduce fish impingement under the proposed regulations. The owner or operator of the facility will be able to choose one of two options for meeting best technology available requirements for reducing impingement. They may conduct monitoring to show the specified performance standards for impingement mortality of fish and shellfish have been met, or they may demonstrate to the permitting authority that the intake velocity meets the specified design criteria. EPA estimates that more than half of the facilities that could be impacted by this proposed rule already employ technologies that are likely to put them into compliance with the proposed standard.

Fish Entrainment: EPA is proposing a site-specific determination to be made based on local concerns and on the unique circumstances of each facility. This proposed rule establishes requirements for the facility owner to conduct comprehensive studies and develop other information as part of the permit application, and then establishes a public process, with opportunity for public input, by which the appropriate technology to reduce entrainment mortality would be implemented at each facility after considering site-specific factors. Because new units can incorporate the most efficient, best-performing technology directly into the design stage of the project, the proposed rule would require closed-cycle cooling (cooling towers) for new units at existing facilities, as is already required for new facilities. The public will be able to comment on the proposed rule upon its publication in the Federal Register. EPA will conduct a 90 day comment period, and consider comments before taking final action on the proposal. Final rules must be published by July 27, 2012.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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State Dashboards To Review Clean Water Act Data and Actions

The U.S. Environmental Protection Agency (EPA) has released updated data and a mapping tool to compare water quality trends over the last 2 years. The web-based, interactive map includes “state dashboards” that provide detailed information for each state, including information on facilities that are violating the Clean Water Act and the actions states are taking to enforce the law and protect people’s health.

The state dashboards incorporate data for both large and small sources of water pollution, and information from EPA’s 2009 Annual Noncompliance Report. Users can review and compare information on the inspections conducted by both EPA and the state agencies, violations and enforcement actions in their communities over the past two years and the penalties levied in response to violations. EPA’s Enforcement and Compliance Online (ECHO) database provides fast, integrated searches of EPA and state data for more than 800,000 regulated facilities, including information on inspections, violations and enforcement actions.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Requirement to Meet Federal Law In State WPDES Permits

The Wisconsin Supreme Court has determined that Wisconsin Department of Natural Resource’s (WDNR) authority and the scope of its administrative review of Wisconsin Pollutant Discharge Elimination System permit challenges is limited to challenges based on state law and not whether the permit complies with federal law.

Petitioners had challenged a WPDES permit issued by WDNR, claiming that the permit did not comply with federal law and that state statutes require WDNR to ensure all WPDES permits comply with federal law. The WDNR refused to grant a hearing on the federal law challenges, arguing WDNR’s authority only allowed it to review WPDES permit challenges based on state law.

The Wisconsin Supreme Court agreed with the agency that, if followed to its logical conclusion, the petitioner’s position would render Wisconsin’s delegated CWA authority and its WPDES permit program moot. The court noted that EPA has authority to review and object to every WPDES permit issued by WDNR. In this case, EPA reviewed the proposed WPDES permit and also reviewed Petitioner’s claim that the permit failed to comply with federal law, yet EPA found no reason to object to the permit. Moreover, the court clarified that the proper remedy for Petitioner’s federal law challenges is to petition EPA to review or object to the WPDES permit issuance, and thereafter to appeal any EPA decision in the appropriate federal district court.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Court Ruling Limits Requirement For CAFO To Apply For NPDES Permit

In a case involving the requirement for Concentrated Animal Feeding Operations (CAFO) to obtain a National Pollutant Discharge Elimination System (NPDES) permit, the U.S. Fifth Circuit Court of Appeals has issued an opinion that there is no “duty to apply” for a NPDES permit in the Clean Water Act. Only CAFOs that have to obtain permits are those that are actually discharging pollutants to waters of the United States.

EPA revised the CAFO Rules in 2003, and required all CAFOs with the “potential to discharge” to obtain a NPDES permit. The industry challenged that requirement and the U.S. Court of Appeals for the Second Circuit agreed that the Clean Water Act did not authorize EPA to regulate facilities that do not actually discharge. In 2008, EPA issued a revised rule, which required all CAFOs that discharge or “propose to discharge” to obtain a NPDES permit. The current ruling relates the 2008 revised CAFO rules.

The 2008 CAFO, a facility operator failing to apply and obtain a permit could be liable for the actual discharge and also for its failure to apply for a permit. The court determined that this provision beyond the scope of EPA’s authority, because the Clean Water Act lists specific violations a facility can be liable for, which does not include failure to apply for a NPDES permit. The Court rejected a challenge to the 2008 CAFO Rule concerning the inclusion of Nutrient Management Plans as an enforceable provision and regulation of land application areas in a CAFO NPDES permit.

The Court ruling applies to EPA CAFO rules only; individual States may have additional requirements which could require applications from CAFOs.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Extension Of Deadline For Pesticide General Permit

U.S. Environmental Protection Agency (EPA) has requested an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA requested that the deadline be extended from April 9, 2011 to October 31, 2011. According to EPA, during the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act.

EPA is developing a pesticide general permit in response to the 6th Circuit Court’s 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and therefore will require a permit under the Clean Water Act as of April 9, 2011.

EPA has made the extension request to allow sufficient time for the agency to engage in Endangered Species Act consultation and complete the development of an electronic database to manage requests for coverage under the Agency’s general permit. It also allows additional time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements.

On finalized, EPA’s general permit will cover pesticide discharges to waters of the U.S. in MA, NH, NM, ID, OK, AK, DC, most U.S. territories and Indian country lands, and many federal facilities.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Proposed Regulation Under 2008 Clean Boating Act

The U.S. Environmental Protection Agency (EPA) is seeking public comment from boaters and other stakeholders to help develop proposed regulations to reduce water pollution and the spread of invasive species and to mitigate adverse effects from recreational boat discharges, such as bilgewater, graywater and deck runoff. Development of regulations was required by the 2008 Clean Boating Act. In contrast to permits required for commercial vessels, the act directs EPA to develop and promulgate management practices for recreational vessels.

Based on the input received, EPA will develop appropriate management practices and performance standards that protect waterways. The U.S. Coast Guard will establish regulations governing the design, construction, installation and use of management practices.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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Iowa DNR Water Quality Standards For Lakes

The Iowa DNR has proposed criteria for evaluating Iowa lakes used for swimming. The proposed standards measure the transparency of the water and recommend maintaining water clarity of a little more than 3 feet (1 meter) in at least 75 % of the measurements. A standard of maintaining chlorophyll-a levels not to exceed 25 ug/L in 75 % of the measurements taken is also being proposed. Both standards are based on measurements taken during the summer recreational months between Memorial Day and Labor Day.

These standards were initially proposed in January 2010 [click here for more information]

The standards will apply to 127 lakes in Iowa that have a maintained beach, appear on the list of Significant Public Owned Lakes or have a mean depth of more than 3 meters (9.9 feet).

A series of public meetings to gather input from citizens regarding proposed criteria are scheduled throughout the state between March 23 and 31. Written suggestions or comments on the proposed amendments are being accepted through May 15, 2011.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

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