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EPA Must Revisit Sewage Incineration Rule, DC Circ. Hears

EPA Must Revisit Sewage Incineration Rule, DC Circ. Hears

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Law360, Washington (May 03, 2013, 6:11 PM ET) — The Sierra Club and a municipal wastewater treatment coalition urged the D.C. Circuit on Friday to force the U.S. Environmental Protection Agency to reconsider its sewage sludge incineration performance standards and emission limits, claiming the agency’s current system is flawed.

But the two groups asked a three-judge panel for different outcomes. While the Sierra Club claimed the current emissions and performance standards are set too low and won’t require the incinerators to make any changes or technological advancements, the National Association of Clean Water Agencies argued that the EPA has no business regulating incinerator emissions in the first place.

“Vacature is the correct remedy, both because of the statutory problem and EPA cannot justify a new floor,” Jeffrey A. Knight of Pillsbury Winthrop Shaw Pittman LLP, counsel for the NACWA, said during Friday’s oral arguments.

According to Knight, the EPA has promulgated various conflicting theories of how it can regulate public wastewater treatment plants and their sewage sludge incineration units under the Clean Air Act, which nix the emissions standards at issue.

The rule, published in March 2011, set new limits for nine pollutants under the Clean Air Act: cadmium, carbon monoxide, hydrogen chloride, lead, mercury, nitrogen oxides, particulate matter, polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans, and sulfur dioxide.

But those requirements take away municipalities’ discretion to create their own wastewater treatment programs, Knight said.

“Congress intends for local municipalities to have flexibility in determining sewage treatment,” he told the panel.

But EPA counsel Michele L. Walter disagreed, claiming the the EPA’s solid waste and sewage sludge definitions merely showed that the agency didn’t want to regulate all solid waste emitted from residences, as it would create an absurd regulatory outcome.

“This is not a novel interpretation by EPA,” she said. “What EPA has done has not taken away the local control.”

While the NACWA persisted, alleging sewage sludge is an entirely separate substance than solid waste, Circuit Judge Merrick B. Garland said the association was making too big a deal of the issue, as one substance derives from another.

“This is not like alchemy. They’re not turning lead into gold,” he said.

Although the NACWA requested that the panel vacate the EPA rule, the Sierra Club balked, as that could result in losing all emissions standards for the facilities.

“Their standards, as weak as they are, will protect public health,” said James S. Pew, counsel for the Sierra Club.

Instead, Pew recommended that the standards be remanded so the EPA can take a closer look at sewage sludge incinerator technology and set more appropriate emissions floors for the industry.

“One thing you have here is how little the standards affect sewage sludge incinerators,” Pew said. “EPA has said the standards won’t require sewage sludge incinerators to reduce their emissions at all.”

The EPA denied both groups’ petitions for reconsideration in April 2012.

Judges Merrick B. Garland, Janice Rogers Brown and David B. Sentelle sat on the panel for the D.C. Circuit.

The Sierra Club is represented by James S. Pew and Jonathan A. Wiener of Earthjustice Legal Defense Fund. The NACWA is represented by Jeffrey A. Knight and Peter H. Wyckoff of Pillsbury Winthrop Shaw Pittman LLP.

The case is National Association of Clean Water Agencies et al. v. Environmental Protection Agency, case number 11-1131, in the U.S. Court of Appeals for the District of Columbia Circuit.

–Additional reporting by Juan Carlos Rodriguez. Editing by Andrew Park.

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