December 1, 2006

Provided by the Water Environment Federation, Alexandria, VA

USEPA and Friends of the Earth Urge Supreme Court Not to Review TMDL Decision
On November 24, the U.S. Environmental Protection Agency (EPA) and Friends of the Earth, represented by Earthjustice, filed separate briefs with the Supreme Court arguing against review of the U.S. Court of Appeals for the District of Columbia Circuit decision in April that the word "daily" means "every day" in the Clean Water Act for total maximum daily loads (TMDLs).  The DC Water and Sewer Authority filed a certiorari petition with the Supreme Court July 24 seeking review of the case, and the National Association of Clean Water Agencies submitted an amici curiae brief to the high court.  Both argued that the decision places a burden on wastewater utilities, weakens the national TMDL program, and creates a split between appellate circuits on how TMDLs should be expressed.  In Natural Resources Defense Council Inc. v. Muszynski, the 2nd U.S. Circuit Court of Appeals ruled that the term TMDL is open to a broader range of meanings than discharge loads expressed in daily increments. 

EPA believes it can manage the decision using the approach outlined in a memo issued November 15; by requesting daily load allocations in all TMDLs but allowing them to be implemented through permits in non-daily ways.  "The court of appeals erred in holding that the [Clean Water Act] requires EPA to establish TMDLs as daily load allocations," EPA wrote in its brief. "Nevertheless, the court's decision does not warrant this Court's review.  EPA recently issued a nationwide guidance for expressing TMDLs as daily loads. As a result, future controversies about the meaning of the CWA's provisions for TMDLs will likely arise in significantly different contexts."  Fear that a Supreme Court ruling on the case might require a major overhaul of the TMDL program is one of the reasons for EPA’s position.  (SRT)

Federal Court Stops Kern County Ban of Los Angeles Biosolids
A federal judge in Los Angeles issued an opinion on November 22 that allows the City of Los Angeles and other Southern California agencies, businesses, and farmers to continue the land application of biosolids on farmland in Kern County. The court issued a preliminary injunction that stops Kern County from enforcing its “Measure E” ordinance passed by voters in June, which would have halted all land application of biosolids beginning early next year. The injunction finds that the ban was illegal and biosolids are safe.  The 24 page opinion by U.S. District Judge Gary Alan Feess granted the request of the City and plaintiffs for a stay of the Kern County biosolids ban while the case awaits trial. Judge Feess ruled that a preliminary injunction is justified because Measure E is likely illegal on three separate grounds – it violates the Commerce Clause of the U.S. Constitution by discriminating against biosolids from metropolitan Los Angeles, it undermines California law that mandates recycling, and it exceeds Kern County’s Police Power authority to regulate biosolids.  The court also found “no evidence at all” of environmental harm to Kern County from the two farms that recycle biosolids. Judge Feess summarized that “while applying sewage sludge to agricultural land may provoke a visceral response in lay observers, the available evidence suggests that the practice has been undertaken safely throughout the United States without any indication of detrimental environmental or health impacts, and indeed is the most environmentally sound method of managing the material.”
 
For more information on this story, visit the National Biosolids Partnership web page: www.biosolids.org.   To read the court order and opinion granting the preliminary injunction, visit: http://www.biosolids.org/docs/KernCounty_ORDER_OPINION_Granting_PrelimInjun
_LA_112206.pdf.  (SJH)

EPA Creates Award to Recognize Leadership in Water Quality Trading
On November 20, EPA announced the initiation of a new awards program to recognize outstanding leadership in designing or implementing water quality trading programs and policies.  The Blue Ribbon Water Quality Trading Awards will identify initiatives that have achieved or will achieve environmental and economic benefits and that most closely align with U.S. EPA's Water Quality Trading Policy.  The Award is designed to help EPA promote water quality trading and create a network of trading leaders throughout the country.  Nominations must be received by January 16, 2007.  For more information about the Blue Ribbon Water Quality Trading Awards Program, visit http://www.epa.gov/owow/watershed/trading/awards.html. (SRT)

EPA Plans to Regulate Nanoscale Silver Sold to Kill Germs
EPA has decided to regulate a class of consumer items that use microscopic nanoparticles of silver to kill bacteria.  The decision was first reported last week in the Daily Environment Report, followed by a story in the Washington Post.  EPA will regulate nanoscale silver used in washing machines to kill bacteria as a pesticide, and plans to issue a Federal Register notice soon.  As a result, companies using nanoscale silver, like Samsung, which has a washing machine that uses silver ions in the wash and rinse cycles, will be required to register their product or seek an exemption from federal rules governing pesticides.  Wastewater utility associations, environmental groups, and state regulators have advocated regulation of the silver particles. (SRT)

EPA Recognizes Companies and Individuals for Water Efficiency
EPA announced on November 27 the winners of a new awards program aimed at recognizing outstanding leadership and innovation in water efficiency. Winners of the first Water Efficiency Leader (WEL) Awards were chosen by a panel of national water experts and based on three criteria: leadership, innovation, and water saved.  EPA has developed the WEL Awards in addition to a variety of other initiatives, such as a product labeling program and a national organization to foster water efficiency.  The program allows EPA to document best practices, share information, and create a network of water efficiency leaders. Award recipients gain national recognition for their accomplishments, the opportunity to learn from other leaders, and the right to market themselves as recipients of this award.  To view the Water Efficiency Leader Awards, visit: http://www.epa.gov/water/wel/.  (SJH)

EPA Issues Final Regulation on Application of Pesticides to Waters of the US
In the November 27 Federal Register, EPA issued a final regulation stating that the application of a pesticide in compliance with relevant requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require a National Pollutant Discharge Elimination System (NPDES) permit in two specific circumstances. The first circumstance is when the application of the pesticide is made directly to waters of the U.S. to control pests that are present in the water. The second circumstance is when the application of the pesticide is made to control pests that are over or near waters of the U.S. This rulemaking is based on the Agency's interpretation of the definition of the term “pollutant” under the CWA as not including such pesticides. This final rulemaking replaces EPA's previously published Interim and Final Interpretive Statements on the issue. The final regulation is effective on January 26, 2007. To view the Federal Register notice, visit: http://www.epa.gov/fedrgstr/EPA-PEST/2006/November/Day-27/p20002.htm. (SJH)

EPA Inventory of Sources and Releases of Dioxin-Like Compounds now Available
EPA announced in the December 1 Federal Register that it has released a final report titled, “An Inventory of Sources and Environmental Releases of Dioxin-Like Compounds in the U.S. for the Years 1987, 1995 and 2000” (EPA/600/P-03/002F), which was prepared by the National Center for Environmental Assessment (NCEA) within EPA's Office of Research and Development (ORD).  The purpose of this report is to present a comprehensive inventory and overview of sources and environmental releases of dioxin-like compounds in the United States. The major identified sources of environmental releases of dioxin-like compounds are grouped into six broad categories: combustion sources, metals smelting, refining and process sources, chemical manufacturing sources, natural sources, and environmental reservoirs. The document will be available electronically through the NCEA Web site at http://www.epa.gov/ncea.  To view the Federal Register notice, visit: http://www.epa.gov/fedrgstr/EPA-RESEARCH/2006/December/Day-01/r20294.htm. (SJH)

EPA Meeting of National Advisory Council Environmental Technology Subcommittee
EPA announced in the November 28 Federal Register that its National Advisory Council for Environmental Policy and Technology (NACEPT) Environmental Technology Subcommittee will hold a two-day open meeting on Thursday, December 7 and Friday, December 8 at the Marriott Crystal City Hotel in Arlington, VA. The meeting is open to the public. NACEPT provides advice and recommendations to the Administrator of EPA on a broad range of environmental policy, technology, and management issues. The Environmental Technology Subcommittee was formed to assist EPA in evaluating its current and potential role in the development and commercialization of environmental technologies. The purpose of the meeting is to discuss the Subcommittee's draft report on these issues. A copy of the agenda for the meeting will be posted at http://www.epa.gov/ocem/nacept/cal-nacept.htm. (SJH)