Clean Water Act & WOTUS

 

EAB Backs EPA Power To Make Existing CWA NPDES Permits More Lenient. According to Inside EPA, “EPA’s Environmental Appeals Board (EAB) has upheld a 2017 Clean Water Act (CWA) permit that loosened discharge limits on nutrients for a New Mexico wastewater treatment plant, rejecting claims that it violates the law’s anti-backsliding provisions and bolstering the agency’s freedom to make existing CWA permits more lenient. The unanimous March 12 EAB decision in the case In re: City of Ruidoso Downs and Village of Ruidoso Wastewater Treatment Plant (WWTP) finds that EPA’s updated permit for the facility is lawful despite its less-stringent nutrient limits because the new terms were at least partly based on an updated total maximum daily load (TMDL) cleanup plan for the nearby Rio Ruidoso. ‘[T]he Region acted reasonably in relying on the newly updated 2016 TMDL to revise the nutrient limits and conclude that the Permit would assure attainment of, and not result in a violation of, the applicable water quality standards,’ reads EAB’s decision, authored by Judge Mary Kay Lynch for the panel of herself and Judges Kathie A. Stein and Mary Beth Ward. The permit challenger, Rio Hondo Land & Cattle Co., argued that a less-stringent permit runs afoul of the CWA’s bar on ‘backsliding’ -- which forbids revising permit limits to make them less stringent -- though with exceptions.” [Inside EPA, 3/14/19 (=)]

 

PFAS

 

Carper: DOD Pushing Weaker Chemical Rules. According to Politico, “The top Democrat on the Environment and Public Works Committee is urging EPA to resist pressure from the Defense Department to weaken cleanup standards for two toxic PFAS chemicals. In a letter to EPA Administrator Andrew Wheeler sent yesterday, Sen. Tom Carper of Delaware cited ‘sources’ who told him that the Defense Department, NASA, and Small Business Administration are pushing EPA to weaken draft groundwater cleanup standards for the chemicals PFOA and PFOS — a document that has been stalled in interagency review at the White House since August 2018. POLITICO reported in January that the guidelines EPA sent to the White House for review would require contaminated sites like bases and manufacturing sites to be cleaned up when combined concentrations of the chemicals exceed 70 parts per trillion. But in the letter, Carper said DoD is pushing for that standard to be raised to 400 parts per trillion — more than five times the EPA level, which is based on the safe level of exposure in drinking water that EPA set in a health advisory. Carper also wrote that sources said DoD is pushing for the level to apply just to a single chemical, rather than their combined concentrations. ‘EPA has reportedly resisted these weakening measures. However, my office has learned that DOD and NASA continue to refuse to agree to take any measures to remediate contamination caused by their activities unless the measured levels of PFOA and PFOS exceed 400 ppt,’ Carper wrote.” [Politico, 3/14/19 (=)]

 

As EPA, DOD Battle, New Jersey Adopts Strict Groundwater PFAS Level. According to Inside EPA, “New Jersey regulators have set strict health-based groundwater cleanup standards for two common per- and polyfluoroalkyl substances (PFAS), adopting interim levels that are forty times more stringent than those being pushed by the Defense Department (DOD) in an ongoing fight with EPA over federal cleanup levels. The Garden State’s action marks the latest sign that states facing PFAS contamination are not waiting for EPA to take action to address the contaminants, continuing to expand a patchwork approach on the substances. The New Jersey Department of Environmental Protection (NJDEP) March 13 set new interim specific groundwater quality standards for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) at 10 parts per trillion (ppt), effective immediately, with the department’s site remediation program saying in a March 13 notice the standards will apply to all cleanup sites. ‘If either or both PFOA or PFOS are detected in ground water at concentrations exceeding their respective interim specific ground water standard, then a remedial investigation and, if necessary, a remedial action of ground water shall be conducted pursuant to’ New Jersey site remediation rules, the notice says. It also calls for sites to be evaluated to determine if PFOA or PFOS were likely to have been manufactured, used, handled, stored, disposed or discharged at the site.” [Inside EPA, 3/14/19 (=)]

 

EPA Takes Initial Steps On PFAS Contamination Before Superfund Listing. According to Inside EPA, “EPA has begun to sample for potential contamination of two per- and polyfluoroalkyl substances (PFAS) at Superfund sites even before it lists the chemicals as ‘hazardous substances,’ suggesting it could move quickly to require cleanup at sites where the agency had previously committed not to and where prior mandates are addressed. EPA Region 2 Deputy Administrator Walter Mugdan told attorneys last month at an environmental continuing legal education forum that the region is now conducting ‘a sampling’ for PFAS. Mugdan was responding to a comment from private practice attorney Robert Fox, who told a Feb. 7 American Legal Institute-Continuing Legal Education (ALI-CLE) environmental law conference in Washington, D.C., that EPA’s plan to list perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as ‘hazardous substances’ under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) could spur regulators to require new cleanups when they conduct mandatory five-year reviews at sites where the chemicals were never sampled. ‘I may be extending my retirement in this profession by several years cause there’s going to be a lot of Superfund cases that were thought to be dead and buried that will come back to life again,’ he said. Earlier in his presentation, Mugdan noted that there will likely be a PFAS problem at nearly every airport where aqueous film-forming foam (AFFF) -- which contains PFAS -- was used or tested. AFFF is used to extinguish hydrocarbon fuel fires. ‘It’s widespread,’ he added.” [Inside EPA, 3/14/19 (=)]

 

Toxic Algae

 

AP | Ohio Governor Wants Nearly $1b To Combat Toxic Algae In Lake Erie. According to KDKA, “Ohio’s governor is proposing spending nearly $1 billion to combat the toxic algae in Lake Erie and to protect the state’s other lakes and rivers. Republican Gov. Mike DeWine says he wants to set aside $900 million from this year’s new state budget for water quality projects over the next 10 years. DeWine said Thursday that he expects the bulk of the money will go toward controlling the algae in Lake Erie that has become a growing threat to drinking water. The governor says committing the money now for water projects will allow the state to look at long-term solutions. He says some of the money will go toward helping farmers reduce fertilizer runoff and toward creating more wetlands to filter pollutants before they reach the state’s streams and rivers.” [KDKA, 3/14/19 (=)]

 

Misc. Waterways

 

N.M. State Engineer: 'We Need To Protect Our Water'. According to E&E News, “New Mexico’s top water official said yesterday he will team with the attorney general as a legal fight simmers with Texas and the U.S. government over management of the Rio Grande. State Engineer John D’Antonio spoke during a confirmation hearing before a key legislative committee, saying he met this week with state Attorney General Hector Balderas as lawyers prepare to brief a special master appointed by the U.S. Supreme Court. D’Antonio told lawmakers the fight over the river is complicated but New Mexico has strong technical arguments and needs to be aggressive in making its claims. ‘I do hold some optimistic views on a settlement if we can get there,’ he said, cautioning lawmakers that the state is still preparing to line up technical experts and depositions that will help make its case. ‘We need to protect our water,’ he said. Texas wants New Mexico to stop pumping groundwater along the border so that more of the Rio Grande could flow south to farmers and residents in El Paso. Critics contend the well pumping depletes the aquifer that would otherwise drain back into the river and flow to Texas. New Mexico filed its own counterclaims last year. The state says Texas is violating the interstate compact governing the Rio Grande by allowing unrestricted pumping and other diversions on its side of the border and therefore aggravating demands on the river.” [E&E News, 3/14/19 (=)]

 

 

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