State & Local News Vol. 23, No. 1, Fall 1999 ENVIRONMENTAL UPDATE By Beate Bloch Municipal and other wastewater treatment authorities take heed: two new rules recently proposed by the U.S. Environmental Protection Agency ("EPA" or "the Agency") may affect your activities as both a discharger of water pollutants and as an enforcement authority for indirect discharges to your wastewater treatment plant (WWTP). First, EPA's proposed Total Maximum Daily Load (TMDL) rule would require that, among other things, states, territories, and authorized tribes list impaired waterways and develop TMDLs to restore those waterways to water quality standards. As explained below, TMDLs could result in the imposition of more stringent effluent limitations for all dischargers to a water body. Second, EPA's proposed revisions to its water quality and National Pollutant Discharge Elimination System (NPDES) regulations grant the Agency greater control over NPDES permitting decisions-even in states authorized to conduct their own NPDES programs. See www.epa.gov/owow/tmdl. The public comment period will close sixty days after the proposed rules appear in the Federal Register. TMDL Rule A TMDL is the sum of allowable loads of a single pollutant from all contributing point sources (e.g., industry, WWTPs) and nonpoint sources (e.g., agricultural and urban runoff). In setting TMDLs for each regulated waterway, the state must include a margin of safety and account for seasonable water quality variations, background pollutant levels, future growth, and reasonably foreseeable increases in pollutant loadings. After deducting these amounts, each discharger effectively receives a "quota" that caps the discharger's contribution of that pollutant to the water body. Given the threshold deductions, TMDLs may result in a "ratcheting down" of allowable effluent limitations for each contributor in order to meet water quality standards. Consequently, WWTPs may become subject to stricter effluent limitations-and, in turn, may need to impose more stringent discharge levels on indirect dischargers to their plants. TMDLs have long been required by section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), although increased focus on this issue is relatively recent. Section 303(d) mandates that states develop lists of water bodies that fail to meet quality standards even after point source dischargers have applied required control technologies. States also must establish a prioritized ranking of its list, and develop a TMDL for any effluent for which water quality has not been attained. Environmentalists have sued EPA in thirty-four states to compel enforcement of these statutory requirements. Consequently, EPA is now under court order or consent decree to ensure that states establish TMDLs. Among other things, EPA's proposed TMDL rule clarifies and revises existing regulations to: Ensure specificity in section 303(d) listing methodologies; Require more comprehensive lists of water bodies; Require that states establish, and submit to EPA, schedules for establishing TMDLs with no longer than a fifteen year timeframe for all water body and pollutant combinations; Ensure that states establish TMDLs for "high priority" waterways before doing so for lower priority waters; Encourage states to establish TMDLs for high priority waters within five years; Require an EPA-approvable TMDL implementation plan; and Ensure public participation in listing, waterway prioritization, and TMDL development activities. NPDES/Water Quality Rule To facilitate TMDL development and implementation, EPA also has proposed companion revisions to its water quality and NPDES regulations. Among other things, the proposed revisions: Give EPA authority to object to, and ultimately reissue, expired and administratively continued permits in NPDES-authorized states where reissuance is necessary to ensure reasonable further progress toward attaining water quality standards; Give EPA authority to designate certain operations (e.g., concentrated animal feed operations) as point sources, thereby requiring them to obtain NPDES permits; and Require that a large new or significantly expanding discharger obtain an "offset" prior to discharging-generally, at one-and-one-half times the proposed discharge. An offset is a form of effluent trading involving an increased discharge of a particular pollutant from one source, in exchange for a decreased discharge of the same pollutant from another source. Implications for WWTPs Despite the general consensus that more must be done to attain water quality standards, determining how to achieve, and who should pay the cost of, such attainment is controversial. EPA's TMDL rule marks the Agency's initial attempt at nationwide enforcement of this statutory requirement. Furthermore, including diffuse nonpoint sources is bound to be controversial. At least one trade organization has questioned whether the new rules will result in municipal WWTP ratepayers carrying a disproportionate share of the burden of restoring water quality. Also, local governments should be vigilant regarding whether the rules are likely to chill industrial expansion and redevelopment-and to the feasibility and potential costs of technology that may be required. Consequently, activity during the public comment period is destined to be vigorous as TMDL litigation plaintiffs, states, local governments, industry, and others weigh in on this issue. Want More Information? Attend . . . The Section's "Hot Topics in State and Local Government Law" program at its Fall Meeting and Program (for more information, see page 10): October 15, 1999 University of Missouri-Kansas City School of Law Kansas City, Missouri The Section's Environmental Law Committee will feature an overview of Clean Water Act-and Clean Air Act-issues relevant to local government attorneys, including a TMDL update. For more information, contact Jackie Baker at the Section office at 312/988-5652 or jlbaker@staff.abanet.org. Stephanie Brown is a Branch Chief in U.S. EPA's Office of Site Remediation Enforcement in Washington, D.C. The opinions expressed in this article do not necessarily represent those of U.S. EPA. Ms. Brown also is Chair of the Section's Environmental Law Committee. She may be reached at 202/564-2596 or brown.stephanie@epa.gov. State & Local Law News home page | Table of Contents State and Local Government Law home page ABA Network home page