Presentation Transcript

1. Arkansas Water Works & Water Environment Association2013 Conference

   Top 10 Legal/Environmental Issues for the Water/Wastewater Facility Manager Walter G. Wright, Jr. MITCHELL WILLIAMS LAW FIRM Little Rock, Arkansas (501) 688-8839 wwright@mwlaw.com
2. Source of information that often addresses issues relevant to water and wastewater facilities: Arkansas Environmental, Energy and Water Law Blog http://www.mitchellwilliamslaw.com/category/environmental-blog Three posts five days a week
3. The availability of water/wastewater services are essential for a community’s sustainable growth. The design, construction, operation, maintenance and management of facilities that provide wastewater services and water continue to generate complex issues. Purpose of this presentation is to again highlight a few current legal and environmental issues that can materially affect water and wastewater treatment facilities. Some new issues --- Some old favorites
4. Accelerating Challenges for Water/Wastewater Utilities Environmental Increasing population and limited resources = increasing environmental pressure Increasing environmental pressures = more stringent environmental regulations (Example – water availability affected by impairment or use/withdrawal) Economic Aging infrastructure and increased economic pressure = gap between needs and resources (shrinking revenues/resistance to fee increases) Legal Constant threat of lawsuits/litigation Both governmental and private (produce liability – supplying water, etc.)
5. I. Water Flow Issues? Effect on water quality Variability in surface water flow (discharge from rivers) can impact water quality Most NPDES permits are issued based on surface water flows that historically are needed to provide adequate dilution to point discharges of pollutants to the river system. For example, in the Ga., Fla. And Ala. Conflict, the Apalachicola River and Bay, reduced flows increase salinity in the bay, thereby adversely impacting the bay ecosystem, including oysters and mussels, and affecting the seafood industries in Florida. Red River Compact – Texas v. Oklahoma U.S. Supreme Court will address sovereign rights of parties to the Compact. Ability of a state to resist out of state use of its water? Continuing Role of Corps of Engineers The federal Water Supply Act maintains that water supply is a state and local responsibility. By authorizing COE to make the appropriate allocations or reallocations among the multiple-project purposes at each reservoir, COE arguably takes on the role of water provider. COE becomes an important source of water for municipal, industrial, and agricultural use. Important to understand role of COE in competing with other users. Recognize the COE is becoming increasingly involved in issues of water allocation Sometime involved with watershed management and related studies affecting a key role in water distribution and allocation.
6. Flow (continued) (4) Water: Action alleging Texas Commission on Environmental Quality Officials violated Endangered Species Act in Their Management of Flow of Fresh Water into the San Antonio Bay The Arkansas Project, a nonprofit corporation brought an action pursuant to the Endangered Species Act (“ESA”) against several Texas Commission on Environmental Quality officials. The Project alleged that TCEQ officials failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter resulted in a “taking” of whooping cranes, an endangered species, in violation of Section 9 of the ESA. The Project argued that the reduced flow of fresh water into the ecosystem increased salinity, reducing the food and water supply for the whopping cranes, thus weakening and ultimately resulting in the death of 23 whopping cranes. The TCEQ officials stated the Project is not entitled to recovery under Section 9 of the ESA because imputing liability to regulatory agencies for merely carrying out their regulatory duties runs contrary to the ESA. The TCEQ officials also attempted to distinguish case law cited by the plaintiff arguing that the agency had almost no authority to modify or revoke water permits because such permits reflect property rights that are constitutionally protected under Texas law. The Project argued that permit holders have rights in water, but ultimately water is the property of the state. The TCEQ officials rejected the argument that Section 9 of the ESA does not extend to suits brought against regulators whose actions indirectly result in the taking of an endangered species.
7. Flow (continued)(5) TMDL/Stormwater: Fairfax County Virginia and Virginia Department of Transportation Challenge EPA TMDL Section 303(d) of the Clean Water Act states are required to develop lists of impaired waters. Impaired waters do not support applicable water quality standards that have been set by the state. In July, 2012, Fairfax County Virginia and the Virginia Department of Transportation filed suit against EPA challenging a TMDL established for Accotink Creek. Virginia argues that the EPA TMDL unlawfully limits the flow of water in Accotink Creek as a “surrogate” for the pollutant sediment and by similarly limiting flows from their draining systems (i.e., MS4s). The federal district court agreed.
8. II. Financing Proposal for a Water Infrastructure Finance and Innovation Authority (WIFIA). - Senate Committee on Environment and Public Works approved S. 601, the Water Resources Development Act of 2013 Tile X of this bill creates a five year pilot program for WIFIA. The bill authorizes $50 million annually for EPA and another $50 million annually for the Corps of Engineers. Those agencies will make independent decisions and support different projects, but there is also a provision for them to jointly fund projects (such as reservoirs). AWWA projects level of authorization should support at least $500 million annually in low-interest loans for EPA and the same for the Corps. The WIFIA program will offer loans or loan guarantees at Treasury rates, with 35 years to repay after substantial project completion. The minimum project size is $20 million. Water and wastewater utilities and authorities are eligible, as are state finance authorities (SRFs). Eligible projects include pipe replacement or rehabilitation, new or upgraded treatment plants, CSO and wastewater projects, reuse desalination, capital projects to improve energy efficiency, and new water supply projects.
9. Financing (continued) (2) Financing rates are at historic lows. As a result, utilities with bonds or other indebtedness (such as ADFA or ANRC loans) outstanding at higher rates may consider refinancing the loans or refunding the bonds with a lower interest rate product. Also some different financial products available for shorter-term financing (like 5 year terms) with good rates that might work for equipment purchases or for upgrading meters, etc. that aren’t typically financed over 20-30 years. (3) Is aging utility infrastructure a legal liability/risk? Aging utility infrastructure is a national problem. Incidents involving natural gas and oil pipelines a warning for other distribution facilities Does the water/wastewater utility industry face similar problems as its own infrastructure continue to age? Degree of potential damage may be different but breaks can still result in possible injuries and loss of life, property, damage, etc.
10. III. OSHA Enforcement/Issues Increased Enforcement/Penalties Continued focus on Trenching (OSHA Trenching Initiative)
11. OSHA (continued)OSHA Appeal Referencing AWWA Guidelines In K.E.R. Enterprises case, an employer was pressure-testing a water pipe as part of a waterline installation project. Foreman noticed a small leak near a restraining gland and instructed two workers to tighten the T-bolts on the restraining gland. Pipe exploded, sending fragments flying. OSHA cited employer using Occupational Safety and Health Act’s general duty clause. OSHA alleged the employer failed to follow the restraining gland’s manufacturer’s installation instructions and for failing to adhere to guidelines in the American Water Works Association’s (“AWWA”) standards. The Commission reasoned that neither the instructions nor the standard contained a safety warning or suggested that failure to comply could lead to injury.
12. IV. Clean Water Act (1) Arkansas General Assembly (HB 1929) Addresses Reg 2 Mineral Standards Drink water designation for stream segments Limits default designation Specifies scientific/statistical principles in addressing mineral concentrations ADEQ Implementation Future EPA Action?
13. Clean Water Act (continued) (2) Potential Relationship to Water and Wastewater Utilities Water Availability in time of drought Reduced Instream Flows – impact to aquatic species, agriculture community Impact of trucking in water in water-scarce shales Impact on endangered species Wastewater Capacity for proper disposal Pre-treatment requirements High salinity and Total Dissolved Solids in Produced Water Examine oil and gas activities in service areas and either monitor or take action as appropriate AWWA Recommendations Conducting monitoring before and after hydraulic fracturing and other oil and natural gas development activities Preparing spill and/or accident response plans
14. Clean Water Act (continued)Shale Developments In March 2011 EPA released FAQs related to shale gas flow back and produced water discharge including how issues may be addressed under existing NPDES regulations http://www.epa.gov/npdes/pubs/hydrofracturing_faq_memo.pdf http://www.epa.gov/npdes/pubs/hydrofacturing_faq.pdf EPA recently announced that the Agency will initiate development of Categorical Pretreatment Standards under 304(m) of the CWA Coal Bed Methane Shale Gas Extraction Also quantity/use in some areas
15. Clean Water Act (continued)2012 Recreational Water Quality Criteria EPA released its 2012 recreational water quality criteria recommendations for protecting human health in all coastal and non-coastal waters designated for primary contact recreation use. EPA provides two sets of recommended criteria. Primary contact recreation is protected if either set of criteria recommendations are adopted into state water quality standards. The short-term and long-term measure of bacteria levels are used together to ensure that water quality is properly evaluated. A new rapid testing method can be used to determine if water quality is safe within hours of water samples being taken. EPA last issued ambient water quality criteria recommendations for recreational waters in 1986. EPA says the 2012 RWQC relies on studies that show a link between illness and fecal contamination in recreational waters. Based on the use of two bacterial indicators of fecal contamination, E. coli and enterococci. The RWQC consist of three components: magnitude, duration and frequency. The magnitude of the bacterial indicators are described by both a geometric mean and a statistical threshold value for the bacteria sample. The STV approximates the 90th percentile of the water quality distribution and is intended to be a value that should not be exceeded by more than 10 percent of the samples taken.
16. 2012 Recreational Water Quality Criteria There are no longer different criteria recommendations for different use intensities. EPA is providing information for states that want to adopt WQS based on a quantitative polymerase chain reaction (qPCR) method.
17. Clean Water Act (continued)(4) EPA Denies Environmental Groups Petition Requesting Establishment of New Technology-Based Nutrient-Based Limits as Part of Secondary Treatment Standards for POTWs Request cited CWA Section 304(d)(1) in asking the EPA to publish updated information on the degree of nutrient reduction attainable through secondary treatment of effluent discharged by municipal wastewater treatment plants. EPA states secondary treatment technology is not designed for nutrient removal. Found that a uniform set of nationally applicable, technology-based nutrient limits is not warranted at this time. Uniform national limits would require POTWs to incur high costs even where such costs are not necessary to protect water quality. The continuation of the EPA’s water-quality-based approach for controlling POTW nutrient discharges is warranted. EPA found the agency authorized states continue to make significant progress controlling POTW nutrient discharges through water quality-based permitting
18. Clean Water Act (continued)(5) Nutrients A number of initiatives are underway at the national level, as well as in geographically targeted areas Hypoxia Task Force Mississippi River Basin Initiative National Water Quality Initiative 2012 & 2013 Chesapeake Bay Watershed Initiative Gulf of Mexico Initiative (GOMI) Note Florida nutrient standards development
19. Clean Water Act (continued)Mississippi Rive Nutrients Limit Lawsuit UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ---------- ------- --------- ------ - ------ - ------- --------------- ----- x NATURAL RESOURCES DEFENSE COUNCIL, INC., MISSOURI COALITION FOR THE ENVIRONMENT, GULF RESTORATION NETWORK, ENVIRONMENTAL LAW & POLICY CENTER, IOWA ENVIRONMENTAL COUNCIL, TENNESSEE CLEAN WATER NETWORK, MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, SIERRA CLUB, WATERKEEPER ALLIANCE, INC., PRAIRIE RIVERS NETWORK, and KENTUCKY WATERWAYS ALLIANCE. Plaintiffs, No. 12 Civ. 1848 (PAC) - v. - ECF Case LISA P. JACKSON, Administrator of the United States Environmental Protection Agency, and THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants. ----------------- -------- -------------- ------ - ------- -------- ----x COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Introduction 1. Plaintiffs Natural Resources Defense Council ("NRDC"), Missouri Coalition for the Environment ("MCE"), Gulf Restoration Network ("GRN"), Environmental Law & Policy Center ("ELPC"), Iowa Environmental Council ("IEC"), Tennessee Clean Water Network ("TCWN"), Minnesota Center for Environmental Advocacy ("MCEA"), Sierra Club, Waterkeeper Alliance, Inc. ("Waterkeeper Alliance"), Prairie Rivers Network ("PRN"), and Kentucky Waterways Alliance ("KWA") (collectively "Plaintiffs") assert violations of the
20. Clean Water Act (continued)(6) Assessing Financial Capability for Municipal Clean Water Act Requirements January 2013 EPA memo stating agency is starting process working with local governments to clarify how the financial capability of a community will be considered when developing schedules for municipal projects necessary to meet Clean Water Act obligations. Identified several implementation issues, as well as more robust ways to present additional community-specific information within a financial capability analysis when considering a community’s ability to achieve the shared goal of clean water.
21. V. Safe Drinking Water ActConsumer Confidence Report Rule Electronic Delivery of the CCR Community water systems providers and primacy agencies have inquired as to whether the CCR Rule allows electronic delivery of the CCR to each customer. The EPA clarified that electronic delivery of CCRs is an acceptable way of complying with its requirement to “mail or otherwise directly deliver” CCRs, provided that certain conditions are met. A 2013 EPA Interpretive memorandum – Consumer Confidence Report Rule Delivery Options clarifies the requirements of the CCR Rule associated with the delivery of the CCR. The memorandum’s attachment, Consumer Confidence Report Electronic Delivery Options and Considerations, provides an overview of electronic delivery methods and describes approaches for community water systems to implement electronic delivery. Two allowable approaches a water system can use to provide electronic delivery: (1) a paper CCR delivery with a customer option to request an electronic CCR; or (2) electronic CCR delivery (e.g., e-mail) with a customer option to request a paper CCR
22. EPA Interprets CCR Rule To Have Certain Limitations Electronic delivery must provide the CCR in a manner that is “direct.” EPA interprets this rule requirement to mean that utilities can use paper or electronic communication (e.g., water bill) with URLs to meet their CCR requirement if the URL provides a direct link to the CCR, and if the communication prominently displays the URL and a notice explaining the nature of the link. In addition, the link must take the customer to the entire CCR so that the customer does not have to navigate to another webpage to find any required CCR content. Use of social media (e.g., Twitter or Facebook) directed at bill-paying customers does not meet the requirement to “directly deliver” since these are membership Internet outlets and would require a customer to join the website to read their CCR. The use of automated phone calls (e.g., emergency telephone notification systems) to distribute CCRs is not considered direct delivery, because the entire content of the CCR cannot be provided in the phone call. If a utility is aware of a customer’s inability to receive a CCR by the chosen electronic means, it must provide the CCR by an alternative means allowed by the rule. One member of the Association of California Water Agencies estimates that if just 50% of its consumers elect to receive the CCR electronically they would save $25,000 and a half a million sheets of paper. Note – Arkansas Department of Health has certain requirements as a delegated SDWA authority.
23. Safe Drinking Water Act/LeadCurrent SDWA Requirements SDWA 1417(a)(1)(A) In general. No person may use any pipe, pipe or plumbing filling or fixture, any solder, or any flux, after June 19, 1986, in the installation or repair of: (i) any public water system; or (ii) any plumbing in a residential or nonresidential facility providing water for human consumption, That is not lead free (within the meaning of subsection (d) The use prohibition in SDWA also applies to entities other than public water systems (PWS). PWS includes collection, treatment and storage in addition to distribution facilities under SDWA.
24. Reduction of Lead in Drinking Water Act of 2011 Amends SDWA Section 1417 – Prohibition on Use and Introduction into Commerce of Lead Pipes, Solder and Flux Modifies the applicability of the prohibitions by creating exemptions Changes the definition of “lead-free” by reducing lead content from 8% to a weighted average of not more than 0.25% in the wetted surface material (primarily affects brass/bronze) Eliminated provision that required certain products to comply with “voluntary” standards for lead leaching Establishes statutory requirement for calculating lead content Effective 36 months from signature – January 4, 2014
25. New Lead Free Exemptions Exemptions to the prohibition on use and introduction into commerce provisions in 1417(a)(1) and (3) 1417(a)(4)(A) One exemption is for “pipes, pipe fittings, plumbing fittings, or fixtures, including backflow preventers, that are used exclusively for nonpotable services, such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption 1417(a)(4)(B) Another exemption is for “toilets, bidets, urinals, fill valves, flushometer values, tub fillers, shower valves, service saddles, or water distribution main gate valves that are 2 inches in diameter or larger. Any item covered by either of the two exemptions can have any amount of lead.
26. Key Revisions – Definition of Lead Free 1417(d) Definition of lead free Revises the lead content requirement from not more than 8% to not more than a weighted average of 0.25% lead when used with respect to the wetted surfaces of pipes, pipe fittings, plumbing fittings, and fixtures [1417(d)(1)(B)] Provides calculation procedure for determining the weighted average lead concentration of a product from the components that make up the product [1417(d)(2)] Eliminates 1417(d)(3) – which requires certain produces (plumbing fittings and fixtures) to comply with standards for lead leaching (NSF/ANSI Standard 61 Section 9)
27. Key Revisions – Effective Date Effective Date of January 4, 2014 Amendments become effective at the same for the use prohibition in 1417(a)(1) and the introduction into commerce prohibition in 1417(a)(3) A product introduced into commerce legally on January 3, 2014, cannot be used in the installation or repair of a PWS or residential or non-residential facility providing water for human consumption on January 4, 2014 Potential purchasers that could be affected by the lack of a staggered effective date include: plumbers, plumbing product retailers, developers, schools, and water systems Back inventory that does not meet 0.25% lead free calculation cannot be installed after January 3, 2014 unless it is exempt from the prohibitions
28. Safe Drinking Water Act – Lead (continued)Effects on Water Systems/States Water systems face cost increases due to lost inventory and potential increased costs of supplies Some states are concerned about burden of implementing these requirements
29. Safe Drinking Water Act (continued)Pathogens/E. coli EPA has updated the rule for pathogens in drinking water, including setting a limit for the bacteria E. coli. Requires public water systems that are vulnerable to microbial contamination to identify and fix problems Establishes criteria for systems to qualify for and stay on reduced monitoring, which could reduce water system burden and provide incentives for better system operation. The update establishes a health goal (Maximum Contaminant Level Goal) and an MCL for E. coli and eliminates the MCLG and MCL for total coliforms, replacing it with a treatment technique for coliforms that requires assessment and corrective action. Many water utilities have expressed support for the rule saying it promotes its best practices in distributions systems which improve communications about health threats.
30. Safe Drinking Water Act (continued)Challenge Advanced technology has allowed scientists to detect more compounds and substances at far lower levels than ever before. Water service providers must help consumers to understand the health risks (or lack thereof) of trace contaminants.
31. VI. Update of the Arkansas Water PlanThe Arkansas Water Plan Arkansas Code § 15-22-503 (1969) “…a comprehensive program for the orderly development and management of the state’s water and related land resources…” “…the plan shall be the state policy for the development of water and related land resources in this state…” The plan is required to be periodically revised. ANRCC engaged in extensive review with public participation. Many interest groups will (or should) have an interest. Last revised in 1990.
32. VII. NW Ark/Okla. Conflict EPA Studies Nutrients/Phosphorous (appropriate water quality standard for area streams?) Oklahoma’s efforts to restore the Illinois River to pristine scenic river conditions have resulted in recurrent and steadily intensifying disputes with agricultural interests on both sides of the border and point sources located predominantly in the headwaters on the Arkansas side. Arkansas and Oklahoma entered into new agreement
33. VIII. Environmental Enforcement – Federal/ADEQ Voluntary Disclosure Policies ADEQ Voluntary Disclosure Policy Note Timing Preexisting Reporting Requirements? Example of use with air permittees
34. IX. Water Supply Development/Maintenance Issues Reminder re: Project Development (1) Start permitting early and simultaneously (if possible) (2) Acquire capacity through contracts acquisition in lieu of development?
35. X. Construction Project Risk Management A. Recognize Risk Construction involves risk management Risk management involves identifying risk and dealing with the risk Major Causes of Disputes Lack of scope definition by owner refer to contract documents is proposal included? National Environmental Policy Act issue (example – what if revision is required?) Improper risk allocation in contracts (stormwater examples)
36. Performance Guarantees and Acceptance Testing Problems for water and wastewater sector: subjective standards for water quality broad range of influent parameters effluent standards that are more stringent than applicable law measuring the standards remedy if fail to meet guarantee impact of operations ability to meet guarantee Water quality standards that change Why important? Tightening standards/added limits/nutrients, etc.
37. The Challenges of Meeting Taste and Odor, Color and Noise Guarantees Taste, odor and color are directly related to influent what is the baseline for raw water? what happens if actual influent changes from the baseline? different ways to treat different influents Attempt to make standards of classification objective Noise what is objectionable?
38. Project Risk Management (Lessons Learned) Public projects requiring permits Likelihood the required permits will be appealed/challenged. Do employees/consultants recognize that most of what they write can be obtained through discovery/FOIA? Humorous comments, conservative observations, disagreements about regulatory/legal issues, etc. will be obtained by opponents if in writing. All written communications should be prepared with the thought that they may appear in open court one day. Sensitive information should be communicated orally. Critical that understanding/information/provided/etc. to government be documented. Note – Use of Permit Mechanisms to Streamline Process Ex. – Corps of Engineers Nationwide Permit (2012 reissuance) Are there new nationwide permits?
39. Water Supply Development Issues Recognize significant water source development activities could face greater challenges on certain waters. They potentially include those involving: Presence of Endangered Species Act critical habitat and/or threatened or endangered species Interstate or interbasin transfers (Note relevant Texas v. Oklahoma case) Waters whose substantial use will engender opposition by state/federal authorities, tribes or significant environmental organizations Federal reservation of rights
40. XI. Environment Assessment (continued)Mistake/Scope Examples: What is the scope of work? Do both parties have the same understanding? Are non-ASTM Phase I issues relevant such as mold, lead-based paint, asbestos, 404/wetlands, etc.? Do the professionals, being utilized, have both the authority and expertise to address these issues?