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March 2012

More Funding Sought For Water Infrastructure Improvements

Grayson_Lynn_COLORBy E. Lynn Grayson


Seven national water and wastewater associations asked House and Senate members to oppose cuts to the FY 13 appropriations for the Drinking Water and Clean Water State Revolving Funds (SRFs) requested by the Obama Administration. The White House budget proposed $359M in reductions next year but even more efforts to further reduce this funding are anticipated. The seven water agencies include: National Association of Clean Water Agencies, Association of Metropolitan Water Agencies, American Water Works Association, Association of State Drinking Water Administrators, Association of Clean Water Administrators, Water Environment Federation and American Public Works Association.

Financial assistance is needed now by wastewater treatment and drinking water providers to update water-related infrastructure. The necessary capital improvements are required to address climate change consequences including both an onslaught of water or an acute shortage.

Pat Mulroy, general manager of the Las Vegas Valley Water District, testified at a Congressional hearing on March 20th that "… the consequences of climate change are happening now in Las Vegas." He addressed the investments required to construct extra intakes to deal with lower water levels in Lake Mead.

A 2009 study by CH2MHill commissioned by the Association of Metropolitan Water Agencies and the National Association of Clean Water Agencies concluded that the collective costs for utilities to manage climate change impacts could be as high as $448B to $944B by 2050. According to CH2MHill, EPA estimates that $500B is needed to upgrade and maintain existing infrastructure.

The letter to Congress seeking funding support for water infrastructure is attached. Additional insight about these issues can be reviewed at

Supreme Court Allows Challenge to EPA Administrative Order

By Katherine M. Rahill

On March 21, 2012, the United States Supreme Court issued a decision that alters what many have long accepted as the rule with respect to administrative compliance orders issued by the U.S. Environmental Protection Agency ("USEPA"). In Sackett v. Environmental Protection Agency, U.S. No. 10-1062, the Supreme Court was tasked with deciding whether a party may bring an action under the Administrative Procedure Act ("APA") to challenge the issuance of a USEPA administrative order under the Clean Water Act ("CWA"). In a unanimous decision, the Supreme Court held that the answer to that question was a resounding "yes."

This case involved the Sacketts who own a residential lot just north of a lake in Bonner County, Idaho and, as part of a plan to construct a house on the lot, filled in part of their lot with soil and rocks in early 2007. At some point following this activity, the Sacketts received an administrative compliance order from USEPA, finding that they had violated the CWA by illegally filling wetlands on their property, ordering them to halt any further construction, and requiring them to restore the property pursuant to a restoration work plan. After receiving the order, the Sacketts requested a hearing to contest the issuance of the order, a request which was denied by USEPA. The Sacketts then filed suit in the U.S. District Court for the District of Idaho to challenge the order under the APA, arguing that USEPA did not have authority under the CWA over their property. The District Court dismissed their claims based on lack of subject matter jurisdiction and that decision was affirmed by the Ninth Circuit. The Sacketts then appealed to the Supreme Court which granted certiorari

Continue reading "Supreme Court Allows Challenge to EPA Administrative Order" »

New Report Links Fracking To Potential Health Issues

Siros_Steven_COLORBy Steven M. Siros


A recent study by the Colorado School of Public Health has linked hydraulic fracturing to elevated levels of petroleum hydrocarbons in the air near drilling sites.  The study, to be published in Science of the Total Environment, identified cancer and non-cancer impacts to residents living within a half-mile of drilling sites in Garfield County, Colorado.  According to a press release issued by the University of Colorado, the researchers apparently found the greatest impact to be during the "relatively short-term, but high emission, well completion period."  The researchers relied upon ambient air sample data from monitoring stations in the vicinity of the drilling sites in reaching their conclusions.  What is unclear, however, is whether the elevated emissions are attributable to releases from the wells themselves or from emissions associated with the well drilling equipment and associated vehicle traffic.

U.S. EPA Considering Limiting Self-Disclosure Incentives

Siros_Steven_COLORBy Steven M. Siros


Under U.S. EPA's current audit policy, companies that self-disclose environmental violations may be entitled to the elimination or reduction of penalties for non-compliance.  However, U.S. EPA recently announced that it is considering limiting the benefits that companies can receive for voluntarily self-disclosing environmental violations. 

According to U.S. EPA, in fiscal year 2011, self-disclosures only resulted in the reduction of 3,000 pounds of pollutants as compared to 1.8 billion pounds in pollutant reduction achieved through other enforcement mechanisms.  U.S. EPA also commented that these self-disclosures are not being made in high-priority enforcement areas.  For example, 54 percent of the disclosures made from fiscal year 1999 through 2011 were made under the Emergency Planning and Community Right to Know Act.   U.S. EPA's recently issued draft National Program Manager Guidance provides that U.S. EPA intends to focus its enforcement priorities on pollution that poses the greatest threats to public health and the environment, such as emissions from coal fired power plants.  The draft guidance questions whether U.S. EPA's self-disclosure program has been effective in reducing high-threat pollutants.

Notwithstanding U.S. EPA's skepticism, it should be noted that the volume of pollution reduced through self-disclosures in 2011 may be an anomaly.  For example, in 2009, 22.9 million pounds of pollutants were reduced through self-disclosures out of a total pollutant reduction of 580 million pounds.  Moreover, even U.S. EPA has acknowledged that it continues to receive large numbers of self-disclosures each year which should enable U.S. EPA to better focus its enforcement priorities on what it deems high-threat pollution. 

 U.S. EPA has not provided specific details concerning what changes it might be contemplating with respect to the audit policy's self-disclosure incentives but we will continue to track this issue.