Previous month:
July 2012
Next month:
September 2012

August 2012

You Are Drinking What? Reuse Of Municipal Wastewater

Grayson_Lynn_COLORBy E. Lynn Grayson


The Wall Street Journal reported this weekend that about 60% of the U.S. is now living through drought conditions and half of all counties have been declared disaster areas. Drastic situations call for drastic measures BUT drinking our own wastewater?

The Wall Street Journal refers to a recent report from the National Academy of Sciences (NAS) titled Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater published this year. Key report findings include:

  • Approximately 12 billion gallons of municipal wastewater effluent is discharged each day to an ocean or estuary out of the 32 billion gallons per day discharged nationwide.
  • Reusing these coastal discharges would directly augment available water resources (equivalent to 6 percent of the estimated total U.S. water use, or 27 percent of public supply).
  • De facto reuse of treated wastewater to augment drinking water supplies–for example, when a drinking water system uses a water supply that receives upstream wastewater discharges–is common in many of the nation's water systems.

Expanding water reuse–the use of treated wastewater for beneficial purposes including irrigation, industrial uses, and drinking water augmentation–could significantly increase the nation's total available water resources according to this new report. A portfolio of treatment options is available to mitigate water quality issues in reclaimed water, and new analysis suggests the risk of exposure to certain microbial and chemical contaminants from drinking reclaimed water does not appear to be any higher than the risk experienced in at least some current drinking water treatment systems and may be orders of magnitude lower. Adjustments to the federal regulatory framework could enhance public health protection for both planned and unplanned (or de facto) reuse, and increase public confidence in water reuse.

This year's drought conditions are raising greater awareness about the sufficiency of existing potable water supplies and concerns about short term and long term water scarcity. Improved use and reuse of all water sources are critical components of an effective water management plan. For more insight into the NAS research and this new report, visit



ABA 2012 Blawg 100 – We Need Your Nominations!

By E. Lynn Grayson and Steven M. Siros

Thank you very much for your support of our blog – Corporate Environmental Lawyer – over the past two years. After 300 postings, we hope that you find the information on the blog to be helpful and informative. Every year, the American Bar Association publishes a list of the top 100 legal blogs (or blawgs). If you enjoy reading our blog, we would appreciate your help in nominating our Corporate Environmental Lawyer for the 2012 ABA Blawg 100. The nomination process is simple, takes less than five minutes and can be accessed by clicking on this link.  Our URL is

The nomination deadline is Friday, September 7, 2012. Thank you for considering our request.

NDWAC To Meet October 4-5 In Chicago About Perchlorate Regulation

Grayson_Lynn_COLORBy E. Lynn Grayson

The National Drinking Water Advisory Council (NDWAC) plans to meet on perchlorate regulation of drinking water October 4 and 5 in Chicago. Although the primary focus of the meeting will be on perchlorate, other issues associated with drinking water protection also will be discussed. The meeting will be held at EPA's Region 5 office in Chicago at the Ralph Metcalfe Federal Building, 77 West Jackson Blvd., Chicago, IL 60604-3950. On October 4 the meeting is scheduled from 8:30 a.m. until 5:00 p.m. Central Time, and on October 5 from 8:30 a.m. until 3:00 p.m. Central Time.

The NDWAC is made up of members of the general public, state and local agencies, and private groups concerned with safe drinking water. The NDWAC advises the EPA Administrator on everything related to drinking water. There are a number of NDWAC working groups managing specific issues. All NDWAC meetings are open to the public.

Additional information is available from Roy Simon of EPA at (202) 564-3868 or

Federal Appeals Court Strikes Down Cross-State Air Pollution Rule

Torrence_Allison_COLORBy Allison A. Torrence


On Tuesday, August 21, 2012, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") vacated the Cross-State Air Pollution Rule (the "Transport Rule"). In a 2-1 decision, written by Judge Kavanaugh and joined by Judge Griffith, the D.C. Circuit held that the United States Environmental Protection Agency ("EPA") exceeded its statutory authority under the Clean Air Act when it issued the Transport Rule.

EPA issued the final Transport Rule in August 2011 to address air pollution (specifically sulfur dioxide ("SO2") and nitrogen oxide ("NOx")) that crosses state lines. EPA identified 28 States that had air pollution sources which negatively impacted air pollution levels in downwind States. EPA targeted coal and gas-fired power plants as the primary sources of air pollution which was traveling to downwind states and set standards for emission reductions at these power plants. In addition, EPA issued Federal Implementation Plans ("FIPs"), which specified how the emission reductions would be implemented. The Transport Rule was challenged by numerous States and private companies. Although the Transport Rule was set to take effect on January 1, 2012, the D.C. Circuit had previously stayed implementation of the rule while it considered these legal challenges.

In striking down the Transport Rule, the D.C. Circuit held that EPA exceeded its authority in two independent aspects. The first problem identified by the court was that the Transport Rule mandated specific air pollution reductions in upwind States that may require the upwind States to reduce emissions by more than their own contribution to a downwind State's air pollution problem. Second, the court held that the Clean Air Act requires that EPA give States the initial opportunity to design State Implementation Plans ("SIPs") as a means to achieve the standards set by EPA. Here, EPA did not allow the States to design SIPs, and instead created FIPs that the States would have been required to follow.

The court therefore vacated the Transport Rule and remanded it back to EPA for further proceedings.  EPA’s earlier attempt to regulate cross-state air pollution, the Clean Air Interstate Rule (“CAIR”) had previously been found to have been promulgated in a manner that exceeded EPA's authority under the Clean Air Act although the court did not vacate the rule.  Instead, the court ordered EPA to promulgate a new rule which it attempted to do via the Transport Rule.  In light of the court's decision here which vacated the Transport Rule, EPA will be required to continue to administer CAIR pending the promulgation of a valid replacement.  Under CAIR, EPA created a cap and trade system for emissions of SO2 and NOx covering 27 States and the District of Columbia.  EPA has set required emissions reductions for each State, and the States must achieve those reductions by either (1) requiring power plants to participate in the EPA-administered interstate cap and trade system, or (2) meet an individual State emissions budget through measures of the State’s choosing.  We will continue to track EPA's efforts to implement CAIR while at the same time promulgating a replacement for the Transport Rule. 

A copy of the D.C. Circuit's ruling in EME Homer City Generation, LP v. Environmental Protection Agency, et. al, Case No. 11-1302, is available here.

Will New TCE And PCE Risk Values Make It Harder For Sites to Be Listed On The NPL?

Siros_Steven_COLORBy Steven M. Siros


Recent changes to U.S. EPA risk values for trichloroethylene (TCE) and perchloroethyle (PCE) have raised the bar for listing sites contaminated with these constituents on the NPL.  These new risk values are weaker than values that U.S. EPA had previously used to score hazardous waste sites. The new risk values are now reflected in U.S. EPA's Superfund Chemical Data Matrix (SCDM). The toxicity factor for TCE dropped from 10,000 to 1,000 and the TCE drinking water benchmark value changed from .21 ug/l to 1.0 ug/l. For PCE, the cancer risk level increased by a factor 20.

The effect of these revised values on the site scoring process can be dramatic. For example, U.S. EPA recently rescored a site in Leeds, Maine using the new values and the score dropped from 50 to 32.92 (the site was still eligible for listing since the listing threshold is 28.5). However, under the old system, 17 residents were documented to be drinking contaminated water from several wells; based on the new scoring, only two wells were above the threshold. 

Please click here to go to the SCDM website for further information on the recent changes to U.S. EPA's NPL scoring matrix.