Aug. 9 — An Environmental Protection Agency proposal to treat expired discharge permits that have been administratively continued as “proposed permits” to reduce the backlog of those awaiting renewal is unlawful, three power companies said in comments.
Southern Co., First Energy and NRG Energy questioned whether the EPA has the authority under the Clean Water Act, the resources or even expertise to even contemplate such a step. The agency sought comment on whether to consider administratively continued permits as proposed permits under Section 402 (d) of the Clean Water Act or to consider other regulatory mechanisms to reduce the backlog of permits needing to be reissued.
“NRG disagrees that EPA’s proposal will speed up permit renewal; in fact, it will have the opposite effect,” Maria Race, with federal environmental programs for NRG Energy, said in comments to the EPA.
The EPA floated the idea as part of revisions it proposed May 18 to the National Pollutant Discharge Elimination System program to achieve the agency's goal of more timely reissuance of state NPDES permits (RIN:2040-AF25).
The provision has drawn objections from the regulated sector, which includes power and mining companies and municipal owned wastewater utilities, and state and local regulators. The EPA said it would give the state and the permit holder notice of its intent to designate the administratively continued permit as a proposed permit, which would subject it to federal review, including possibility of a veto, under 40 CFR 123.44.
The EPA would give the state and the permit holder 180 days to repropose that permit and is requesting comment on whether this time frame is appropriate. Moreover, the EPA has asked for comment on whether to treat an administratively continued permit as a proposal, beginning either two or five years after the original permit expired.
In his comments, Larry Monroe, Southern Company's chief environmental officer, said the EPA lacks the authority under the Clean Water Act to re-designate certain administratively continued permits as proposed permits, thereby subjecting them to additional review and objection process.
“Nothing in Section 402(d), or elsewhere in the Act, empowers EPA to initiate the permit renewal process for a delegated state,” said Monroe, adding that the EPA's proposed rule amounts to “an unlawful intrusion” into the role of states.
He and others cited Section 402(d) as giving the EPA the authority to review and object to permits issued by a delegated state only when they are first issued and when they are subsequently renewed, not when they are administratively continued.
“Congress intended authorized states to have full authority to administer their NPDES programs, and EPA should not be allowed to undermine any portion of that authority. If EPA has a problem with a state’s implementation of its program, it should look to the remedy Congress provided, which is withdrawal of the state’s program approval,” Monroe said.
In June, the Association of Clean Water Administrators, which represents state and interstate water officials, was taken aback by the EPA's inclusion of this provision on administratively continued permits. In its comments, ACWA President Martha Mettler said most states are recommending that the EPA remove this provision altogether.
But if the EPA is determined to move forward with its provision on treating such permits as proposals then Mettler said it should issue a supplemental notice of rulemaking, which should include the following consideration: mediation between the EPA and the states one year before the notice of objection is issued, discussion and consideration of EPA's own administratively continued permits and objection process between EPA and state with no participation by public. Mettler also is assistant commissioner for Indiana Department of Environmental Management's Office of Water Quality.
Joseph Lapcevic, water permitting supervisor for the Akron, Ohio-based First Energy, questioned in comments whether EPA even had the ability to reduce the backlog of state-issued, administratively continued permits.
About 50.3 percent of EPA-issued permits are current, while slightly less than half, 49.7 percent, are either expired or administratively continued, according to Lapcevic. In contrast, he said about 78.9 percent of state-administered NPDES permits are current with about 20 percent administratively extended.
“Such a gap between the programs administered by the EPA and those administered by the state indicates that the EPA is much less effective at performing its NPDES permitting duties, specified under the Clean Water Act, than the states,” Lapcevic said.
He said it was “disturbing” that the EPA would consider taking on an increased workload when it cannot meet its current obligations. Because the states handle 43,000 permits compared with EPA's 873, First Energy claimed that the EPA would not have the breadth of expertise or resources to handle the technical complexities of the permits. Moreover, the Ohio-based utility feared that the permits that would be selected would be subjectively picked, creating unfair and unenforceable permits by the agency.
Monroe and Lapcevic separately questioned EPA's basis for setting a date of two to five years for the administratively continued permits, terming the action arbitrary and capricious. Monroe said the agency should base the time frame for determining when to redesignate an administratively continued permit on the circumstances surrounding that permit and in coordination with the state permitting authority.
The EPA accepted comments until Aug. 2 on the revisions to the NPDES program that would make the regulations consistent with the Clean Water Act amendments of 1987 and subsequent court decisions.
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Comments submitted on EPA's proposed revisions to the NPDES program can be accessed using Docket I.D. No. EPA-HQ-OW-2016-0145 at http://regulations.gov.
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