Okaloosa County BOCC — November 4, 2012 — reading text

and directed EPA to promulgate new limits on nutrients in surface waters in the State of Florida. The nutrients in question are Nitrogen and Phosphorous. The proposed NNC limits only applied to the State of Florida and were not mandatory in any other states. The NNC limits in the proposed EPA rules were not based on sound scientific principles and were so strict that it would have been nearly impossible for any existing treatment facilities in the State of Florida to comply without extremely expensive upgrading of treatment processes. If the proposed rules had been adopted, the financial consequences for wastewater utilities and their customers would have been catastrophic. The EPA proposed a set of draft NNC rules for Florida in 2009. The proposed rules raised a storm of opposition among public and private entities which may be subject to them. The EPA conducted a series of public meetings in Florida in 2010 and solicited written comments from affected parties. OCWS staff, along with consultants and Commissioner John Jannazo attended one of the public meetings in Tallahassee. OCWS staff and consultants have submitted written comments to EPA on three different occasions. Members of the NW Florida Utility Managers Council, as well as the Florida Section of the American Waterworks Association (FSAWWA) and Florida Water Environment Association (FWEA) initiated legal action against the EPA. The Florida Attorney General and the Florida Secretary of Agriculture also initiated legal action against the EPA. On December 14, 2010, the Board of County Commissioners approved the Joint Agreement for Legal Representation with the law firm of Oertel, Fernandez, Cole & Bryant, P.A. The panhandle utilities involved in the Joint Agreement were Destin Water Users, South Walton Utility, Okaloosa County Water & Sewer System, Emerald Coast Utility Authority Packet Pg. 570  6.5.a and the City of Panama City. The purpose of the agreement was to initiate legal action to challenge the validity of the proposed EPA NNC rules regarding Water Quality Standards for the State of Florida's lakes and flowing waters as they affected wastewater utilities. While the matter was being litigated, FDEP proposed their own set of NNC rules and those rules were adopted by the Florida legislature. On November 30, 2012, EPA issued a statement that it had determined to accept the FDEP Numeric Nutrient rules. EPA's statement also indicated it was, "...prepared to withdraw or not move forward with its Federal Rules for any waters that become covered by State law ..." Because the FDEP rules do not yet cover all waters, EPA proposed two new Federal nutrient rules; one for numeric limits allowed in Florida's estuaries and coastal waters and one for streams in South Florida, which have not been covered by the FDEP rules as of this time. The net result of the above is that EPA rules for the vast majority of Florida's inland waters (except for South Florida) will not be regulated by the EPA rules, but will be covered by the State rules. While these State rules will be more rigorous than the new existing narrative standard, they are far more reasonable, realistic and workable than what EPA proposed and which we successfully challenged. OVERVIEW: It appears that EPA has approved the water quality standards that FDEP has formulated and that have been adopted as law by our legislature. At this moment, no standards for NNC are in effect for panhandle estuaries and probably will not be until summer 2013 at the earliest. There is speculation that EPA will eventually accept all standards proposed by FDEP and adopted by the Florida State Legislature. We must remain vigilant, as we expect the environmental advocacy groups to continue to litigate these issues and force the EPA's hand to stop cooperating with FDEP and go back closer to the original, unscientific NNC rules that were proposed in 2009. There is a document attached with talking points from Richard Griswold, who is the Director of Destin Water Users and also serves as the President of the NW Florida Utility Managers Council. The document also presents comments from Ken Oertel, the lead attorney hired by the panhandle utilities to challenge the EPA rules in federal court. RECOMMENDED BY: Packet Pg. 571  6.5.a APPROVED BY: James D. Curry, County Administrator Packet Pg. 572  6.5.a.a US Environmental Protection Agency Numeric Nutrient Criteria TALKING POINTS – December 3, 2012 Thoughts from Richard Griswold, Director, Destin Water Users & President, NW Florida Utility Managers Council: Attachment: EPA NNC TALKING POINTS 12-10-2012 (1229 : EPA Numeric Nutrient Criteria (NNC) Status Update)  Attorneys from all over Florida are studying the EPA documents now.  The media seems to be reporting all this based on their individual bias so believing anything from the media at this point is difficult.  It appears that EPA has approved the water quality standards that FDEP has formulated and that have been adopted as law by our legislature.  Since standards for the panhandle estuaries have been approved but not yet adopted by our legislature, then EPA will develop those standards in their estuary rule.  At this moment, no standards for NNC are in effect for panhandle estuaries and probably will not be until summer 2013 at the earliest.  The federal judge’s ruling on the freshwater rule was appealed by the environmental activist groups and that appeal is still alive. EPA has not yet responded to the appeal and only has a few days in which to do so.  Speculation on behalf of FDEP is that EPA will eventually accept all standards proposed by them and adopted by the Florida State Legislature.  The entire issue at this time is still confusing for all. It may take some time for all to be fully understood. Summary Statement from attorney Ken Oertel, representing the panhandle utilities (December, 2012):  After business hours on Friday, November 30, EPA issued a statement that it had determined to accept the FDEP Numeric Nutrient rules. EPA’s statement also indicated it was, “…prepared to withdraw, or not move forward with its Federal Rules for any waters that become covered by State law…” Because the FDEP rules do not yet cover all waters, EPA proposed two new Federal nutrient rules; one for numeric limits allowed in Florida’s estuaries and coastal waters; and, (2) for streams in South Florida, which have not been covered by the FDEP rules as of this time.  The net result of the above is that the EPA rules for the vast majority of Florida’s inland waters (except for South Florida) will not be regulated by the EPA rules, but will be covered by the State rules. While these State rules will be more rigorous than the now existing narrative standard, they are far more reasonable, realistic and workable than what EPA proposed and which we successfully challenged. Packet Pg. 573  6.5.a.a  These State rules are the same which we supported when challenged by the Earthjustice, which attempted to invalidate them so the EPA rules would remain on the books.  We prevailed in having the Administrative Law Judge determine the FDEP rules were valid. You should expect that EPA will, in the future, withdraw the rules it adopted for lakes, rivers Attachment: EPA NNC TALKING POINTS 12-10-2012 (1229 : EPA Numeric Nutrient Criteria (NNC) Status Update) and streams, etc. and will probably wait for FDEP to adopt additional standards for estuaries and South Florida’s freshwater areas. I think it is a safe bet to say that eventually the State rules will all be accepted by EPA and that it will rescind the rulemaking efforts we have objected to so vigorously.  With this action, EPA may file a notice with the Court of Appeal to have our appeal of Judge Hinkle’s decision dismissed as being moot. If EPA can persuade the Court of Appeal that the rules in question will not go into effect, the Court may be persuaded to dismiss our appeal. I would be disappointed if this occurs, as our appeal raises important legal issues regarding EPA’s powers. However, it will be unusual for the Court to entertain an appeal on rules which will not go into effect.  Last week (December 2012), EPA met with the Department of Environmental Protection officials to discuss the present status of the EPA rules. At the meeting, EPA outlined actions it took in regard to the Court imposed deadline of November 30, 2012. It specifically approved the DEP State rule; amended its necessity determination and indicated that it re-proposed the stream provisions invalidated by Judge Hinkle but indicated it may not go forward with those rules should it reach an agreement with the State. It proposed additional rulemaking for coastal and estuary waters, but indicated in recognition that DEP is on track for those rules; it may approve the State rules and not go forward with its own rules.  Additionally, the U.S. Court of Appeals for the 11th Circuit, extended the time for EPA to respond to briefs. The Court set a deadline of March 7, 2013 for EPA to respond. The way the Order is worded, it’s not clear whether EPA has until March 7 to answer all the briefs or just the Water Management District briefs; we will have to get clarification on that. Packet Pg. 574  6.5.b BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST DATE: December 18, 2012 TO: Honorable Chairman and Members of the Board FROM: Jeff Littrell SUBJECT: Contract for the Transportation and Removal of Biosolids DEPARTMENT: Water and Sewer BCC DISTRICT: All STATEMENT OF ISSUE: OCWS staff requests approval by the Board of County Commissioners for the Chairman to execute a contract with Crook Creek Farms for the transportation and removal of biosolids from our Arbennie Pritchett Water Reclamation Facility (APWRF). Biosolids from our other two plants (Bob Sikes & Russell F. Stephenson) are trucked to APWRF and then transported from there to the permitted disposal site. BACKGROUND: Historically, the Florida Department of Environmental Protection (FDEP) has held wastewater treatment plants responsible for their biosolids from production through final disposal, even if the final disposal is located offsite and handled by a separate entity. On August 29, 2010, FDEP changed rule 62-640, F.A.C., to require all biosolids land application sites in the state of Florida to be permitted directly with FDEP. This change reduces unnecessary