Peer review legislation at issue in EPA petition

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"Pay-for-play" Peer Review Legislation

Peer review legislation at issue in EPA petition

In a previous posting, utahwaterlaw.com reported on concerns voiced by the Environmental Protection Agency (“EPA”) to the Utah Legislature over now-passed SB 110, titled “Water Quality Amendments,” which the EPA warned that SB 110’s peer review proposal violated the Clean Water Act (“CWA”).  In a letter to the Utah Legislature, the EPA noted that SB 110’s plan to subject Utah Division of Water Quality actions to an independent peer review did not comply with the CWA.  The letter further stated that if the law was passed without any changes, then the federal government might step in to manage water in Utah.

Peer Review Legislation Passes Despite EPA Warning

Despite a warning from the EPA, SB 110 was passed into law following the 2016 legislative session.  SB 110 “establishes an independent peer review process for challenges made to proposals from the Division of Water Quality; and establishes the requirements, including selecting the panel of independent experts,” among other things.

With the passage of SB 110, Utah became the third state – joining Minnesota and California – to pass legislation on scientific review of administrative rulemaking.  However, neither the legislation passed in Minnesota nor California, go nearly as far as SB 110.  Essentially, SB 110 allows challenges of “pretty much any activity, rule, standard or initiative” from the Division of Water Quality or the Water Quality Board, said Walt Baker, DWQ director.  “We’re breaking some ground here that has not been broken before,” he said.

Peer Review Legislation Allows “Pay-for-Play” Rulemaking

The primary impact of SB 110 is that it allows stakeholders to pay to challenge the science behind water regulations proposed by the Division of Water Quality.  Once a decision is challenged, a three-person panel made up of scientists selected by both the challenging party and the Division of Water Quality determines whether the action is scientifically defensible.  If the panel determines that the action is not scientifically defensible, then the Division of Water Quality may not be allowed to proceed on its rule.

Leland Myers, Central Davis Sewer District manager and the chief spokesman for the coalition of water managers who drafted the original bill, heralded the plan as one that would benefit citizens and make state regulators more thorough in their science.

“The biggest benefit is that it allows for a review and makes everyone a little more cautious to make sure they follow good science,” he said. “I think the bar is set high enough that it won’t be used frivolously.”

As noted, an especially important portion of SB 110 requires that those challenging the Division of Water Quality action to pay all expenses associated with the peer review, which is estimated to cost approximately $65,000 per year.  This “pay-for-play” type rulemaking has created the most controversy, and has prompted some environmental groups to petition the EPA to block the “Water Quality Amendments.”

Environmental Groups Petition EPA Over Peer Review Legislation

Earlier this month, more than half a dozen environmental groups filed a petition asking the EPA to revoke Utah’s authority to administer portions of the CWA.  In their letter, the groups, headed by Friends of the Great Salt Lake, told the EPA that the passage of SB 110 directly undermines the ability of the Division of Water Quality to enforce the CWA by way of the new peer review system.  The letter argues that the law is a covert attempt to legalize “pay-for-play” rule-making, which the groups say impermissibly allows only those with deep pockets to challenge water quality decisions.

Rob Dubuc, an attorney with Western Resource Advocates, which is representing Friends of the Great Salt Lake, called the peer review statute unprecedented and offensive.

According to the petition, the statute violates federal law by creating potential scenarios where the peer review panel could trump federal mandates by restricting the public’s access to water-quality decisions and circumventing the judicial system.

EPA Can Overtake CWA Enforcment if DWQ is Unwilling or Unable to Fulfill Duties

The EPA authorizes the Division of Water Quality to oversee and enforce provisions of the CWA under what is essentially a contractual partnership.  In the event the EPA determines that the Division of Water Quality is unwilling or unable to fulfill its responsibilities, the EPA may revoke the Division of Water Quality’s administrative authority and take over the management of CWA programs in Utah — including the authority to issue water quality permits.

There are currently only four states that have not delegated authority under the CWA, Baker said, and one of those — Idaho — is currently seeking delegation.

Utah Lawmakers Warned of “Gaps” in Peer Review Legislation

Baker said he warned lawmakers during the session that the statute had some “gaps relative to public participation” that had drawn scrutiny from the EPA.  Baker said he hopes that the Division of Water Quality will be able to craft administrative rules to fill in the “holes” and appease both the EPA and the environmentalists.

Baker said he began drafting such rules while the statute was still being discussed, and has already shared them with some stakeholders.  Baker expects to introduce the rules to the state Board of Water Quality next month.

But Duboc said he is skeptical that administrative rules will be able to go far enough to remedy the “fundamental flaws” of SB 110.  The environmental groups he represents are not unhappy with the Division of Water Quality, Duboc said, and don’t necessarily believe the EPA would be any better at preserving Utah’s waters.

“No one wants EPA to come in and take over this program,” Duboc said. “EPA doesn’t want that, the state doesn’t want that, and we don’t necessarily want that, but this legislation backs us into a corner. … One way or the other, this peer review panel has to go away.  If that takes the EPA coming in and running the program, so be it.”

Unclear Whether Environmental Groups Would Accept Legislation Without “Pay-for-Play” Provision

While it is unclear whether the environmental groups would support the Division of Water Quality action challenge process without the pay-for-play provision, it is clear that as it stands currently, the “Water Quality Amendments” are not amenable.  The environmental groups’ petition raises the question whether it is fair to allow only those that can afford it can challenge water quality decisions, or if the legislation was passed to allow rich companies or other potential polluters to pay for scientific peer review of water quality actions.  The EPA has said that is has received the petition and is in the process of reviewing the petition.  Utahwaterlaw.com will continue to follow this story as it unfolds.

* Photo Cred.: gobankingrates.com

Copyright 2016


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Peer review legislation does not comply with Clean Water Act, EPA says

EPA-building-signThe Environmental Protection Agency (“EPA”) recently sent a letter to Utah’s Division of Water Quality, which noted that the proposed legislation to make the division’s actions subject to an independent peer review did not comply with the Clean Water Act (“CWA”).  The letter warned that, if the bill was passed without changes, then the federal government might step in to manage water in the state of Utah.

The bill at issue, SB 110, entitled Water Quality Amendments, seeks to establish an “independent peer review process for challenges made to proposals from the Division of Water Quality.”

Initiating the Peer Review Process

Specifically, the proposed legislation requires that the director of the Division of Water Quality “initiate an independent peer review” when: 1) a party “challenges in writing a study or the technical or scientific data upon which a proposal is based and requests an independent peer review”; 2) “if the independent peer review is related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review before the technology based nutrient effluent limit is adopted into a permit issued by the division”; 3) if the independent peer review is not related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review related to a proposal before the proposal has been adopted by the division or the board”; 4) the challenging party agrees to provide the funding to pay for the independent peer review; and 5) the challenging party would be substantially impacted by the adoption of the proposal.

Furthermore, under SB 110, the director of the Division of Water Quality must ensure that the peer review is completed within one year, and that the panel conducting the peer review must have a “minimum of three experts … who are mutually agreeable to both the division and the challenging party.”  The panel shall allow for public comment and govern its review process according to the EPA’s Peer Review Handbook.  Finally, an independent review panel must issue a final written report detailing the findings of each panel member, and which is supported by a majority of the panel.

EPA’s Concerns Over the CWA

While reluctant to get involved in state legislative proceedings, the EPA said in its letter that SB 110 raised concerns that the proposed peer review rule did not meet the CWA’s requirements for public participation.  The letter reminded Utah lawmakers that “[s]ection 303(c) of the CWA requires states to ‘hold public hearings for the purposes of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.’”  The EPA has said that SB 110’s requirement of written report from the independent peer review panel does not go far enough because it does not appear under the proposed legislation that the report will be made available to the public.

The EPA’s letter also said that SB 110, as drafted, violates section 402(b)(3) of the CWA because it limits public input into subsequent permitting decisions, while allowing only Utah Pollutant Discharge Elimination System (“UPDES”) permittees to challenge such proposals.  The EPA says specifically that paragraphs 7 and 8 limit public participation, and that, “[i]f these statutory effects occur outside the State’s standard permit process, S.B. 110 effectively ensures that the public is excluded from significant permit decisions without an opportunity for public comment or a public hearing in direct contravention of [section] 402(b)(3).”

Apart from the public participation issue, the EPA also said the proposed legislation would improperly exempt UPDES permittees from compliance from applicable technology based effluent limitations (“TBELS”) limits that are mandatory under the CWA.  According to the EPA, “In sum, it appears that S.B. 110 is not consistent with certain requirements of the [CWA] relating to water quality and standards, and may undermine the basis for Utah’s authorized UPDES program.”

Utah Audubon Council Speaks Out

In an article reported by the Salt Lake Tribune, Steve Erickson, a policy advocate for the Utah Audubon Council, said:

The peer review process can’t be the back door to trump the public process.  It can’t be used to trump permitting.  …  Everyone wants good science to be used; that’s not really the crux of the matter.  It’s how the process plays.

SB 110 has gone through three iterations in the Utah State Legislature, and is currently in the Utah House of Representatives after receiving a favorable recommendation and vote from the Utah Senate.  The Utah House Natural Resources, Agriculture, and Environmental Committee has referred SB 110 to the House Rules Committee for prioritization.

Utah Division of WAter Quality Touts SB 110

Walt Baker, director of the Utah Division of Water Quality, has said that SB 110 is novel legislation, and that only two other states, Minnesota and California, have enacted peer review statutes, and Utah’s proposal “dwarfs” both states’ provisions. If the Legislature adopts the bill, he said, Utahns will have to wait and see just how its actual implementation works.  “This is landmark,” he said.  “In my [31 years of] experience … this will be the most foundational change in the water quality program.”

While it remains to be seen whether SB 110 will successfully navigate its way through the Utah House, and whether the EPA will be happy with its final iteration, one thing is clear: the EPA is not in favor of a peer review process that limits public participation and allows or certain exemptions in contravention of the WCA.  Compliance with the WCA is mandatory in the eyes of the EPA.

Photo cred.: utahpoliticalcapitol.com; austincountynewsonline.com