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Utilities Sue EPA Over Pollution Settlement

TALLAHASSEE (CN) - Florida water and power utilities are crying foul over a change in how to measure pollution in wastewater. The Florida Water Environmental Association Utility Council and Florida Electric Power Coordinating Group have challenged an Environmental Protection Agency ruling from January that scrapped "narrative" criteria for wastewater release, mandating numeric criteria instead.

Wastewater discharges can contain nutrients or heat that promote environmentally harmful growth of algae and invasive aquatic species.

Most states have narrative water quality standards, which do not set definite pollution levels. Environmentalists in Florida sought numeric standards, which would establish specific limits for different types of pollutants.

The January EPA decision came in response to an August 2008 environmental lawsuit contending that two 1998 EPA documents, a Clean Water Action Plan and National Strategy for the Development of Regional Nutrient Criteria, constitute final agency determinations and therefore must be implemented.

Although the EPA fought the lawsuits, it settled in an August 2009 consent decree requiring numeric standards for Florida waters by October 2011.

The Florida utilities claim that the January decision did not analyze water quality data, involved no public participation, and was in fact a legal strategy to "quash the debate" over the Clean Water Action Plan and prevent a possible nationwide precedent.

This violates the Clean Water Act, the Administrative Procedure Act and the principle of Equal Protection, the utilities say in their separate complaints.

The decision could subject the utilities to different permitting requirements, upgrade requirements and rate structures. The water utility says it serves 7 million state residents; the power utility says it supplies 5 million.

Represented by Winston Borkowski of Hopping Green & Sams in Tallahassee, the utilities seek a declaration that the January 2009 determinations are not valid agency actions.

Water law blogger Alex Basilevsky wrote that approval of the August 2009 consent decree "will be like blood in the water for environmental organizations across the country," spawning copycat litigation as groups try to force establishment of numeric criteria in states where narrative criteria still rule the day.

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