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. rr ro.'. 55'" uUl : STERN l\TES WATER January 7, 1994 Issue No. 1025 TIffi WEEKLY NEWSLETIER OF TIffi WESTERN STATES WATER Creekview Plaza, Suite A-201 /942 East 7145 So. / Midvale, Utah 84047 / (801) 561-5300/ FAX (801) 255-9642 Editor - Norm Johnson Typis t - Carrie Curvin UllGATlON/WATER QUAliTY Clean Water Act/Section 518 . The 10th Circuit Court of Appeals is reviewing a New Mexico federal district court decision which held that EPA followed the necessary procedural steps in accepting the Isleta Pueblo's water quality standards under Clean Water Act (CWA) Section 518, Albuquerque v. Browner, No. 93-82-M (Oct. 22, 1993). As reported last week, the EPA has recently published a final rule setting forth requirements for determining eligibility of tribes to be treated as states under Section 518 ryvSW #1024). The Albuquerque wastewater treatment facility discharges into the Rio Grande five miles north of the Isleta Pueblo. The facility holds a National Pollution Discharge Elimination System (NPDES) permit issued by EPA. In 1992 EPA considered the NPDES permit for revision based on standards adopted by New Mexico. While the revision was In process, EPA recognized Isleta as a state under CWA Section 518, and thus approved the pueblo's water quality standards. EPA informed Albuquerque it would prepare an NPDES permit for the city's wastewater treatment facility to meet the Pueblo's standards, as well as the state's. The Pueblo's standards are more stringent than the state's. . In January 1993, Albuquerque sued EPA over approval of the Isleta standards. At the time, David Campbell, the city's former attorney, stressed that the city was not suing the Pueblo itself, "and not challenging whether they can adopt such standards, but we are challenging EPA's approval of those standards" ryvSW #983). The city questioned the approvai on several grounds. Specifically, that the agency failed to follow required procedures, Chairman - Dave Kennedy Executive Director - Craig Bell misinterpreted two provisions of the CWA, approved standards that are unconstitutional, failed to provide a mechanism to resolve unreasonable consequences which arise when a state and a tribe impose different standards on a common water body, failed to insure that the standards were stringent enough to protect designated uses, and did not insure that the standards had a rational scientific basis. The judge acknowledged, but rejected, each of Albuquerque's assertions, and thus granted EPA's motion for summary judgement in the case. After doing so, he said, "I note that the city raises some very troubling issues here. I also note EPA's apparently inconsistent position with respect to NPDES permits affecting water quality standards of downstream states.... For example, the Pueblo's arsenic standard is three orders of magnttude (1,000 times) more stringent than the federal Safe Drinking Water [Act] Standard, and is below the concentration that can be accurately measured by current laboratory equipment. EPA will impose the stringent Iimtt on the City despite the fact that arsenic occurs naturally in Albuquerque's ground water at relatively high levels and is not discharged to the water by industrial polluters.... I raise this issue...because...1 find [tt] troubling. However, it relates to the issuance of a NPDES permit, and is not a question that this court has jurisdiction to address." The New Mexico Environment Department has initiated informal discussions with officials from the Isleta Pueblo on water quaiity standards to try to resolve differences between the state and the tribal standards. Isleta has been willing to meet wtth the state to discuss the differences and possibly reach some kind of accord. A technical task force will meet later this month to begin discussions. Negotiators will initially identify areas where agreement can be