Member Pipeline - Fax Alerts - March 2, 2006
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for the FaxAlert ArchiveMarch 2, 2006
DC District Court Oral
Argument Takes Stunning Turn in Precedent Setting TMDL Case
The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments this week in the appeal by Friends of the Earth (FOE) of the total maximum daily loads (TMDLs) for biochemical oxygen demand (BOD) and total suspended solids (TSS) for D.C.’s Anacostia River. In this case, FOE argues that the TMDLs for these and all pollutants must be expressed as true 24-hour loads. Historically, however, EPA has interpreted the word ‘daily’ in the Clean Water Act’s (CWA) TMDL provision as giving EPA ample flexibility to express TMDLs in a variety of ways for the pollutant at hand, including as monthly or seasonal averages. However, the three-judge panel reminded EPA that it only has this "flexibility" if the words of the CWA are ambiguous. Intense questioning by the justices revealed that they do not believe there is any ambiguity in the CWA's use of the word ‘daily’.The court, however, acknowledged the practical policy arguments made by attorneys for EPA and NACWA member agency the District of Columbia Water and Sewer Authority (DCWASA) that without flexibility to express TMDLs in a way that best suits the pollutant and natural spikes in discharge, compliance with TMDL-derived permit limits would be impossible for most combined sewer communities and municipal separate storm sewer (MS4) permittees. In recognition of the real world difficulty of implementing 24-hour loads in many situations, the court emphasized that EPA could use the power it is granted under the CWA to declare certain pollutants – like BOD and TSS – as not "suitable for such calculation" under the CWA's TMDL provision. A decision from the court is expected in the coming months – but clearly, the outcome of this case could have major implications for NACWA members, and hundreds of TMDLs, nationwide. More information on the case is available on NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/#friends).
Wastewater Treatment
Facilities Not Target of Chemical Security Bill
NACWA met this week with the staff of Senate Homeland Security and Governmental Affairs (HSGA) Committee Chairwoman, Susan Collins (R-ME), to discuss the Chemical Facility Anti-Terrorism Act of 2005 (S. 2145) (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm#2). S.2145, introduced by Collins and Ranking Member, Joseph Lieberman (D-CT), would provide broad new authority to the Department of Homeland Security (DHS) to establish risk-based criteria to determine which chemical facilities are vulnerable to a terrorist attack and to establish security standards for those facilities. Chemical facilities would be required to conduct vulnerability assessments and create site security and emergency response plans based on their specific vulnerabilities, subject to approval by the Secretary of DHS. Facilities that fail to comply with the security standards would be subject to fines and penalties. During the meeting, Senator Collins’ staff told NACWA that “DHS does not intend to capture wastewater facilities” in the legislation. Additionally, in a recent Government Accountability Office (GAO) report on chemical facility security (http://www.gao.gov/cgi-bin/getrpt?GAO-06-150), released to the public this week, DHS stated, “it did not intend wastewater treatment facilities to be incorporated in the list of top facilities.” Sen. Collins’ staff expects S. 2145 to be marked up in the HSGA Committee in the near future. Similar legislation in the House is being encouraged by the White House but has not yet been drafted. NACWA will continue efforts to ensure that publicly owned treatment works, as a class, are not captured by this legislation. We will provide the membership with updates on this issue as they develop.NACWA Encourages Member Participation
in Newly Formed Emerging Pollutants Workgroup
NACWA’s Standing Committees on Water Quality, Pretreatment, and Biosolids are increasingly focused on the issue of emerging pollutants. To this end, NACWA President Donnie Wheeler has created an Emerging Pollutants Workgroup, under the auspices of the Regulatory Policy Committee. The Workgroup will tackle issues such as endocrine disrupting compounds (EDCs), pharmaceuticals and personal care products (PPCPs), and industrial chemicals such as nonylphenols. The Association is seeking volunteers to serve on this Workgroup to help review technical literature, follow ongoing research projects, and brief NACWA leadership on the science and evolving regulatory issues from their agencies’ perspective. Please contact Chris Hornback, chornback@nacwa.org or 202/833-9106, if you are interested in participating in the Workgroup.