Clean Water Advocacy - Newsroom - AMSA in the News
Draft Blending Policy Generally Supported
By State, Local Groups, Opposed by Activists
Draft Environmental Protection Agency guidance on routing stormwater flows
around a portion of the wastewater treatment system during rain events was
generally supported by state regulators and treatment officials, but vigorously
opposed by environmental groups.
The proposed policy, published by EPA Nov. 7, 2003, with a comment period that
extended to Feb. 9, drew more than 600 responses (68 Fed. Reg. 63,042; 213 DEN
A-13, 11/4/03 ). Most of the responses came in the form of postcards or form
letters from local activists groups, but several environmental organizations,
state agencies, health advocacy groups, and municipal groups filed substantive
remarks.
The draft guidance is intended to lay out a clear policy on when EPA would allow
publicly owned treatment works to blend partially treated wastewater with fully
treated wastewater during storm events. The practice is known as blending and
involves routing stormwater around the secondary or biological treatment system
and recombining it with treated effluents before releasing it into the
environment. The Clean Water Act requires that wastewater discharges from sewage
treatment plants be treated to secondary standards, which involves a biological
treatment process to remove biochemical oxygen demand compounds.
Elements of Draft Policy
Under the draft guidance, blending would be allowed if treatment plants:
meet all the conditions of the National Pollutant Discharge Elimination System
permit, including secondary treatment standards and any other requirements;
lay out in their permit application the treatment scheme that will be used to
manage the stormwater, including design capacity and application of generally
accepted practices;
ensure that water routed around the biological treatment process be provided
with primary treatment, which essentially involves solids removal;
operate the facility in accordance to the plan laid out in the permit
application;
continue to appropriately operate and maintain the collection system; and
increase monitoring and data collection during blending events to assess the
effects on the receiving waters.
Raw Sewage Discharges Alleged
Environmental groups oppose the practice and the draft guidance, saying it
violates the Clean Water Act and would allow for the illegal discharge of
untreated sewage into rivers and streams.
Nancy Stoner, senior attorney with the Natural Resources Defense Council and
Rena Steinzor, director of the University of Maryland Environmental Law Clinic,
submitted joint comments saying the proposed guidance amounts to a
reinterpretation of current Clean Water Act regulations on bypasses (40 C.F.R.
122.41(m)).
The regulations prohibit bypasses of any portion of the treatment system except
in extreme situations such as to avoid the loss of life or when all feasible
alternatives have been exhausted.
NRDC and other environmental activists said the proposed policy would result in
raw sewage being released into rivers, lakes, and streams causing excessive
levels of pathogens.
"The Proposed Blending Policy would allow [publicly owned treatment works] to
bypass secondary treatment and dump untreated sewage in surface waters routinely
during wet weather events when the capacity of the secondary treatment unit is
exceeded," NRDC's comments said.
Some state and local agencies supported the guidance, saying it was needed to
provide consistency in the application of EPA's regulations for wastewater, but
indicated some provisions needed to be clarified.
Guidance Needed for Consistency
Municipalities and wastewater treatment officials said the guidance is needed
because some EPA regions have prohibited the practice even though no such ban is
written into any regulations. Publicly owned treatment works (POTWs) have
blended since the 1970s, and treatment officials said the practice is needed to
keep the secondary treatment system from being washed out during storms.
But Stoner said the existing regulations already account for such a scenario.
"The existing regulations, however, require the treatment operator to take steps
proactively to prevent bypass and provide full treatment to the sewage whenever
feasible," the comments said. EPA's draft policy undermines this system and
instead encourages the discharge of largely untreated sewage, NRDC said.
Ken Kirk, executive director of the Association of Metropolitan Sewerage
Agencies, said the proposed policy will "ensure greater consistency in the
approaches taken to the long-standing wet weather management practice of
blending, and, through the six principles, further water quality progress
nationwide."
High Cost to Blending Ban
Moreover, he said, if blending is prohibited, U.S. municipalities could face
$100 billion to $200 billion in costs to build the extra capacity that would be
needed to store excess stormwater flows for treatment.
While several state regulators said they supported a policy on blending, some
indicated that certain provisions should be added or revised.
For example, Ohio EPA said that while NPDES permits should recognize the need
for blending, the practice should not be used to avoid treating peak and base
flows when treatment is feasible and can be done according to standard
engineering practices and design.
Several state and local commenters said the blending should not be allowed for
facilities that discharge into waters listed as impaired under Section 303(d) of
the Clean Water Act.
"The latitude to require advanced treatment even in peak wet weather conditions
is imperative to the success of the TMDL process and achieving water quality
standards in impaired systems," Ron Poltak, executive director of the New
England Interstate Water Pollution Control Commission, said. The commission
generally supported the policy, however, saying that many facilities within the
New England states blend in peak weather conditions because no feasible
alternative exists.
"Because of the need for this practice and recognizing that at one time EPA was
considering prohibiting blending all together, the States endorse EPA's attempt
at preparing guidance and a clear framework for the implementation of this
practice," Poltak said.
R. Pat Smiley, general manager for the Harris County, Texas, Storm Water Quality
Section, agreed that the draft policy needed to contain specific considerations
for impaired waters. He said the proposed policy represented a roll-back in
environmental protections. Most of the stream segments in the county are listed
as impaired, Smiley said, adding that the county also has 200 POTWs. Thus,
changes to regulations that affect treatment facilities will have an impact on
the streams.
While the proposed policy addresses instances where POTWs discharge to
"sensitive waters," it does not "give such regard to impaired waterways, which
require as much or more protection as 'sensitive' receiving waters," Smiley
said.
Interference With State Standards
Mimi Drew, director of the Water Resource Management Division in Florida's
Department of Environmental Protection, said she was concerned the proposed
blending policy would conflict with the state's antidegradation policy,
anti-backsliding provisions, and rules requiring utilities to properly plan for
the necessary domestic wastewater facilities.
"Florida's antidegradation policy requires that a new or expanded discharge to
surface waters must not degrade water quality and must clearly be in the public
interest," Drew said.
The proposed policy, she said, would reward utilities that have not been
properly maintained to remove infiltration and inflow (I/I), which is
groundwater and stormwater that enters the sewer system through leaky pipes,
during wet weather.
"Allowing blending at a treatment facility undermines the incentive for a system
to remove wet weather I/I, leading to higher surface water discharges," she
said. "Once treatment infrastructure is in place allowing blending, it is not
likely to be removed and better alternatives are not likely to be explored in
the future."
Cortland Overmyer, director of the environmental services department for Grand
Rapids, Mich., said he supported the proposed policy but cautioned that it
should not be used to avoid increasing the POTW's capacity to accommodate growth
nor should it be used to allow the "casual treatment of infiltration and inflow
in local wastewater collection systems," Overmyer said.
The policy should also only allow for routing around the secondary system and
not any other portion of the treatment system, he said.
Should Not Be Permanent Solution
Overmyer and other local officials said that while they supported the policy, it
should not be considered a permanent solution for addressing wet weather issues.
"We believe the blending practice is prudent for communities facing financial
pressures and living in watersheds that will handle higher discharge loads
periodically," Overmyer said. "We do not think blending should be a substitution
for excellence in professional design, installation, and operation of wastewater
systems intended to meet national water quality goals nor should it be
considered a permanent engineering solution."
Samuel Wolfe, assistant commissioner for environmental protection at the New
Jersey Department of Environmental Protection, criticized the draft policy
because it institutionalizes blending as a long-term solution, does not require
disinfection, and will affect the design of future POTWs.
Specifically, the policy would allow blending to continue as long as the six
conditions are met, Wolfe said.
"The NJDEP recommends that blending be permitted only as nothing more than a
temporary measure, to be employed on a case-by-case basis and only as part of an
overall strategy that includes work to reduce extraneous flows and construct
additional treatment or storage facilities (if needed)," he said.
Disinfection Issue
Because disinfection is not required, blending will allow increased levels of
pathogens to be released into the waterways, Wolfe said.
Several other commenters also broached the question of disinfection.
Tom Curtis, executive director of the American Water Works Association, said his
organization supports efforts to use Clean Water Act programs to protect
drinking water sources. Current clean water programs focus mostly on protections
for aquatic organisms, but often do not have measures for whether a river or
stream is a high quality source of drinking water, Curtis said. To address this
shortcoming, the agency should develop ambient water quality standards for
drinking water protection and criteria for microbial contaminants such as
cryptosporidium.
To ensure adequate protections of source water that receives blended discharges,
AWWA said EPA should include provisions in the guidance requiring disinfection
of blended effluents before they are discharged, and "these disinfection
requirements should go beyond the chlorine-sensitive organisms used as the basis
for the existing outdated microbial water quality criteria."
Future regulations should require blended effluent to meet new microbial water
quality standards once the standards are issued by EPA and new criteria are
adopted by the primacy agencies and incorporated into permit conditions, Curtis
said.
The NRDC comments pointed out that disinfection is only required if necessary to
meet water quality standards. Yet, water quality criteria for bacteria are
outdated, and none have been established for pathogens such as cryptosporidium
and giardia, NRDC said. Even in cases where disinfection is used, the amount of
disinfectant has to be increased in order to be effective in effluent that has
only undergone primary treatment, the comments said. Byproducts from
disinfection may pose additional risks because some of them are carcinogenic or
can cause other adverse health effects, NRDC said.
Health advocacy groups such as the American Public Health Association, the
Children's Environmental Health Network, and others raised similar concerns in
joint comments.
Municipal Support
Several state municipal groups said EPA should issue final guidance because
their members have been subject to inconsistent enforcement action as a result
of differing interpretations of regulations on wet weather issues.
The Tennessee Municipal League is a party with the Pennsylvania Municipal
Authorities Association and other municipal groups in a lawsuit against EPA
involving the blending issue (Pennsylvania Municipal Authorities Association v.
Leavitt, D.D.C., No. Civ. 02-01361, 11/20/03). The cities alleged in July 2002
that EPA Region III in Philadelphia, Region IV in Atlanta, and Region VI in
Dallas issued guidance banning blending, but that the prohibition is not evenly
applied among the agency's regional offices and has no national regulation to
support it. Moreover, EPA headquarters has not tried to keep the regional
offices from implementing the prohibition on blending, the groups said. The case
was thrown out because the court said it did not have jurisdiction (226 DEN A-8,
11/24/03 ).
In comments, Margaret Mahery, executive director of the Tennessee Municipal
League, said the league supported the draft policy but cautioned EPA not to
impose new requirements on the regulated community through policy. Any new
restrictions would require the agency to undergo a formal rulemaking, which
would include a cost analysis to ensure the changes are justified, the comments
said.
EPA said in briefs in the blending lawsuit that it has never declared blending
to be a prohibited bypass or otherwise restricted by the bypass regulation, the
league said.
"EPA should reiterate this position, and emphasize that so long as existing
regulations and final permit limitations are met blending is allowable," the
Tennessee Municipal League comments said.
Lisa Hollander, general counsel for the Ohio Metropolitan Wastewater Agencies,
agreed that the policy should state that EPA is merely clarifying existing
policy.
"It should confirm that there are many different ways for a POTW to operate its
facilities in order to comply with its NPDES permit requirements," the comments
said. "Therefore, a formal rulemaking is not needed and would only add confusion
to the existing program."
The draft indicates that blending could be allowed if the six principles are
followed, the OMWA comments said, adding that the agency should clarify that
these six steps are "best practices" that if followed will "preserve a POTW's
ability to blend and further ensure that water quality is protected."
Several members of congress, including two House committee chairmen, commented
in support of the draft policy.
Blending "offers a sound environmental alternative to discharges of untreated
sewage into our nation's waters by ensuring that peak excess flows receive
proper treatment that, without blending, would not be achieved," the letter from
Reps. Don Young (R-Alaska), chairman of the House Transportation and
Infrastructure Committee, and Doug Ose, chairman of the House Government Reform
Committee, said.
Several Democratic senators wrote in opposition to the policy.
By Susan Bruninga