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Utilities, Environmental Groups Reach Deal On Blending; EPA to Review Draft Guidance
The Natural Resources Defense Council and the National Association of Clean Water Agencies Oct. 27 jointly released draft guidance for utilities to blend treated and partially treated wastewater during heavy rains that may be used by the Environmental Protection Agency to issue a new blending policy.
The eight-page guidance calls on wastewater treatment plants to seek
permission from local, state, or federal regulatory authorities to blend treated
and semi-treated wastewater when renewing or obtaining new National Pollutant
Discharge Elimination System permits.
The guidance states that utilities would need to submit a "detailed analysis"
with their permit applications that would explain why blending wastewater is the
only feasible technological recourse, NACWA General Counsel Alexandra Dunn told
participants at an American Law Institute-American Bar Association seminar on
the Clean Water Act.
NACWA and the NRDC released the draft guidance during the seminar, ending months
of negotiations to find a consensus position on when blending is acceptable. The
issue has been a sensitive one, and EPA was forced to withdraw its previous
draft policy on blending in May in the face of congressional opposition (97 DEN
A-1, 05/20/05 ).
Although there is no guarantee EPA will use the draft to complete work on a new
policy, Benjamin Grumbles, assistant EPA administrator for water, told BNA Oct.
27 that any compromise that brings parties with opposing viewpoints to the table
is "encouraging and productive."
He did not rule out that the guidance could serve as the basis for a new
blending rule, particularly since the "proposal is consistent with the
principles of the Office of Water."
"We will review it very carefully," he added. "Personally, I am pleased with
what I have seen so far."
Both Dunn and NRDC senior attorney Nancy Stoner acknowledged that EPA, and
specifically Grumbles, had encouraged the two groups to meet and resolve their
differences over blending.
Blending Used During Rains
Blending of wastewater takes place at treatment plants during heavy rains when
the volume of water is more than a plant's capacity can handle.
In such cases, a portion of wastewater is rerouted after primary treatment, when
solids are removed, around the secondary treatment system. It is then mixed with
treated wastewater, or wastewater that has gone through both treatments, and
allowed to be discharged into a nearby river. The secondary treatment is
critical to the treatment process, using special bacteria that digest harmful
organic compounds and disease-causing microbes.
Under the draft guidance, the permitting authority would review the analysis
submitted by the utilities and decide whether to permit or reject blending. A
wastewater utility would have the right to appeal the rejection through an
administrative appeals process and, if the appeal fails, to seek judicial
review, Dunn told the seminar.
The guidance does not spell out any uniform "wet weather conditions," but it
leaves it up to the permitting authority to decide what defines peak flows of
wastewater and under what conditions blending would be allowed. Stoner explained
that the draft guidance builds upon and interprets an "anticipated bypass
provision" in the Clean Water Act section dealing with wastewater management (at
40 C.F.R ยง403.17).
This provision in the CWA, Stoner said, enables utilities to inform the
permitting authority of their intention to bypass the wastewater through the
secondary treatment process because of repair work or maintenance. This
provision can only be used after utilities have shown the permitting authority
that all technologically feasible alternatives have been examined and no
alternative other than a bypass is left.
A key aspect of the draft guidance, according to Stoner, is the public
notification process. As part of the permit, wastewater utilities would have to
inform the permitting authority each time they blend and exactly how much they
blend and for how long.
The utilities would have to monitor effluents daily, she said.
Groups Were Formerly at Odds
Roughly 16,000 publicly owned wastewater utilities operate in the United States,
according to Jim Hanlon, director of EPA's wastewater program, who was part of
the panel discussion on wastewater along with Dunn and Stoner.
Until May, NRDC and NACWA were on opposite sides of the wastewater policy
debate, especially on EPA's previous blending policy. NRDC refused to consider
any policy that allowed untreated wastewater to be released into the nation's
waters, a position that Stoner reiterated during the announcement.
NACWA continues to insist the policy that EPA was trying to codify was normal
practice during heavy rainfalls, as there has been no clear guidance on the
issue of blending wastewater, Dunn said. "This draft guidance attempts to
resolve those differences," she added.
Utilities appear to be accepting the additional regulatory burden of the
permitting process because the joint guidance takes the focus away from
enforcement, which can result in stiff fines and legal fees. Dunn told BNA the
permitting process would not be a burden. Rather, she said, "the facilities are
very appreciative of this guidance. They are welcoming it."
G. Tracy Mehan III, who preceded Grumbles as head of EPA's Office of Water and
is now a principal analyst with the Virginia-based Cadmus Group, shied away from
commenting on the specifics.
Bypass Provision Called 'Smart Move.'
However, Mehan told BNA the guidance has taken a very positive step by
incorporating a bypass provision, which is an enforcement tool, into the
permitting process. "That was a smart move," Mehan added, as enforcement can be
a very "blunt tool" that can only be used as a last resort. In the permitting
process, the parties can clarify the issues up front.
In November 2003, EPA announced a draft policy to clarify under which
circumstances blending should be allowed. The draft policy allowed utilities to
redirect wastewater around the secondary treatment process provided the
discharged water met all permit conditions. The policy also called for frequent
monitoring of effluents after bypass events to see whether there were any
potential environmental effects.
The draft policy was never made final, and EPA withdrew the draft in May, hours
before House lawmakers threatened to adopt an amendment barring the agency from
expending any resources toward implementing such a policy.
Environmental groups, including the NRDC, objected when EPA first published its
2003 draft. Utility officials who backed the policy said the agency was merely
codifying a practice that treatment plants have been following as a routine
matter during heavy rains (98 DEN A-5, 05/23/05 ).
The draft NACWA/NRDC guidance is available at http://www.nacwa.org/getfile.cfm?fn=2005-10-27pww.pdf or at http://www.nrdc.org/media/docs/051027.pdf.
By Amena H. Saiyid