Clean Water Advocacy - Newsroom - NACWA in the News
States Said to Lack Adequate Resources To Review Analyses Under Blending Plan
States lack the time and money to review the additional analysis that
wastewater utilities would have to submit if the Environmental Protection Agency
adopts blending guidance drafted jointly by environmental advocates and a
utility trade group, state and federal officials say.
At issue is the guidance released Oct. 27 by the Natural Resources Defense
Council and the National Association of Clean Water Agencies that EPA is
evaluating.
It would require local, state, and federal regulatory agencies to review the
detailed rationale that wastewater utilities would be required to offer as part
of the permit-renewal process if they want to blend treated and semi-treated
wastewater during heavy rains before discharging to lakes and streams (208 DEN
A-1, 10/28/05).
States already are struggling to issue National Pollutant Discharge Elimination
System permits on a timely basis, according to officials. Adoption of the joint
guidance by EPA would place an additional burden on states, some officials said
in interviews with BNA and in public comments.
Roberta Savage, the executive director of the Association of State and
Interstate Water Pollution Control Administrators, said the agreement was sound
but expressed concern about the additional workload states would have to face.
"We do see and anticipate a significant state workload" associated with
implementing the agreement, Savage told BNA Oct. 31. "We'll need to take some
time to analyze the implications of this agreement on day-to-day implementation
of the clean water programs."
Former and current EPA officials, who had hailed the agreement the day it was
announced, toned down their initial enthusiasm a day later.
"The approach is reasonable," but states must consider how much funding they
have for clean water programs, James Hanlon, director of EPA's wastewater
division, told participants Oct. 28 at an American Law Institute-American Bar
Association seminar on the Clean Water Act.
Hanlon was on the panel that discussed the "State of the State NPDES Programs"
along with Savage and G. Tracy Mehan III, former EPA assistant administrator for
water and currently a principal analyst for the Virginia-based Cadmus Group.
Permit-Driven Process Problematic
Mehan agreed with both Hanlon and Savage that the "permit-driven process" would
be problematic for states. He said state NPDES programs were getting bogged down
by process with little room remaining for innovation. "There is barely enough
room for the states to keep their heads above water," Mehan said.
Jon L. Craig, water quality director with Oklahoma's Department of Environmental
Quality, objected to the philosophy behind blending as well as the push to place
the burden on state agencies.
Blending 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 and then mixed with treated wastewater and
discharged.
"Shifting the burden from cities to states doesn't address the issue of
pollution," Craig told BNA Oct. 31. Permitting discharges of raw sewage "just
doesn't make sense," he added.
Craig said municipalities have to find solutions to address the problem of raw
sewage overflows. In Oklahoma, Craig said, Tulsa and Oklahoma City are in the
midst of long-term projects to handle sewer overflows without blending. "That is
the way to go," he said.
Oklahoma is one of 44 states that issue their own NPDES permits. According to
the most current EPA estimates, 68 percent of NPDES permits are current as of
July 31, 2000. In 1998, only 54 percent of permits were current. These permits
include those sought by wastewater utilities.
The Clean Water Act specifies that NPDES permits be issued for a five-year term.
Permittees that wish to continue discharging beyond the five year limit must
reapply at least 180 days prior to the expiration date of their permit.
If the permitting authority receives a complete application, but does not
reissue the permit prior to the expiration date, the permit may be
"administratively continued." Permits that have been administratively continued
beyond their expiration date are considered to be "backlogged," as are those
facilities that are awaiting their first NPDES permits, according to EPA.
Reasons for Backlogs Detailed
Hanlon attributed the reasons for a backlog to shortage of trained permit
reviewers, shortage of funds, and an abundance of programs requiring permits.
According to Savage, more than half of the money states receive for clean water
initiatives are directed toward administering permit programs or grant
applications. "What is left is actually spent on actual clean up and restoration
projects," she added.
Defending the proposed guidance on blending, NRDC attorney Nancy Stoner said a
"detailed analysis is necessary to meet legal requirements if the permitting
[agency] wants to authorize anticipated bypasses. It cannot do so without
analysis of feasible alternatives."
Anticipated bypasses are an enforcement tool used by regulatory agencies to
ensure that wastewater utilities subject wastewater to both primary and
secondary treatment processes.
Under current rules, if a wastewater utility expects to skip secondary
treatment, a process in which wastewater is passed over bacteria that decompose
harmful pathogens and break down organic compounds, then it must inform the
regulatory agency and provide a detailed rationale.
Phased Implementation Planned
Consequently, the joint guidance issued by NRDC and NACWA moves the anticipated
bypass provision from the enforcement to permitting so that utilities can
provide a rationale for the circumstances in which they intend to blend treated
and semi-treated wastewater before discharging into lakes, rivers, and streams.
Besides, NACWA senior counsel Alexandra Dunn said, "The lion's share of
analysis, including the cost estimates and hiring of engineering consultants, is
on the wastewater utility."
The permitting authority has to review the analysis, and only when it is issuing
new permits or renewing old ones, she added. "That is why we insisted on a
phased implementation rather than having all utilities come forward to have
their permits renewed."
The joint agreement between NRDC and NACWA ended months of negotiation to
determine when blending would be acceptable. The negotiations began after EPA
was forced to shelve its 2003 draft policy in May just hours before House
lawmakers threatened to adopt an amendment, barring the agency from expending
any resources toward implementing the policy (97 DEN A-1, 05/20/05 ).
EPA's now defunct 2003 draft policy allowed wastewater blending even if there
were feasible alternatives. The policy did require utilities to seek a permit,
but the utilities were not required to submit a detailed analysis that would be
open for public review.
Stoner says the joint draft agreement emphasizes "stronger provisions for
monitoring, reporting and public right to know."