NACWA Regulatory Update August 2005

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to September 8, 2005. Please contact Chris Hornback, NACWA Director of Regulatory Affairs, at 202/833-9106 or at chornback@nacwa.org or Susan Bruninga, NACWA Manager of Regulatory Affairs, at 202/833-3280 or at sbruninga@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA, Members Participate in EPA Meeting on Pharmaceuticals in the Environment
A U.S. Environmental Protection Agency (EPA) meeting August 23-25 in Las Vegas on pharmaceuticals and personal care products (PPCPs) in the environment focused on the increasing number of studies suggesting low levels of these contaminants found in wastewater influent, effluent, surface water, and groundwater. The meeting left open questions regarding the impacts of PPCPs, how to address them, and to what degree. Researchers who received EPA Science to Achieve Results (STAR) grants to study PPCPs presented findings, some of which suggest possible adverse effects on aquatic life. Most agreed, however, that much more research is needed on possible human health impacts and how PPCPs are entering the environment. EPA officials said the agency is not close to regulating PPCPs, but hinted that these types of compounds may appear on the 2008 contaminant candidate list (CCL) published under the Safe Drinking Water Act.

Representatives from several NACWA member agencies were among the more than 135 people who attended the meeting at EPA’s laboratory in Las Vegas, far more than the roughly 30 attendees the Agency originally expected. The issue could be significant for publicly owned treatment works (POTWs) because of the potential implications for their pretreatment program as well as from the broader public service/environmental stewardship standpoint. On the pretreatment side, hospitals and nursing homes that dispose of their unused chemicals may come under scrutiny. The possibility also exists of having to deal with PPCPs in landfill leachate, which many POTWs treat. Some attending the meeting disagreed over whether most of the pharmaceuticals found in local waterways entered the environment through human excretion, as a representative of the pharmaceutical industry contended, or were the result of unused drugs disposed of in the sewer system. Programs to take back unused pharmaceuticals have been promoted as one way to address the issue, but legal and regulatory roadblocks may hinder their success. For example, some drugs are controlled substances that are subject to Drug Enforcement Agency regulations or are classified as hazardous waste that have to adhere to requirements under the Resource Conservation and Recovery Act (RCRA).

However, there was general consensus that EPA should host another meeting on the topic in 2006 at EPA headquarters in Washington, D.C. NACWA members who attended will be providing the Association with their impressions, which will be used by Association staff as part of an upcoming white paper. Presentations from the meeting should be available soon on EPA’s website (http://www.epa.gov/ncer)

NACWA Voices Member Perspective on EPA’s SSO Fact Sheet
NACWA met with key EPA officials in August to discuss sanitary sewer overflow (SSO) issues, specifically the Agency’s most recent SSO “fact sheet” (http://www.nacwa.org/private/legreg/outreach/2005-06-27draftnpdes.pdf). NACWA Committee and issue leaders told officials from EPA’s Office of Wastewater Management about concerns they have with the Agency’s draft “fact sheet” on SSOs but expressed support about other elements of the document. Specifically, NACWA supports EPA’s efforts to advance the capacity, management, operation and maintenance (CMOM) concept and to address the permitting of satellite collection systems. However, the fact sheet and accompanying model permit language are based on a zero-overflow standard and require the development of CMOM programs with no protection or defense for municipalities in the event of an unavoidable overflow. NACWA believes much of what EPA is trying to accomplish in its fact sheet requires a formal rulemaking process. NACWA leadership and staff are drafting a response to EPA regarding the Association’s concerns about the fact sheet.

Water Quality

NACWA, WERF Webcast Highlights Growing Need to Use UAA Process
More than 100 people tuned in to the August 17 webcast sponsored by NACWA and the Water Environment Research Foundation (WERF) on use attainability analyses (UAAs) and how they can be used to help solve complex water quality challenges. The seminar featured a presentation by Keith Linn, co-chair of the NACWA Water Quality Committee and an Environmental Specialist with the Northeast Ohio Regional Sewer District in Cleveland, who said newer analytical methods make it possible to detect lower levels of contaminants in surface waters, which may prompt tougher numeric water quality criteria that may not be attainable. For this reason, POTWs and other permitted entities should have a better understanding of the UAA process.

Tom Gardner, an Environmental Scientist in the Science and Technology Division of the EPA’s Office of Water, said UAAs are required when designating or removing the Clean Water Act’s fishable/swimmable goals or adopting subcategories of uses that may require less stringent water quality criteria. They not only can be used to support a change to the water quality standards, but can provide a clean, defensible rationale for making that change, he said. The complexity of a UAA depends on a variety of factors including the size of the waterway, the amount of data, and the extent of the use change. He encouraged those pursuing a UAA to work with community groups and others to agree on the type of change and process for achieving it and recommended EPA’s 1998 advance notice of proposed rulemaking (ANPRM) on revising the water quality standards regulations as “good guidance” on the UAA process.

Tom Dupuis, a water resources engineer with CH2M Hill, a NACWA private affiliate, summarized the UAA handbook, Collaborative Water Quality Solutions: Exploring Use Attainability Analyses, developed by NACWA and WERF that will be available later this month. The Handbook describes situations in which a UAA should be considered, factors in the decision process, and possible alternatives to UAAs, such as variances to water quality standards. Variances, Dupuis said, are intended to be temporary, must be defended every three to five years, and are based on the same six factors in the water quality standards regulations (40 CFR 131. 10(g)) that govern UAAs.

Tim Moore, president of Risk Sciences, said appropriate designated uses that need to be protected may vary by state. Limited recreational use is the type of use most states would protect, but some recreational uses may seem suspect. Examples include a golf course built in a river channel that experiences occasional flooding or waterways where public access is prohibited, but people sneak in anyway. Moore questioned whether regulators are obligated to protect a limited recreational use in these types of situations. A waterway may have an existing recreational use designation simply because of people trespassing into an area, he said, but the 1998 ANPRM stated that “the mere presence of people or fish does not necessarily equate with an existing use,” Moore said. Presentations from the webcast will be made available soon on NACWA’s website (http://www.nacwa.org).

Guidance on Tier 2 Antidegradation Reviews, Significance Thresholds Issued by EPA
The U.S. EPA released final guidance on Tier 2 Antidegradation Reviews and Significance Thresholds to state regulators and the Agency’s regional offices in early August. The guidance addresses the implementation of the second tier of antidegradation measures, which protect high quality waters. Tier 2 protection is intended to prevent the degradation of high quality waters beyond a “de minimis” level unless it can be shown, through a public process, that a lower level of water quality is necessary and important. This is the first time EPA has addressed these issues in formal guidance, which may be important to POTWs and industrial dischargers seeking to expand their operations and/or increase their discharges. EPA gives states some discretion in determining what constitutes a “significant lowering” of water quality and has accepted a range of approaches for making that determination. According to the guidance, the best way to define a significance threshold is in terms of the assimilative capacity of the water body. Another approach acceptable to EPA is to use a “threshold value of 10 percent of the assimilative capacity combined with a cumulative cap.” States can "incorporate a cumulative cap on the use of total assimilative capacity" to address multiple or repeated increases in discharges. The guidance said states should define significance in terms of assimilative capacity unless they can show another approach is equally or more protective of high quality waters. A copy of the guidance is available on the NACWA website (http://www.nacwa.org/advocacy/co/2005-08-10antideguid.pdf).

EPA Releases Final 2006 Impaired Waters Listing Guidance
EPA issued its final 2006 Listing Guidance (http://www.nacwa.org/advocacy/co/ 2005-08-05WTran.pdf) for integrating three Clean Water Act reports states must submit regularly to EPA. The next deadline is April 2006. The listing guidance lays out methodologies for determining which water bodies are impaired and require a total maximum daily load (TMDL). The Guidance encourages states to submit integrated lists of impaired waters, water quality reports, and reports on the Great Lakes to the Agency. EPA said it wants all 56 states and jurisdictions to submit their Clean Water Act reports in integrated form by 2008 to help it establish a broad-based national inventory of water quality conditions as well as a comprehensive report on the water quality attainment status of assessed waters and the data to back it up. Among other things, the Guidance goes into significant detail on categorizing waters. Of particular interest to POTWs and other dischargers is Category 4(b), in which alternative pollution controls may be applied in place of a TMDL. EPA said it would evaluate these situations on a case-by-case basis, but states would have to submit their rationales for choosing an alternative control plan over a TMDL. NACWA members may also be interested in the Category 4(c) option for water bodies impaired by certain types of pollution versus a specific pollutant. A TMDL may be required for an impairment caused by a pollutant, but not necessarily from pollution. For example, a stream segment may be impaired because of a lack of adequate flow. In cases where the impairment is not caused by a pollutant, the Guidance directs states to monitor those segments to confirm no pollutant is causing the impairment. The TMDL program has been riddled with problems, much of it a result of inadequate water quality data regarding the assessment of U.S. waterways. This has frequently led to more burdensome regulatory requirements on municipal clean water agencies and other dischargers. NACWA will continue to advocate for consistent, science-based approaches for assessing the quality of the nation’s waters in order to guarantee that federal and state regulators make more informed decisions.

Pretreatment & Hazardous Waste

NACWA Staff, Committee Leaders Discuss `50 POTW’ Study with EPA Officials
NACWA’s Pretreatment & Hazardous Waste Committee leadership met with representatives from the EPA Office of Science and Technology in August regarding a new study that will help to determine if a more comprehensive update to EPA’s 1982 study, Fate of Priority Pollutants in Publicly Owned Treatment Works (or “50 POTW Study”), is needed. NACWA has maintained that an update is critical both for the effluent guidelines program and for the development of sound local limits. EPA has initiated a small-scale study to conduct sampling at up to nine clean water agencies nationwide to determine if a larger update is necessary and what the scope of that study should be. The study will examine both influent and effluent for 674 analytes, including 120 emerging compounds and pharmaceuticals. NACWA officials said at the meeting they were concerned that EPA’s limited database of results from only nine facilities may be too small to draw meaningful conclusions. The Association has committed to working with EPA to explore ways to increase the amount of data with the hope of ultimately studying at least 50 POTWs. NACWA is maintaining a list of facilities that are interested in participating in the study. Contact Susie Bruninga, NACWA Manager of Regulatory Affairs, at (202) 833-3280 or at sbruninga@nacwa.org if your utility is interested in being part of the study.

EPA Issues Draft 2006 ELG Plan; NACWA Seeks Member Comments
EPA released for comment in the August 29 Federal Register its preliminary 2006 effluent guidelines program plan (See Regulatory Alert 05-09 for more information at http://www.nacwa.org/private/regalerts/ra05-09.cfm). The Agency’s 2005 review of existing ELGs and pretreatment standards accompanied the program plan. The Agency also evaluated indirect industrial dischargers that do not have categorical pretreatment standards to determine whether such standards are needed. NACWA staff and Pretreatment and Hazardous Waste Committee leaders met with EPA officials earlier this month on the plan, which singles out the Pulp, Paper, and Paperboard and the Steam Electric Power Generation source categories for detailed review of their ELG and pretreatment standards to determine if changes are needed. The Agency also identified the tobacco products industry as a possible new category for which ELG and pretreatment standards may need to be developed.

Comments are being sought on both the preliminary 2006 ELG program plan and the evaluation of indirect dischargers. NACWA intends to file comments on the evaluation of indirect dischargers and the 2006 ELG program plan by the October 28 deadline and will participate in a public EPA meeting on the plan scheduled for September 20 in Washington, D.C.

Electronic Reporting

EPA to Release Reporting Portion of CROMERR in Three to Four Weeks
The reporting portion of the cross-media electronic reporting and recordkeeping rule (CROMERRR) probably will be signed by EPA at the end of September, NACWA has learned. The Agency has decided to decouple the reporting requirements from the recordkeeping requirements in the rule, which has been in the works for several years. EPA estimates about 1.2 million industrial facilities, including POTWs, are required to submit reports required under any of 10 environmental laws, including the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. CROMERRR was designed to facilitate this process by removing regulatory obstacles to electronic recordkeeping and reporting. POTWs and other industrial dischargers have long sought to have EPA release the reporting provisions separately from the recordkeeping requirements, which many consider to be fatally flawed because they are costly and burdensome (http://www.nacwa.org/private/legreg/outreach/02-27-02CROMERRR.pdf). NACWA will provide information on the rule in a Regulatory Alert soon after it is signed.

Conferences

NACWA’s Law Seminar, National Pretreatment Conferences Set for November
Plan to attend NACWA’s Law Seminar November 9-11 in Santa Fe, N.M. The seminar will focus on critical legal, regulatory, and policy issues facing public agency attorneys and managers every day. National experts will lead panel discussions on the legal issues surrounding collection and satellite system permitting; ensuring successful use attainability analyses (UAAs); and achieving workable whole effluent toxicity (WET) permit limits. The program also features succinct discussions of the latest clean water and administrative court decisions, total maximum daily load (TMDL) issues, as well as the latest on clean air and other regulatory requirements applicable to biosolids operations.

The following week NACWA’s National Pretreatment and Pollution Prevention Workshop November 16-18 in Kansas City, Mo., will feature panel discussions with key EPA officials on the status of the pretreatment program, including the pretreatment streamlining rule, which is expected soon. Other topics include the growing concern about endocrine disruptors, pharmaceuticals and personal care products and what the role of POTWs should be. Detailed agendas on both conferences will be posted on NACWA’s website soon (http://www.nacwa.org/meetings/).