Member Pipeline - Regulatory - January 2007 Regulatory Update
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To: | Members & Affiliates, Regulatory Policy Committee |
From: | National Office |
Date: | January 9, 2007 |
The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the January 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 9, 2007. Please contact NACWA’s Chris Hornback at 202/833-9106 or chornback@nacwa.org or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org with any questions or information on the Update topics.
Top Stories
Effluent Guidelines Plan Mirrors NACWA’s
Comments, Focuses on Emerging Contaminants
EPA’s Final 2006 Effluent Guidelines Program Plan was published in the
December 21 Federal Register (http://www.epa.gov/fedrgstr/EPA-WATER/2006/December/Day-21/w21825.htm).
According to the plan, EPA does not intend to revise any existing effluent
guidelines in the coming year, but the Agency did identify four industries for
study and potential regulation in the future. The Clean Water Act requires EPA
to publish this plan every two years. It outlines EPA’s schedule for performing
annual reviews of effluent guidelines, and for identifying potential new
categories for national pretreatment standards. The Final 2006 Plan
includes the results of EPA’s 2006 annual review of effluent guidelines and its
initial thoughts on proceeding with the 2007 annual review.
EPA’s decision not to revise any existing effluent guidelines follows the recommendations in NACWA’s November 28, 2005 comments to EPA regarding the Preliminary Effluent Guidelines Program Plan for 2006 (http://www.nacwa.org/getfile.cfm?fn=2005-10-27OPP-2004-0385NACWACmts.pdf). NACWA stated that no revisions to effluent guidelines and no new national pretreatment standards are required, and that the industries examined in 2006 are appropriately regulated by local pretreatment programs and certification statements. EPA has completed its study of the paper, pulp, and paperboard category and of the tobacco industry, concluding that no new regulations are required. However, EPA plans to continue its study of the steam electric power generating industry in 2007. In its 2005 comments, NACWA stated that revisions to the steam electric power generation effluent guidelines are unnecessary, but “if EPA decides to proceed with a revision, NACWA would recommend that the Agency consider that the prohibition on discharging polychlorinated biphenol compounds (PCBs) be changed to allow for an appropriate concentration limit, in light of the advances in analytical technology that have occurred (and may continue to occur).”
EPA plans to study three additional industries in 2007: the coal mining industry, the coalbed methane industry, and the health services industry. The health services industry study would likely affect publicly owned treatment works (POTWs), since the Agency’s preliminary information shows that nearly all health services discharge to the sewer system. EPA plans to quantify pollutants that it has little information about, such as endocrine disrupting chemicals, pharmaceuticals, and biohazards, as well as pollutants that it has some information about already, such as mercury and silver. Health services facilities that will be studied include hospitals, doctors’ offices, dental offices and laboratories, and veterinary clinics. EPA is currently accepting comments about the 2007 annual review. NACWA will issue more detailed information about the effluent guidelines program plan and will request member input in an upcoming Regulatory Alert.
NACWA Advocacy Results in Decision Not to
Regulate Biosolids Incinerators under OSWI
NACWA has learned that EPA will not regulate sewage sludge or
biosolids incinerators under the Clean Air Act (CAA) provisions for other solid
waste incinerators (OSWI). While the final regulatory decision has not yet been
published, NACWA expects the Agency to announce soon that sewage sludge
incinerators are not governed by Section 129 of the CAA (covering OSWIs), but
will be further regulated under Section 112 governing the safe operation of
stationary sources. NACWA submitted comments to EPA on August 14, 2006,
reiterating the Association’s long-standing position that sewage sludge
incinerators (SSIs) are not subject to regulation as OSWIs under the CAA.
NACWA’s involvement in this issue began in 1997, when it commented on an EPA
notice of intent to include SSIs as a category of OSWIs regulated by Section 129
of the Clean Air Act. Based largely on information provided by NACWA and its
member agencies regarding biosolids incineration and emissions, EPA ultimately
excluded SSIs from the final OSWI rule that was published in December 2005. EPA
announced in June 2006, however, that it was reconsidering its December 2005
decision in response to a Sierra Club petition, which claimed that EPA had not
properly sought comments on its decision to exclude SSIs from Section 129. EPA
has now reviewed all of the comments in response to its June 2006 notice and has
sent its decision not to regulate SSIs under Section 129 to the White House’s
Office of Management and Budget (OMB) for final review. NACWA will alert the
membership as soon as the final decision is published.
EPA Proposes Permit Fee Rule, NACWA to Comment
On January 4, 2007 (72 Fed. Reg. 293), EPA proposed a rule to
establish financial incentives to encourage states to fund a larger portion of
their National Pollutant Discharge Elimination System (NPDES) permit programs
through fees (http://www.epa.gov/fedrgstr/EPA-WATER/2007/January/Day-04/w22549.pdf).
Assuming an increase in funding for the Section 106 program above the fiscal
year (FY) 2006 level ($169 million), the proposed rule would set aside three
percent of the FY 2006 state allotment, resulting in a $5.1 million incentive
fund. States that collected permit fees of at least 75 percent of the total
state NPDES program costs would be eligible to receive an allotment of these
incentive funds. Only states that collected 100 percent of total NPDES program
costs from permit fees would receive a full share. The rule would take effect in
FY 2008, and comments on the proposal are due to EPA by March 5, 2007.
NACWA issued a Regulatory Alert on January 5 (http://www.nacwa.org/private/regalerts/ra07-01.cfm) that contains more details about the proposal and requests member input. NACWA is interested in hearing from members about:
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How this incentive program and a move toward increased permit fees would impact member utilities;
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To what degree such a move would hinder or benefit municipalities’ relationships with their state counterparts; and
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Whether, based on the proposal, this issue is a priority for utilities at the local level.
Please send your responses to the above questions and/or your utility’s comments on the proposal to NACWA’s Counsel, Nathan Gardner-Andrews, at ngardner-andrews@nacwa.org by February 16, 2007.
Security
EPA Expands Data, Adds Wastewater Treatment
Category to Water Security Tool
EPA’s Office of Ground Water and Drinking Water has expanded the
Water Contaminant Information Tool (WCIT), a secure, online database that
provides information about chemical, biological, and radiological contaminants
of concern for drinking water and wastewater utilities. The total of 93
contaminants of concern in WCIT includes 45 new contaminants that were added as
part of the database’s expansion. EPA also added four new data categories to
WCIT: wastewater treatment, drinking water treatment, environmental impacts, and
infrastructure decontamination. As the Agency noted in its release, improving
the data on WCIT “enables water utilities, public health officials and federal,
state and local agencies to better plan for and respond to intentional or
accidental contamination events.” Wastewater utilities can access the site but,
given the sensitivity of the WCIT data, access to the tool is tightly controlled
via password-protection. To apply for access to WCIT, visit EPA’s website at
http://www.epa.gov/wcit.
This and other security developments will be discussed at the Security &
Emergency Preparedness Committee meeting on Wednesday, January 31, 2007, from
3:45 - 5:30 pm at NACWA’s Winter Conference in St. Petersburg, Fla.
Final Draft Plan for Water Sector Security in
Last Stages of Review
The final draft Sector Specific Plan (SSP) for the water sector was
sent to the White House for approval on December 8, 2006. The SSP has two
primary audiences, the Department of Homeland Security (DHS), which will use the
plan to develop programmatic and funding priorities across all sectors, and
water sector utility managers, who can use it as an informative tool for their
security management programs and planning efforts. The document was targeted for
release by the end of 2006, but completion is now expected later this month. The
SSP was a joint effort led by EPA with significant input from a Work Group of
water/wastewater sector organizations, including NACWA, that are represented on
the Government Coordinating Council (GCC) and the Water Sector Coordinating
Council (WSCC). The SSP partners explored and developed the sector’s vision,
security goals, protective programs, and research priorities, and identified the
process through which sector security progress and critical assets are to be
measured and prioritized. The Work Group also described in detail the unique
characteristics and risk landscapes of drinking and wastewater systems. In late
December the WSCC sent a letter supporting the draft final version of the SSP,
with the condition that no major changes are made by the White House in its
review of the document. NACWA will notify members when the SSP is released in
its final form.
Utility Management
NACWA Attends EPA Forum on Watershed
Approaches to Utility Management
NACWA participated in a forum December 4-5, 2006 to help EPA examine ways to
better facilitate watershed approaches to utility management. Although NACWA was
invited to attend the EPA forum as an observer, a number of NACWA’s member
agencies were asked by the Agency to participate and present case studies,
including the Philadelphia Water Department (Pa.), Sanitation District No. 1
(Ky.), San Antonio Water System (Tex.), Portland Bureau of Environmental
Services (Ore.), and Clean Water Services (Hillsboro, Ore.). Participants
discussed ways for EPA to promote a holistic, watershed approach to utility
management and to assist utilities in making the case for the cost-effectiveness
of local and regional watershed approaches. The case studies highlighted the
tremendous efforts some communities have made to integrate their efforts to
improve water quality. From integrated municipal permits (including all
treatment plants and stormwater discharges under a single permit) to planning
efforts on a community scale (integrating low impact development and other smart
development practices into the daily operations of all municipal departments),
it was clear that many NACWA members are already establishing themselves as
leaders in this area. A major item of discussion during the forum was the
existing barriers and regulatory hurdles that were preventing other communities
from taking a similar approach. A final report outlining the forum’s work will
be published in the coming weeks and NACWA will make the report available to its
members.
GASB Finalizes Statement on Pollution
Obligations
The Governmental Accounting Standards Board (GASB) has finalized its Statement
No. 49, governing the financial reporting of pollution remediation obligations.
NACWA alerted its members to the draft Statement in March 2006 (http://www.nacwa.org/private/regalerts/ra06-01.cfm)
and provided comments on the draft on May 19, 2006 (http://www.nacwa.org/getfile.cfm?fn=2006-05-19GASB.pdf).
The standards do not apply to pollution prevention or control obligations with
respect to current operations, such as installing additional treatment equipment
at a wastewater plant to meet a total maximum daily load for nutrients. Instead,
the reporting standards apply to any obligations to address the current or
potential detrimental effects of existing pollution by participating in
remediation activities, like cleaning up an old hazardous waste spill or
removing asbestos. Paragraph 11 of the final Statement outlines the ‘obligating
events’ that would trigger reporting.
The final document also contains some example scenarios where the standards would apply, including brownfields remediation, leaking underground storage tank cleanup, water pollution from an abandoned waste dump, and asbestos removal. However, despite NACWA’s request to include additional clarification in the final standard, the applicability of the standards is still somewhat ambiguous for certain scenarios (e.g., clean-up obligations following a sanitary sewer overflow or contaminated property discovered during collection system replacement activities). GASB Statement No. 49 takes effect for all financial statements covering periods beginning after December 15, 2007 and can be ordered online at http://gasbpubs.stores.yahoo.net/publications-statements-of-standards.html. A question and answer document about the statement is also available online at http://www.gasb.org/news/PROFact.pdf.
Water Quality
NACWA Files Intervention in BEACH Act Case
NACWA filed a motion (http://www.nacwa.org/private/littrack/#nrdcepa)
on December 14 to intervene in Natural Resources Defense Council (NRDC)
v. Environmental Protection Agency, an important case involving
recreational water quality criteria currently pending in the U.S. District Court
for the Central District of California. The case concerns EPA’s failure to meet
certain milestones established by the Beaches Environmental Assessment and
Coastal Health (BEACH) Act requiring the Agency to establish new recreational
water criteria. Citing the fact that “EPA’s failure to comply with the BEACH Act
has an immediate and substantial impact on NACWA’s member agencies,” the motion
said the Association’s interest in the case is “to protect and preserve the
interests of its members nationwide.” Furthermore, the motion states that
“NACWA’s members have a vital interest in being involved at all stages of
regulatory development in order to protect the current and future interests of
their constituents,” including the ability to plan appropriately for future
financial constraints. Early signs suggest that NRDC may oppose NACWA’s entry
into the case. However, NACWA has overcome such opposition in past cases and
hopes the court will recognize NACWA’s interest and allow the intervention.
NACWA Files Reply Brief, EPA Releases New
Documents Relating to TMDL Case
NACWA submitted a reply brief December 8 to the U.S. Supreme Court in
Friends of the Earth v. EPA, responding to a brief filed in November 2006
by EPA opposing review of the case. NACWA’s reply brief reiterates our support
for High Court review of the D.C. Circuit ruling that all total maximum daily
loads (TMDLs) must be expressed in daily terms only, and challenges EPA’s
assertions that the recently issued Agency guidance on TMDLs (http://www.nacwa.org/getfile.cfm?fn=2006-11-15anacostia.pdf)
is sufficient to resolve the legal uncertainty created by the D.C. Circuit
decision. The NACWA brief states that review is necessary because of the current
split between the D.C. Circuit and Second Circuit over the meaning of the word
“daily” in TMDLs and because the recent EPA guidance memorandum “fails to
resolve the significant legal uncertainty created by the circuit conflict, is
contrary to EPA’s existing regulations, and will trigger additional litigation.”
The brief further states that EPA’s guidance “exacerbates rather than solves the
controversy over the conflict between the circuits,” thus creating a need for
Supreme Court review.
NACWA also sent a letter (http://www.nacwa.org/getfile.cfm?fn=2006-12-20epatmdl.pdf) to Benjamin Grumbles, Assistant Administrator for EPA's Office of Water, stating that “EPA’s guidance only compounds the ambiguity and does not provide clarity or certainty for the regulated community.” Although EPA is not accepting formal comments on its new guidance, the letter encouraged EPA to review the arguments in NACWA’s reply brief and “give serious consideration to revising the document to make it more comprehensive and helpful to both regulated and regulatory agencies.”
NACWA is supporting its member agency the District of Columbia Water and Sewer Authority (D.C. WASA) in requesting Supreme Court review. The Supreme Court will make a decision whether to review the case on January 12, 2007. A copy of NACWA’s filings in this case may be found on the Litigation Tracker webpage (http://www.nacwa.org/private/littrack/#friends), including the reply brief (http://www.nacwa.org/getfile.cfm?fn=2006-12-06nacwa_rb.pdf).
In addition to its November 2006 guidance on the daily load issue, EPA has also recently released for comment two other documents that provide additional technical justification for EPA’s proposed approach to address the D.C. Circuit’s decision, requiring the development of a ‘daily load expression’ in the TMDL, but not requiring direct implementation of the daily number in NPDES permits:
- EPA draft fact sheet, Developing Daily Loads for Load-based TMDLs: In its November 2006 guidance memorandum, EPA references a series of forthcoming fact sheets that will provide more in-depth information on technically sound ways of developing the ‘daily’ load component of the TMDL. The first of the proposed fact sheets is now available at http://www.nacwa.org/getfile.cfm?fn=2006-01-05factsheet.doc.
- EPA’s draft technical document, An Approach for Using Load Duration Curves in Developing TMDLs: The purpose of this document (http://www.nacwa.org/getfile.cfm?fn=2006-12-15durcurve.pdf) is to provide a description of and instruction on the use of duration curves, with an emphasis on TMDL development, and to present examples explaining how duration curves can be used for watershed assessments and water quality management purposes. This document also describes several approaches for developing a daily load expression for TMDLs computed for longer term averages: Appendix B describes concentration-based TMDLs and Appendix C describes a load duration curve. These draft appendices supplement the other technical documents EPA is developing to provide options to translate non-daily loads into daily expressions.
- EPA is accepting comments on these technical documents until January 31. Please contact Chris Hornback at 202/833-9106 or chornback@nacwa.org if you have comments.
NACWA Works with EPA on Experts Panel to Guide
Recreational Use Criteria Research
NACWA and several member agency representatives met with EPA in December to help
define the scope of a March 2007 Experts Workshop and identify key issue areas
for the development of new recreational water quality criteria. Many of the
stakeholders, including NACWA and several state representatives, discussed with
EPA their frustration regarding the Agency’s 1986 criteria for bacteria and the
lack of implementation guidance. The timing of EPA’s effort appears to be
related to a lawsuit filed in August by the Natural Resources Defense Council
(NRDC) over the Agency’s missed deadlines under the Beaches Environmental
Assessment and Coastal Health (BEACH) Act for setting recreational water quality
standards and for failing to update its 1986 bacteria criteria.
The December meeting did demonstrate, however, that EPA is interested in moving forward with the critical research and policy work needed to develop scientifically sound recreational water quality criteria that can be applied to a wide range of Clean Water Act (CWA) programs and lead to improved protection of human health. Participants generally agreed that the expert panel should consider a range of options, including the possibility of a “toolbox” of multiple criteria and fecal indicators. This toolbox would apply to other CWA applications, including National Pollutant Discharge Elimination System (NPDES) permitting, and allow for different criteria for different water types.
EPA said it does not expect this process to result in a set of consensus recommendations for moving forward, but believes it will help the Agency set its research and criteria development agenda for the next three to five years. Follow-up after the 2007 Experts Workshop will be needed to ensure EPA moves forward with the development of a plan. NACWA views the makeup of the panel of experts at the 2007 Workshop to be critical and has learned that at least one member representative from the NACWA Pathogen Workgroup has been selected to participate. NACWA is now working with EPA to ensure additional municipal representatives are included. EPA expects to formally announce the list of experts soon. Presentations from the December meeting are available on NACWA’s website (http://www.nacwa.org/private/reg_outreach.cfm) and the Association will alert the membership to any developments on this issue.
New Information Available on Status of State
Nutrient Criteria Development
NACWA recently received new information regarding the status of state nutrient
criteria development. Four states/jurisdictions – Hawaii, Tennessee, Oklahoma,
and the District of Columbia – have completed their criteria and have had them
approved by EPA. EPA’s new N-STEPS website (http://n-steps.tetratech-ffx.com/)
will soon have additional information on the criteria development progress of
other states and information about the various approaches states are using. Some
additional information regarding the development of nutrient criteria is
available on the Association of State and Interstate Water Pollution Control
Administrators’ (ASIWPCA) website (http://www.asiwpca.org/programs/wqs.htm).
EPA also recently released its Draft Nutrient Criteria Technical Guidance Manual: Wetlands, giving state and tribal water quality managers guidance for the first time on how to set nutrient criteria for wetlands. The document does not contain specific nutrient criteria for any wetlands in the U.S., but it does present EPA's scientific recommendations on defensible approaches for developing regional nutrient criteria. The draft document and information on providing comments is available on EPA’s website (http://www.epa.gov/waterscience/criteria/nutrient/guidance/wetlands/index.html).
EPA Releases Unregulated Contaminant
Monitoring Rule for Drinking Water
EPA published its plans for the second Unregulated Contaminant Monitoring
Regulation cycle (UCMR 2) in the January 4, 2007 Federal Register (http://www.epa.gov/fedrgstr/EPA-WATER/2007/January/Day-04/w22123.htm),
as required by the 1996 amendment to the Safe Drinking Water Act. EPA will use
data collected in the UCMR 2 to determine if additional contaminants require
regulation by the Agency. Increasingly, what happens in the drinking water
sector impacts clean water agencies and vice versa, as discussed in detail at
NACWA’s December 12, 2006 Strategic Watershed Agenda – Action Planning
Session. If new contaminants are regulated for drinking water, clean water
agencies may also face new requirements for contaminant removal in order to
protect drinking water sources. The UCMR 2 cycle will occur from 2008 through
2010, with approximately 4,000 public water systems monitoring their drinking
water for 25 unregulated chemicals using five different analytical methods.
Analysis of the data will provide EPA with the occurrence of these chemicals and
an estimate of the population exposed to the chemicals. More information about
the UCMR 2 is available on EPA’s website (http://www.epa.gov/safewater/ucmr/ucmr2).
EPA Releases Ecological Benefits Assessment
Strategic Plan
EPA released its first Ecological Benefits Assessment Strategic Plan
(EBASP), a peer-reviewed plan to evaluate the potential ecological benefits of
national environmental policies. According to Benjamin Grumbles, Assistant
Administrator for EPA's Office of Water, "this plan will boost environmental
protection by advancing knowledge of ecosystem benefits. Understanding the value
of a clean stream or a healthy coast informs decisions and improves
environmental results." The EBASP was developed by management and staff of
several EPA offices, including the Office of Water. The plan aims to “improve
Agency decision-making by enhancing EPA’s ability to identify, quantify, and
value the ecological benefits of existing and proposed policies.” Ecological
benefits are defined as “the contributions to social welfare derived from
ecosystems.” The EBASP includes a comprehensive list of actions recommended for
improving ecological benefits assessments, as well as a strategy for
implementing these actions. More information on EBASP is available on EPA’s
website:
http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/EcologBenefitsPlan.html.
EPA Seeks Nominations for Water Quality
Trading Awards
EPA is seeking nominations for its Blue Ribbon Water Quality
Trading Awards Program. The awards will recognize outstanding leadership in
designing or implementing water quality trading programs and policies that have
achieved or will achieve environmental and economic benefits. NACWA’s members
have made it increasingly clear that these trading programs are becoming more
common and important as an innovative method for meeting Clean Water Act
requirements. NACWA encourages clean water agencies who are already implementing
water quality trading to achieve environmental improvement to seek recognition
by applying for this award. The deadline for applications is January 16. More
information is available on EPA’s website:
http://www.epa.gov/owow/watershed/trading/awards.html.