Member Pipeline - Regulatory - March 2006 Regulatory Update
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| To: | Members & Affiliates, Regulatory Policy Committee, Legal Affairs Committee |
| From: | National Office |
| Date: | March 8, 2006 |
Printer friendly versionThe National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to March 8, 2006. Please contact Chris Hornback, NACWA Director of Regulatory Affairs, at 202/833-9106 or chornback@nacwa.org or Susie Bruninga, NACWA Manager of Regulatory Affairs, at 202/833-3280 or sbruninga@nacwa.org with any questions or information on the Update topics.
Top Stories
NACWA, NRDC Provide More Comments to EPA on
Peak Wet Weather Flow Policy
NACWA continues to work with the Natural Resources Defense Council
(NRDC) to provide the U.S. Environmental Protection Agency (EPA) with input on
how the two organizations would like to see EPA respond to comments received on
the December 2005 proposed peak flows policy. The majority of comments were
supportive of the policy with many seeking clarification on some of the issues.
NACWA and NRDC submitted joint comments on the draft January 23 (www.nacwa.org/getfile.cfm?fn=2006-01-23letter.pdf).
The Association and NRDC are also putting time into developing a draft Question-and-Answer (Q&A) document that EPA would release to accompany a final blending policy. The Q&A would address some common questions that are expected to be asked about the policy and provide additional clarity on some of the key points.
Also, as a convenient reference for Association members, NACWA staff have prepared a matrix summarizing the various comments EPA received on the policy. This matrix is available on the Association’s website (http://www.nacwa.org/getfile.cfm?fn=2006-02-06pwwp.pdf).
New Workgroup Formed to Focus on Issue of
Emerging Pollutants
NACWA’s Standing Committees on Water Quality, Pretreatment, and
Biosolids are increasingly focused on the issue of emerging pollutants. To
address this issue, NACWA President Donnie Wheeler has created an Emerging
Pollutants Workgroup, which will fall under the auspices of the Regulatory
Policy Committee. The Workgroup will tackle issues such as endocrine disrupting
compounds (EDCs), pharmaceuticals and personal care products (PPCPs), and
industrial chemicals such as nonylphenols. The Association is seeking volunteers
to serve on this Workgroup to help review technical literature, follow ongoing
research projects, and brief NACWA leadership on the science and evolving
regulatory issues from their agencies’ perspective. Please contact Chris
Hornback, chornback@nacwa.org or
202/833-9106, if you are interested in participating in the Workgroup.
Air Quality
NACWA Comments on Air Emission Standards for
Perchloroethylene at Dry Cleaners
NACWA expressed concern in comments submitted February 10 about a
proposal by EPA to amend its maximum achievable control technology (MACT)
standard for dry cleaners. NACWA said EPA may be overlooking a potential
exposure pathway for perchloroethylene in the proposal (http://www.nacwa.org/getfile.cfm?fn=2006-02-10OAR2005-0155.pdf).
The EPA proposal would reduce emissions from 15 large dry cleaning operations by
requiring close-looped equipment that prevents the venting of perchloroethylene
(PCE) to the atmosphere and improved leak detection and repair procedures.
Requirements would also be imposed on about 1,300 small dry cleaners that
operate on the ground floors of apartment buildings.
In its comments, NACWA said the proposal posits that once PCE is emitted to the atmosphere as a vapor, it is not likely to “partition significantly into soil, water or sediment.” This leads to the conclusion that the major exposure pathway is inhalation, a presumption not shared by NACWA. The Association said EPA should be careful not to assume that condensed PCE is always recycled back to the cleaning process to be reused. While this may often be the case, the NACWA comments said, separator water is generated that may contain “meaningful quantities” of PCE that, if discharged to sewer systems could leak into groundwater, presenting another potential exposure pathway. The Association is urging EPA to study this issue further and will track the progress of this proposal.
Conferences
Plan Now to Attend NACWA/WEF National Clean
Water Policy Forum
The 2006 NACWA/Water Environment Federation (WEF) National Clean
Water Policy Forum is scheduled for May 2-3 in Washington, D.C. Plan now to
attend and register for the Forum that is designed to keep clean water
professionals up to date on current federal legislative, legal, and regulatory
developments. The Forum will be preceded April 30 - May 1 by the Association’s
committee meetings and presentation of NACWA’s National Environmental
Achievement and Peak Performance Awards. Program information and online
registration is available on NACWA’s Conferences and Meetings webpage (http://www.nacwa.org/meetings/06may).
The hotel reservation deadline at the Capital Hilton is April 7, so reserve your
room today.
EPA Budget
House Appropriators Slam Administration’s FY
2007 Budget Proposal for EPA
Members of the House Appropriations Subcommittee on Interior and the
Environment expressed their displeasure with the Bush Administration’s fiscal
year 2007 budget proposal for EPA that slashes funding for the Clean Water State
Revolving Fund (SRF) by $200 million (from $887 million to $687 million). Both
Republicans and Democrats on the panel decried this cut, and most believe that
some or all of the reduction will be restored. NACWA believes it is untenable
for the federal government to cut support for clean water programs, especially
since the government’s own estimates show the funding gap for infrastructure to
support these programs is in the hundreds of billions of dollars over the next
20 years. See the March Legislative Update for more information (http://www.nacwa.org/private/legreg/legupdate/march06/).
Facility and Collection System
New Committee Co-Chair Named
Adel Hagekhalil, Manager of the Wastewater Engineering Services
Division for the City of Los Angeles Bureau of Sanitation, will become the new
co-chair of the Facility and Collection System (FACS) Committee, joining Marty
Umberg, the Sewer Chief Engineer for the Metropolitan Sewer District of Greater
Cincinnati in the leadership of this key committee. Adel replaces Karen
Pallansch, who stepped aside in February to focus on her new position as the
Engineer-Director of the Alexandria (Va.) Sanitation District. Adel has been the
committee’s collection systems issue leader and will continue in that role for
now.
NACWA to Weigh in on EPA Sewer Overflow
Enforcement Policy
Environmental activist groups have petitioned EPA’s Office of
Enforcement and Compliance Assurance (OECA) to include in a draft policy,
currently being developed, provisions that consider publicly owned treatment
works (POTWs) to be in significant noncompliance (SNC) with their Clean Water
Act permit if they have not implemented the nine minimum controls and a
long-term control plan as required under EPA’s 1994 Combined Sewer Overflow
(CSO) Policy. The CSO Policy, which was codified in a FY 2000 funding bill for
EPA, establishes nine minimum measures POTWs must undertake to reduce or
eliminate overflows that occur, especially during wet weather. NACWA is
discussing the matter with OECA and plans to set up a meeting between OECA
officials and NACWA committee leaders to outline the concerns and ideas of POTWs
that could potentially be affected. The Association understands that that the
draft policy, which has been under development for some time, also addresses SNC
conditions for sanitary sewer overflows (SSOs).
Peak Wet Weather Flow Policy Nearly Final,
NACWA Confronts SSO Issue
With EPA officials predicting that a final policy on peak wet weather
flows may be made final by late spring, NACWA and its members are now setting
their sights on the next major wet weather issue – sanitary sewer overflows
(SSOs). Agency officials have said on a number of occasions over the past
several years that they wanted to resolve the peak wet weather flow issues, also
known as blending, before addressing how to reduce or control SSOs.
Members of the FACS Committee reviewed options at its meeting during NACWA’s 2006 winter conference in Palm Springs, Calif., for addressing the SSO issue. These include working with EPA to use the proposed SSO rule that was signed in early 2001 but never published because it was pulled back for review by the incoming Bush Administration as a sarating point to explore viable approaches. NACWA is preparing an options paper to lay out strategic alternatives for moving forward with the discussion on SSOs.
Pretreatment and Pollution Prevention
NACWA Letter Urges EPA to Expand POTW Sampling
Effort, Offers Help in Data Collection
NACWA has long advocated for EPA to update the “50 POTW Study” it did
in 1982, which evaluated the performance of 50 treatment plants in order to
characterize the fate and occurrence of 129 pollutants in influent, effluent,
and sludge. In line with this effort, NACWA sent a letter March 6 urging the
Agency to increase the number of POTWs that will participate in its current
sampling effort, which EPA hopes will serve to update the 1982 study (http://www.nacwa.org/getfile.cfm?fn=2006-03-06msmith.pdf).
EPA has indicated an interest in only sampling eight or nine facilities in order
to get a “fingerprint” of the range of pollutants entering the headworks and a
better understanding of the removal efficiencies at these plants.
NACWA said samples taken from eight or nine facilities would not be statistically representative of the nation’s POTW community as a whole. Rather, NACWA offered to help the Agency in the sampling effort by providing access to facilities that volunteer to participate and to years of data collected by POTWs and submitted to EPA. “NACWA’s offer is simply to assist in organizing the data in a manner that would most help your sampling effort,” the letter said. NACWA also requested to meet with Mary Smith, Director of EPA’s Engineering and Analysis Division, to further discuss the study.
Changes in Committee Leadership, Name
Announced
NACWA President Donnie Wheeler has named Ben Horenstein, Director of
Environmental Services at East Bay Municipal Utility District in Oakland,
Calif., as the new chair of the Pretreatment and Pollution Prevention Committee,
and Martie Groome, the Laboratory and Industrial Waste Supervisor for
Greensboro, N.C., has been appointed vice chair. Martie will also be NACWA’s
issue leader in the effort to persuade EPA to update its 50 POTW Study.
In addition to new leadership, the committee is also formally changing its name to the Pretreatment and Pollution Prevention Committee, or P3 Committee, to better reflect its mission and that of the National Pretreatment Program.
Water Quality
NACWA Urges EPA to Consider Impacts of Washer
that Uses Silver Ions as Disinfectant
NACWA urged EPA in a February 14 letter (http://www.nacwa.org/private/reg_outreach.cfm)
to consider requiring that a new washing machine coming onto the market be
registered as a pesticide. The washing machine promises to disinfect clothing
for up to 30 days by adding silver ions during the wash cycle. NACWA is
concerned about the impact of discharges of silver to the sewer system and
ultimately to the environment from this appliance and other consumer products
containing pesticides and believes they should be considered for registration
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or other
relevant authority.
NACWA recommended in the letter that EPA require the registration of products that use silver ions as disinfectants, including washing machines, and that EPA obtain data on the silver ion concentrations and wash cycle volumes used in such washing machines. NACWA further stated that this data should be used to impose necessary restrictions to ensure that water quality standards are not exceeded. In addition, ongoing monitoring and reporting of unit sales and silver releases should be required to determine whether registration should be continued or canceled. The Pretreatment and Pollution Prevention Committee will follow up with EPA on this issue.
Final Water Quality Criteria for Diazinon,
Nonylphenol Published by EPA
EPA published the final water quality criteria on February 23 for the
organic compound nonylphenol and the pesticide diazinon (http://www.epa.gov/waterscience/criteria/aqlife.html).
Nonylphenols are often found in the effluent of POTWs because it is a breakdown
product of detergents and surfactants. EPA said these compounds are toxic to
aquatic life and cause adverse reproductive health problems. Under the
freshwater aquatic life criteria, nonylphenols should not exceed a one-hour
average concentration of 28 micrograms per liter more than once in three years
(acute criterion) or a four-day average concentration of 6.6 μg/l more than once
every three years (chronic criterion). For salt water, the acute criterion is a
one-hour average of 7.0 μg/l not to be exceeded more than once in three years.
The chronic criterion is 1.7 μg/l.
Diazinon was banned for residential uses in the United States in 2004, but is still legal for agricultural and non-residential uses as long as labeling requirements and precautions under FIFRA are met. Diazinon is a mobile and persistent compound and can be found in the effluent of POTWs as well as in stormwater runoff. EPA said it is toxic to aquatic life, particularly invertebrates.
The acute freshwater aquatic life criterion for diazinon limits the one-hour average concentration to 0.17 μg/l, not to be exceeded more than once in three years. The chronic criterion is a four-day average of 0.17 μg/l, not to be exceeded more than once in three years. The saltwater acute and chronic criteria are both 0.82 μg/l averaged over the same timeframes.
Though nonylphenol is considered an endocrine disrupting compound, EPA’s criteria only address its toxic effects on aquatic life. NACWA’s newly formed Emerging Contaminants Workgroup will explore the non-toxic effects of nonylphenol and thousands of other chemicals (See related article).
District Court Hears Oral Arguments on Meaning
of “Daily” in TMDL Case
The U.S. Court of Appeals for the District of Columbia Circuit heard
oral arguments in a case initially brought by the activist group Friends of the
Earth (FOE) regarding whether total maximum daily loads (TMDLs) for biochemical
oxygen demand (BOD) and total suspended solids (TSS) in Washington, D.C.’s
Anacostia River should be expressed as true 24-hour loads. Historically, EPA has
interpreted the word ‘daily’ in the Clean Water Act’s (CWA) TMDL provision as
giving EPA ample flexibility to express TMDLs in a variety of ways for the
pollutant at hand, including as monthly or seasonal averages. However, the
three-judge panel reminded EPA that it only has this “flexibility" if the words
of the CWA are ambiguous. Intense questioning by the justices revealed that they
do not believe there is any ambiguity in the CWA’s use of the word ‘daily.’
The court, however, acknowledged the practical policy arguments made by attorneys for EPA and NACWA member agency the District of Columbia Water and Sewer Authority (DCWASA) that without flexibility to express TMDLs in a way that best suits the pollutant and natural spikes in discharge, compliance with TMDL-derived permit limits would be impossible for most combined sewer communities and municipal separate storm sewer system (MS4) permittees. In recognition of the real world difficulty of implementing 24-hour loads in many situations, the court emphasized that EPA could use the power it is granted under the CWA to declare certain pollutants – like BOD and TSS – as not "suitable for such calculation" under the CWA’s TMDL provision. A decision from the court is expected in the coming months – but clearly, the outcome of this case could have major implications for NACWA members, and hundreds of TMDLs, nationwide. More information on the case is available on NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/#friends).