Member Pipeline - Regulatory - May 2005 Regulatory Update
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| To: | Members & Affiliates, Regulatory Policy Committee, Legal Affairs Committee |
| From: | National Office |
| Date: | June 7, 2005 |
Printer friendly versionThe National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to June 7, 2005. Unless another contact person is specifically listed, call Chris Hornback, NACWA’s Regulatory Affairs Director, at 202/833-9106 or e-mail him at chornback@nacwa.org with any questions or input you have concerning the Update topics.
Top Stories
NACWA Looks to Next Steps on Blending as EPA Withdraws Policy
On May 19, the U.S. Environmental Protection Agency (EPA or Agency) sent a
letter to Congress stating that “based on our review of all of the information
received, we have no intention of finalizing the blending policy as proposed in
November 2003.” On the same day, the U.S. House of Representatives passed an
amendment to the EPA budget bill
(http://www.nacwa.org/advocacy/co/2005-05-19STUPAK.PDF) stating that no fiscal
year 2006 “funds from EPA’s budget may be used to finalize, issue, implement or
enforce the proposed [November 2003 EPA blending] policy.” NACWA and a coalition
of municipal groups worked hard to ensure that the House amendment was framed as
narrowly as possible and does not preclude EPA from working toward a consistent,
national policy on blending. Furthermore, as EPA noted in its press release
(http://www.nacwa.org/advocacy/co/051905co.cfm), the Agency will “continue to
review policy and regulatory options to manage this issue” albeit reiterating
the view voiced by EPA officials at NACWA’s May Policy Forum that “blending does
not constitute a long-term solution.” These events, in some ways, change the
landscape very little. Blending continues to be an acceptable practice that
municipalities can use to manage peak wet weather flows. NACWA will continue to
advocate the need for blending.
In light of these actions, the Association will be working closely through its active committee structure to develop next steps on the blending issue both in terms of its congressional and regulatory strategies. In the meantime, blending continues to be a legal and viable wet weather treatment practice and NACWA will continue to make this point clear to policymakers and the public. Given recent activity on blending the legal arena will be an area of strategic focus. On June 3, for example, the U.S. Court of Appeals for the D.C. Circuit decided the Pennsylvania Municipal Authorities Association vs. EPA case in favor of the lower court’s dismissal of the case on the grounds that the regions’ anti-blending policies are not final agency actions subject to review. Visit NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/) for the court’s decision on this case.
Biosolids
NACWA and WERF Release Survey Report on Incinerator Emissions Monitors
On May 19, NACWA and the Water Environment Research Foundation (WERF) released a
report (http://www.nacwa.org/advocacy/co/2005-05-19ra0505a.pdf) from a recent
joint survey effort of Total Hydrocarbon (THC) and Carbon Monoxide (CO)
Continuous Emissions Monitoring Systems (CEMS) in use with biosolids
incinerators. The survey found that biosolids incinerators are consistently
meeting the THC and CO emissions as required by the Part 503 Regulation of the
Clean Air Act. The survey revealed that the monitored THC and CO emissions from
these facilities are consistently in compliance with the regulatory limits of
100 ppm on an average monthly basis. In fact, survey respondents indicated that
their 2003 annual per month average was approximately 27 ppm for THC or 30 ppm
for CO. The survey also found, however, that biosolids incinerator operators are
struggling with operational and maintenance (O&M) issues with these monitoring
systems. NACWA, WERF, and others will work to address the O&M issues discovered
by the survey and engage EPA on this front.
The survey was distributed in May 2004 to all of the known wastewater treatment agencies located within the United States that practice biosolids incineration. Robert P. Dominak, Co-Chair of NACWA’s Biosolids Management Committee and Residuals and Air Emissions Manager at the Northeast Ohio Regional Sewer District, Cleveland, Ohio, developed and oversaw the survey in coordination with NACWA and WERF. For more information see Regulatory Alert 05-05 on the NACWA website (http://www.nacwa.org/private/regalerts/ra05-05.cfm) or contact Will Pettit, NACWA, at 202/833-3280 or wpettit@nacwa.org.
Conferences and Meetings
Plan Now to Attend NACWA’s Summer Conference, July 19 – 22, in Hilton Head, S.C.
Join your clean water colleagues at the Westin in Hilton Head, S.C., July 19 –
22, for NACWA’s annual Summer Conference. This year’s conference, Wastewater
Conveyance and Treatment…Navigating an Uncertain Regulatory Environment, will
examine how the nation’s municipalities continue to make steady progress toward
meeting the goals of the Clean Water Act despite the lack of clear national
guidance on several key issues. With enforcement driving the train on the
management of wet weather flows, many communities are committing millions of
dollars to address sanitary sewer overflows without knowing for sure whether
they will ultimately be in compliance with a national policy that is years from
being developed. Beyond the wet weather arena, the 2005 Summer Conference will
also explore broader collection system issues such as maintenance and
replacement programs, and issues at the community level such as affordability
considerations and long-term planning for infrastructure improvements. Look on
NACWA’s website (http://www.nacwa.org/meetings/05summer) for more information
on registration and a conference agenda.
Pretreatment
NACWA Scores Victory in Key Effluent Guidelines Case
On May 20, the U.S. District Court for the Northern District of California,
relying upon many of NACWA’s legal arguments, dismissed a challenge to EPA’s
recent actions under the effluent limitation guidelines (ELG) program brought by
several activist groups. As an intervenor in Our Children’s Earth Foundation
(OCE) v. EPA, NACWA participated in two dynamic hearings before the California
court, most recently on May 11, and overcame the activists’ objection to the
Association’s participation in the case. The court held that EPA met all the
requirements for the annual ELG review, the ELG biennial report, and ELG
five-year limitations review, agreeing that the Agency has broad discretion to
determine how it conducts these reviews. The court also held that the Clean
Water Act does not require EPA to perform a technological review of all 450
categories and subcategories of ELGs in its biennial reports. The Agency is only
required to establish a schedule for its annual review, and to identify new
categories and propose schedules for their rule development. The court's
discussion relies upon the points that NACWA emphasized in briefs and at oral
argument. It is possible that the activist groups will appeal this substantive
victory for NACWA and EPA. Should that happen, NACWA’s Board will evaluate
further participation by the Association in the case. The court’s decision is
posted to NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/).
For more information on the case, contact NACWA’s General Counsel, Alexandra
Dunn, at 202/533-1803 or adunn@nacwa.org.
June 30 Deadline to Finalize Streamlining Rule Approaches, NACWA Remains Active
NACWA has learned that the long-awaited Pretreatment Streamlining Rule will
likely be sent to the Office of Management & Budget (OMB) for their required
review in the next week. This news comes as the expected June 30 date for
finalization draws near. While the Agency and OMB continue to work toward the
June deadline, it is uncertain whether it will be met. The content of the final
rule is also uncertain at this point. NACWA hopes that its long history of
advocacy on behalf of the rule will result in a meaningful, resource-saving
package in the near future. NACWA will alert the membership of any developments
and will continue to work with the Agency and OMB in the coming weeks to ensure
finalization of the rule. For more information, contact NACWA’s Manager of
Regulatory Affairs, Will Pettit, at 202/833-3280 or
wpettit@nacwa.org.
Security
NACWA Participates in Regional Water Sector Security Workshops
Several NACWA representatives participated recently in the second of three
regional Water Sector Security Workshops, held in Philadelphia, Pa., May 10 –
12. The workshops are being hosted by the Water Environment Federation (WEF),
through EPA funding, to assist water and wastewater (water sector) utilities and
other key stakeholders in determining priority security projects in need of EPA
funding. The two-and-a-half day workshop provided attendees with opportunities
to identify and prioritize projects needing federal funds. NACWA representatives
will also attend the third and final workshop July 6 – 8, in Chicago, Ill.
Participation in this workshop is by invitation only. If you have not received
an invitation and are interested in attending, you may receive one by sending an
email to tcs-events@saic.com. Following the third workshop, WEF and EPA will
release a final report, detailing the needs identified and the recommended
actions to address them. NACWA will alert the membership when the final report
becomes available. Contact NACWA’s Manager of Regulatory Affairs, Will Pettit,
at 202/833-3280 or wpettit@nacwa.org for more information.
Utility Management
NACWA Provides Municipal Input in International Working Session on Asset
Management
In early May, several NACWA members participated in a two-day working session to
explore opportunities to enhance national and international collaborative
efforts to advance asset management for water and wastewater utilities. The
EPA-sponsored working session featured a wide range of stakeholders including
representatives from utilities, academia, consulting firms, and regulatory
agencies. Twelve nations from around the world were also represented.
Specifically, the purpose of the working session was to identify a three to
five-year action agenda for the advancement of asset management practices in the
water sector and in state and local governments. Attendees separated into
numerous breakout sessions to discuss this theme from a variety of perspectives:
1) The Water Sector (particularly the United States); 2) Educational Trainers
(universities and professional organizations); 3) Research Agencies
(professional and academic); and 4) Regulatory Agencies/Government. From each of
these groups arose a list of 10 or more priority needs. At the close of the
second day, each attendee voted on all of the top 10 lists to come up with a
broad-reaching ranked list of needs relating to asset management, which could be
translated into a three to five-year working agenda. These priority lists will
be made available to NACWA as part of EPA’s final report on the working session
which is expected to be released in the coming weeks. NACWA is committed to
staying on the cutting edge of asset management and will remain involved in this
and other activities going forward through its Utility Management Committee.
Please contact NACWA’s Manager of Regulatory Affairs, Will Pettit, at
202/833-3280 or wpettit@nacwa.org for more information.
NACWA Urges All Members to Complete the 2005 Financial Survey by July 8
NACWA mailed its 2005 Financial Survey to all public agency members in April.
The Association urges all members to complete the survey by the extended July 8
deadline. The Survey serves as a comprehensive ‘snapshot’ of treatment
facilities’ financing and management trends and provides critical information
for wastewater treatment agencies to use in determining their respective
benchmarks and goals. Refer to Member Update 05-06
(http://www.nacwa.org/private/membcomm/memupdate/mu05-06.cfm) or contact NACWA’s
Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or
wpettit@nacwa.org
for more information.
Water Quality
NACWA Files Comments on Draft Revisions to Aquatic Life Criteria for Selenium
On May 20, NACWA provided comments
(http://www.nacwa.org/advocacy/comments/2005-05-20NACWAseleniumcmt.pdf) on EPA’s
draft revisions to the aquatic life criteria for selenium (December 17, 2004; 69
Fed. Reg. 75541). NACWA believes the draft criteria values are more
scientifically defensible than the existing values, but does have some concerns
with regard to the chronic criterion fish tissue value and how such a value
would be implemented. Specifically, NACWA supports the draft acute criteria
which acknowledge the differential toxicity of the two dominant species of
selenium, selenite and selenate, to aquatic life and include a sulfate
correction for the selenate criterion. The new criteria for selenite and
selenate are more scientifically defensible than the existing criterion of 20
ug/L. On the other hand, while NACWA believes that the current chronic criterion
of 5ug/L in the water column lacks sufficient scientific basis and should be
changed, it is concerned with EPA’s methodology for selecting the new fish
tissue-based value of 7.91 ug/g and the lack of a clear understanding for how
the criterion will be implemented. These issues and more are discussed in
NACWA’s May 20 comment effort found on the Association’s website
(http://www.nacwa.org/advocacy/comments/2005-05-20NACWAseleniumcmt.pdf).
NACWA
will alert the membership of any developments.
NACWA Testifies in NPDES Case on Water Quality and TMDL Issues, Awaits Decision
On April 27, NACWA and the Virginia Association of Municipal Wastewater Agencies
(VAMWA) provided testimony before the state court in Chesapeake Bay Foundation
(CBF) v. Town of Onancock (Onancock). This came after the two groups filed an
amicus curiae brief in the case on April 19. NACWA now awaits a ruling from the
court. Recognizing that Virginia is in the process of revising nutrient water
quality standards (WQS) and developing total maximum daily loads (TMDLs) for the
Bay, Onancock’s National Pollutant Discharge Elimination System (NPDES) permit
requires the facility to monitor for nutrients, accelerate nutrient removal
planning and maximize current nutrient removal capability. In its March 18
opening brief, CBF argued that Onancock’s permit was improperly issued because
it did not include specific concentration based limits for nutrients. NACWA’s
amicus curiae brief emphasizes that Onancock’s permit properly recognizes that
nutrient permit limits should be pound-based and built upon proper WQS and the
TMDL. The brief also shows that by allowing these pieces to fall into place
first, subsequent facility upgrades will more likely result in measurable water
quality improvements. Asserting that CBF’s suit seeks to trump years of focused
effort by Bay stakeholders, NACWA’s brief notes that both the WQS and TMDL
processes are nearly complete. The brief also references new Virginia
legislation creating a Virginia General Permit and trading program for nutrients
for the Bay watershed. NACWA will alert the membership of any developments.
Visit NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/#cbf) or
contact NACWA’s General Counsel, Alexandra Dunn, at 202/533-1803 or
adunn@nacwa.org for more information.
EPA Establishes FACA to Examine Detection and Quantitation in Water Programs
On May 13, EPA established a Federal Advisory Committee on Detection and
Quantitation Approaches and Uses in Clean Water Act Programs. NACWA will be
represented on the committee by Jim Pletl, Environmental Scientist, Hampton
Roads Sanitation District, Virginia Beach, Va., and Chris Hornback of the NACWA
staff. Other wastewater treatment utility representatives will also participate
in the committee. The purpose of the committee will be to evaluate and recommend
detection and quantitation procedures for use in EPA's analytical methods
programs for compliance monitoring under 40 CFR part 136. The committee will
analyze and evaluate relevant scientific and statistical approaches, protocols,
review data and interpretations of data using current and recommended
approaches. The major objectives are to provide advice and recommendations to
the EPA Administrator on policy issues related to detection and quantitation and
scientific and technical aspects of procedures for detection and quantitation.
NACWA will alert the membership of any developments.