Member Pipeline - Regulatory - September 2006 Regulatory Update
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| To: | Members & Affiliates, Regulatory Policy Committee |
| From: | National Office |
| Date: | September 6, 2006 |
Printer friendly versionThe National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to September 6, 2006. Please contact Chris Hornback, NACWA at 202/833-9106 or chornback@nacwa.org or Cynthia Finley, NACWA at 202/296-9836 or cfinley@nacwa.org with any questions or information on the Update topics.
Top Stories
NACWA Comments on EPA’s Reconsideration of
Sewage Sludge Incinerator Regulations
NACWA submitted comments on August 14 to EPA reiterating the
Association’s long-standing position that sewage sludge incinerators (SSIs) are
not subject to regulation as other solid waste incineration units (OSWIs) under
the Clean Air Act. 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, 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.
In its August 2006 comments (http://www.nacwa.org/getfile.cfm?fn=2006-08-14EPA-HQ-OAR-2003-0156.pdf) to EPA, prepared with the support of NACWA’s Targeted Action Fund (TAF), the Association emphasized that SSIs are already adequately regulated under the Clean Water Act biosolids regulations (40 CFR Part 503) and that EPA had identified SSIs as an area source category under Section 112 of the Clean Air Act (for which regulations will be developed in the near future), precluding their regulation under Section 129. Since SSIs are already regulated and, therefore, pose little risk to human health or the environment, the increased costs to SSI operators to comply with Section 129 would not result in corresponding benefits. NACWA also argued that biosolids are not solid waste, as defined by the Resource Conservation and Recovery Act (RCRA), and that Section 129 only applies to incinerators that accept ‘solid waste’ from commercial establishments, industrial establishments, or the general public, while SSIs only accept waste from publicly owned treatment works (POTWs).
SSIs continue to serve as a safe, cost-effective biosolids management option under current regulations. Regulating SSIs as OSWI units would effectively remove this option for POTWs. NACWA will continue to ensure that SSIs are not subject to such unnecessary regulations.
TMDL Issues Heat Up, NACWA Weighs in with
Supreme Court
NACWA filed a brief (http://www.nacwa.org/getfile.cfm?fn=2006-08-24WWPUSSCAmicus.pdf)
with the U.S. Supreme Court on August 24 in support of the D.C. Water and Sewer
Authority’s (D.C. WASA) petition for review of the Court of Appeals for the D.C.
Circuit’s April 25 decision that total maximum daily loads (TMDLs) must specify
daily pollutant loadings as opposed to monthly, seasonal, or annual loads. NACWA
has been following this issue on both the legal and regulatory fronts, and
recently submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-07-27DLcmts.pdf)
to EPA on a draft policy statement intended to interpret the D.C. Circuit’s
decision. NACWA expressed overall support for, as well as specific concerns
with, EPA’s approach for addressing the court’s ruling and now expects EPA to
put its work on the policy on hold until the Supreme Court decides whether to
review the case.
EPA has also been developing guidance on phased and adaptive TMDLs with the intent of encouraging more use of these concepts in TMDL implementation. An August 2 memorandum, available on NACWA’s website (http://www.nacwa.org/getfile.cfm?fn=2006-08-02phtmdl.pdf), is designed to clarify the concepts of "phased" and "adaptive" TMDLs. NACWA reviewed earlier versions and this final document is an improvement. It provides relatively straightforward explanations of some difficult TMDL concepts, and NACWA members may find it useful in TMDL negotiations. Members of NACWA’s Water Quality Committee have also finished their review of a draft report from an effort NACWA has been involved with since 2003 on the issue of when and how the concept of adaptive management should be used in the TMDL program. Dr. Ken Reckhow of Duke University, former chair of the National Academy of Sciences (NAS) panel that in 2001 issued a review of the current TMDL program’s effectiveness, Assessing the TMDL Approach to Water Quality Management, convened a panel of experts to develop a report on adaptive TMDLs. NACWA agreed to be a co-sponsor of the panel's work using the TAF to support this effort. NACWA submitted its comments on September 5, and expects a new draft of the report to be released for external review this fall.
Air Quality
New Standards for Internal Combustion Engines
May Have Broad Implications
On August 29, 2006, NACWA submitted comments to EPA regarding
proposed regulations for internal combustion engines (ICE) (http://www.nacwa.org/getfile.cfm?fn=2006-08-25cmts.pdf).
The proposed regulations are for new source performance standards for stationary
spark ignition ICE and emission standards for hazardous air pollutants for some
stationary reciprocating ICE (http://www.epa.gov/fedrgstr/EPA-AIR/2006/June/Day-12/a4919.pdf).
NACWA’s Air Quality Committee has reviewed the proposed standards and found that
the requirements will impact many clean water agencies. Though compliance with
the standards will be relatively simple — clean water agencies will need to buy
only engines certified under the new standards — it may pose problems for
agencies using unconventional fuels such as digester gas. Engine manufacturers
may be reluctant to certify their engines for these unconventional fuels,
leaving the responsibility for performance testing and reporting in the hands of
the owner. NACWA’s primary concern with the proposal is the complexity and
length of the provisions and the Association has recommended that EPA develop
flow charts or other visual aids to more clearly explain the applicability of
the requirements. Comments on the standards are due by October 11 (the original
September 11 deadline was extended on July 27). Members should feel free to draw
from NACWA’s comment effort as they develop their own, site-specific comments.
Biosolids
NACWA Supports Challenge of Biosolids Ban by
Southern California Members
NACWA is supporting the efforts of its members, the City of Los
Angeles, the Sanitation Districts of Los Angeles County, and the Orange County
Sanitation District, and others in their legal challenge of a ban passed by
voters in June on the importation and land application of biosolids in Kern
County, California. NACWA issued a press release (http://www.nacwa.org/advocacy/releases/081506.cfm)
August 15th announcing its support of the challenge, reiterating that
municipalities must be allowed to manage their biosolids in a safe,
environmentally friendly manner and in compliance with EPA regulations. NACWA
members in Southern California have spent millions of dollars to ensure the safe
and responsible management of their biosolids, meeting even Kern County’s strict
standards for quality and monitoring. The fate of this challenge may have
implications outside of Kern County, so NACWA will be following it closely.
Facility and Collection Systems
EPA to Hold CSO Workshops for Small
Communities, LTCP-EZ Tool Unveiled
EPA has developed a planning tool, LTCP-EZ, to help small communities
develop long term control plans (LTCPs) for combined sewer overflows (CSOs).
LTCP-EZ will be introduced at two one-day workshops sponsored by EPA, with
topics including CSO controls for small communities, the Presumption Approach,
and affordability. Workshops are scheduled for September 19 in Flatwoods, West
Virginia and September 26 in Columbus, Ohio. Registration is free but must be
submitted at least five business days before the workshops. For more
information, contact Tim Schmitt of Limno-Tech, Inc. at
tschmitt@limno.com.
New EPA Report on Emerging Technologies for
Conveyance Systems
EPA has published a new guide, Emerging Technologies for
Conveyance Systems: New Installations and Rehabilitation Methods (http://www.epa.gov/owm/mtb/epa-conveyance-report.pdf).
The guide is intended for owners and operators of sewage collection systems who
need cost-effective methods for system maintenance and repair of existing
systems or installation of new systems. Categories of technologies include large
and small diameter sewers, manholes, capacity restoration, and conveyance system
evaluation and management. Nearly 100 technologies are presented, with the
objective, state of development, technical description, cost estimates, and
sources for more information provided for each technology. Technologies are also
compared according to a set of evaluation criteria, but no recommendations are
given for using one technology instead of another. The information provided in
the guide should be a useful first step for evaluating methods for updating
older conveyance systems and constructing new systems.
Conferences
Time is Running Out! Plan Now to Attend
NACWA’s Pretreatment Workshop
Make your plans soon to attend NACWA’s 2006 Pretreatment and
Pollution Prevention Workshop scheduled for October 4-6, in New Orleans,
Louisiana, at the Royal Sonesta Hotel in the heart of the city’s French Quarter.
The cutoff date for reservations at the conference rate of $153 per night is
September 12. This year’s Workshop will provide all of the usual
regulatory updates and the latest on implementation of the Pretreatment
Streamlining Rule. In addition, in-depth discussions on emerging contaminants in
consumer products, hospital decontamination wastewater, surfactants, and mercury
are planned. A special session will feature first-hand accounts of the recovery
efforts at the Sewerage & Water Board of New Orleans in the wake of Hurricane
Katrina. Additional details and online registration are available on NACWA’s
website (http://www.nacwa.org/meetings/06pret/).
Enforcement
EPA Drafts Guidance on Significant
Noncompliance for Overflows
NACWA has obtained a draft version of EPA’s new policy on significant
noncompliance (SNC) for sanitary and combined sewer overflows (http://www.nacwa.org/getfile.cfm?fn=2006-08epasnpdraft.pdf).
NACWA has been tracking the development of this document for some time, but had
not seen any earlier drafts. In February, environmental activist groups
petitioned EPA’s Office of Enforcement and Compliance Assurance (OECA) to
include in the draft policy provisions that would deem publicly owned treatment
works (POTWs) to be in significant noncompliance with their Clean Water Act
permit if they had not implemented the nine minimum controls and a long-term
control plan as required under EPA’s 1994 Combined Sewer Overflow (CSO) Policy.
NACWA made its concerns about such an approach known to OECA officials, but the
Association was not able to comment on the policy in any detail, since EPA would
not share the draft. Additional details on the draft policy will be distributed
in a forthcoming Legal Alert, but an initial read does indicate that CSO
communities who have “substantially failed” to implement the nine minimum
controls or who have failed to submit an “approvable LTCP [long-term
control plan]” could be considered in significant noncompliance. OECA is not
formally seeking comment on this draft, but NACWA will be reviewing it in more
detail and will likely meet with OECA officials in the coming weeks.
EPA to Post Clean Water Act Penalty Notices on
Internet
On August 29, EPA issued a notice that it intends to provide public
notice on the internet for Clean Water Act and Safe Drinking Water Act penalties
(http://www.epa.gov/fedrgstr/EPA-ATER/2006/August/Day-29/w14315.pdf).
Previously, public notices were usually provided through local newspapers. EPA
is now encouraging the Regions to post the notices on the Agency’s website as a
cost-effective way of making the notices more easily accessible for a wider
audience and for a longer period of time. In some cases where Internet access
may be limited, the Regions may still post notices in other media to supplement
the Internet notices.
Water Quality
NACWA-Endorsed Mercury Method Poised to be
Finalized
After years of NACWA advocacy on the need for a more cost-effective, low-level
mercury analytical method, EPA has signed a final rule that would promulgate
Method 245.7. Proposed for approval and incorporation into 40 CFR Part 136 in
April 2004 (69 Fed. Reg. 18166), this new method will give municipalities
an EPA-approved method for measuring relatively low levels of mercury in their
influent without having to use the more expensive low-level method, Method 1631.
Method 245.7 will also be useful for industrial dischargers who need to comply
with POTW local limits, but who do not need the sensitivity of Method 1631. The
final Method 245.7 is just one component of a much larger final rule that will
approve, withdraw, or modify several other analytical methods. While the final
rule has yet to be published in the Federal Register and NACWA has not
yet seen a pre-publication version, we have been told that the final rule
essentially approves virtually everything in the April 2004 proposal, which is
available on EPA’s website (http://www.epa.gov/waterscience/methods/update2003/index.html).
The two potential exceptions to this are some changes to an immunoassay for
atrazine in drinking water, and the likelihood that EPA will defer taking final
action on a proposed new whole effluent toxicity (WET) test using luminescent
bacteria. NACWA’s comments on the proposed rule (http://www.nacwa.org/getfile.cfm?fn=2004-06-07cmtsOW-2003-0070.pdf)
raised concern about this new WET test procedure and the Association will review
the entire final rule when it becomes available to assess what other changes
were made.
EPA Guidance, International Conference
Highlight the Importance of Mercury Issues
NACWA is reviewing a new draft EPA guidance (http://www.epa.gov/waterscience/criteria/methylmercury/)
released August 8 for implementing the Agency’s 2001 methylmercury criteria for
fish tissue. NACWA’s Mercury Workgroup has been seeking the release of this
guidance for some time and will submit comments on the draft by the October 10
deadline. NACWA’s primary concern with the implementation of a fish-tissue based
water quality criterion is the likelihood that many states may seek to translate
the fish tissue number into a water column number in an attempt to make writing
and enforcing permit limits easier. Initial impressions of the guidance are
positive and EPA seems to be encouraging direct implementation of the fish
tissue number, cautioning states that converting to a water column number can be
very complicated.
The release of the draft guidance coincided with NACWA’s participation in the Eighth International Conference on Mercury as a Global Pollutant, held August 6-11 in Madison, Wisconsin. The conference brought together more than 1,200 people from 69 nations to discuss the latest advances in the understanding of environmental mercury pollution. NACWA, via its TAF, co-sponsored the event, and the Association showcased the numerous studies, reports, and other information that the Mercury Workgroup has produced over the last few years (http://www.nacwa.org/advocacy/merc_issues.cfm). While many at the conference focused on improving current knowledge about the sources and impacts of mercury in the environment, NACWA’s members again demonstrated that they are on the front line of taking practical steps to improve the control of mercury releases to the environment.