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October 26, 2005 NACWA Fax Alert

Member Pipeline - Fax Alerts - Special Edition - October 27, 2005

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October 27, 2005

NACWA, NRDC Release Joint Blending Guidance, Seek EPA Support

NACWA is pleased to announce that after high-level and extensive negotiations with the Natural Resources Defense Council (NRDC), a mutually agreeable draft final guidance addressing the complex and controversial issue of peak wet weather flow diversions was presented this morning to the U.S. Environmental Protection Agency (EPA). NACWA and NRDC are urging the Agency to finalize the joint Guidance on Peak Wet Weather Flow Diversions as written. The NACWA/NRDC agreement provides EPA with a sound path forward on an issue that had become highly politicized and appeared to have reached an unfortunate impasse. The Guidance’s overall structure and content was endorsed by NACWA’s Board of Directors at its September 20 meeting. Following that meeting, a small and diverse group of NACWA member agency representatives completed negotiation of the details of the Guidance with NRDC over the course of several weeks.

The NACWA/NRDC Guidance recognizes that many municipalities currently have situations in which high peak influent flows during significant wet weather events exceed the treatment capacity of existing secondary treatment units. It notes that in these situations, wet weather flows are sometimes diverted around secondary treatment units and then recombined with flows from the secondary treatment units. The Guidance provides a mechanism for permitting such diversions in publicly owned treatment works’ (POTW) National Pollutant Discharge Elimination System (NPDES) permits with separate sanitary sewer systems. The Guidance does not apply to peak wet weather diversions in combined sewer systems, as such diversions were addressed in the 1994 Combined Sewer Overflow Policy.

A copy of the Guidance is attached, and a summary follows. NACWA members may be asked for comments about the Guidance, its content, or how it applies at the local level. Accordingly, succinct Talking Points also are attached to assist members in responding to such inquiries. These documents can also be found on the Association’s Regulatory Correspondence & Outreach webpage (http://www.nacwa.org/private/reg_outreach.cfm). NACWA and NRDC are encouraging EPA to finalize the Guidance as drafted.

For further information regarding this effort, please do not hesitate to contact NACWA’s General Counsel, Alexandra Dunn, at adunn@nacwa.org or 202/533-1803.

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Guidance Summary
The Guidance addresses many key areas important to NACWA member agencies. Further details of the various elements discussed below can be found in the Guidance.

  1. Acknowledges Past Confusion. The Guidance recognizes that there has been substantial confusion regarding the regulatory status of peak wet weather flow diversions, and thus applies to new or renewed permits.
     
  2. Applies the Bypass Regulation to Blending. The Guidance states that the 40 CFR 122.41(m) bypass regulation applies to peak wet weather diversions that are recombined with flow from the secondary treatment units. This regulation prohibits bypasses of treatment units except where there are “no feasible alternatives.” The Guidance recognizes that there will be cases where a POTW has “no feasible alternative” to peak wet weather flow diversions. Accordingly, if the POTW submits a utility analysis showing that it has “no feasible alternatives” to the diversion, and the permitting authority concurs, the Guidance allows permitting authorities to authorize peak wet weather flow diversions in POTW NPDES permits as anticipated bypasses under 40 CFR 122.41(m)(4)(ii).
     
  3. Impacts on Current Diversions. Facilities with authorized diversions in their permits today have a permit shield under Clean Water Act (CWA) § 402(k) for those activities. Facilities currently diverting without reference to their operations in their permit ideally should take steps to undertake a utility analysis in preparation for their permit renewal and to begin the conversation at the local level.
     
  4. No Feasible Alternatives Analysis Process. The Guidance sets forth the process for determining whether or not feasible alternatives to peak wet weather flow diversions exist.
  1. Under the Guidance, at the time of NPDES permit application or renewal, POTWs seeking approval of peak wet weather diversions as an anticipated bypass will submit a comprehensive analysis (utility analysis) to the permitting authority that covers in detail a number of important topics, such as how the facility is currently using diversions, future plans, existing storage, treatment, and technology options, monitoring, and costs.
  2. Permitting authorities will make the utility analysis publicly available with other draft permit information for public review and comment, and ultimately review and approve or deny the peak wet weather diversions sought by the POTW based on the determination of whether there are feasible alternatives to those diversions.
  3. In cases where diversions are approved, permitting authorities will include permit provisions recognizing any approved peak wet weather diversions as anticipated bypasses, and specify the conditions for allowing such diversions. Other permit provisions to be included will address notice, reporting, and monitoring.
  4. In cases where diversions are denied, the POTW will have an appealable permit decision and can utilize standard permit review processes.
  1. Focus on Site-Specific Factors. The Guidance notes that what constitutes a “peak wet weather event” will be a site-specific determination. The Guidance emphasizes the importance of the POTW, permitting authority, and the general public working together to assess what constitutes peak wet weather in a particular community.
     
  2. Minimum Requirements. All flows that will be diverted from secondary treatment units in peak wet weather events must receive a minimum of primary treatment and any supplemental treatment or technology shown feasible to maximize treatment to the diverted flow. Supplemental treatment or technology will be identified using the factors outlined in the Guidance. Effluent limitations, including the 85 percent removal requirement (unless the POTW meets the requirements of 40 CFR 133.103(d) (less concentrated influent wastewater for separate sewers)) and other secondary treatment requirements and any more stringent limitations necessary to meet water quality standards, must be met by all facilities at the point of discharge, including when diverting.
     
  3. Support for Advanced Technologies. The Guidance recognizes that some POTWs may be implementing technologies more advanced than, or supplementary to secondary treatment, and encourages the use and permitting of such technologies (e.g., membrane, tertiary) where they produce a higher quality effluent.
     
  4. Long Term Use of Diversions. The Guidance notes that POTW reliance on peak wet weather flow diversions as a long-term wet weather management approach should be minimized to the maximum extent feasible taking into account the factors discussed in the Guidance. This element echoes EPA’s statements to this end.
     
  5. Implementation. The Guidance commits EPA to using it in all permitting decisions for POTWs in non-authorized states; reviewing permits in NPDES delegated states to ensure that they are consistent with the Guidance; and states that appropriate enforcement actions will be taken against POTWs that fail to move forward expeditiously to implement their responsibilities under the Guidance.
     
  6. Permit Renewal. Because of the importance of regular analysis under the Guidance of diversions at a particular facility, the Guidance states that NPDES permits for diverting facilities should be timely renewed rather than administratively continued. The Guidance notes that on renewal, the permitting authority’s presumption will be against the utility’s continued use of diversions. However, the presumption can be overcome by the POTW again showing that it has no feasible alternatives to the diversions through a new (or updated) utility analysis.