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EPA Proposal on Blending Questioned In Comments Filed by Wastewater Utilities

A proposal by the Environmental Protection Agency to allow wastewater utilities to seek regulatory permission to blend partially treated sewage with treated sewage prior to discharge into the nation's waters is being questioned by operators of wastewater treatment plants, according to comments filed with the agency.
Wastewater utilities are objecting to the premise upon which EPA has proposed its guidance. They also are objecting to the limited circumstances under which the agency is allowing wastewater diversions around a secondary treatment process in sanitary sewer systems.

Wastewater treatment plant operators responded to EPA's proposed policy on "peak weather flows" from heavy rains, which was issued Dec. 20, 2005 (243 DEN A-6, 12/20/05 ).

The proposal reflects the joint blending guidance that the National Association of Clean Water Agencies and the Natural Resources Defense Council developed after five months of negotiations for sanitary sewer systems. NACWA represents the interests of the country's wastewater agencies in Washington, D.C. (208 DEN A-1, 10/28/05 ).

EPA's peak weather flows policy requires an environmental regulator--be it local, state, or federal--to review a detailed list of reasons submitted by wastewater utilities during the permit-renewal process before approving the practice of blending of treated and semi-treated wastewater during heavy rains, prior to its discharge into lakes, rivers, and streams.

The proposal would allow a facility to circumvent treating all wastewater under the "bypass provision" of the Clean Water Act. A bypass is an "intentional diversion of waste streams from any portion of a treatment facility."


Legality of Using Bypass Provision

In comments filed Jan. 20, Clarence Cox, manager of the Parkersburg Utility Board of West Virginia, wrote that EPA cannot legally use the bypass provision of the Clean Water Act as a policy tool for blending.
Cox said EPA's approach is "legally untenable" because EPA's proposal would effectively amend the secondary treatment, bypass, and National Pollutant Discharge Elimination System permitting regulations.

EPA must follow a rulemaking process before proceeding to finalize its approach to blending.

"Because many hundreds of millions of dollars in additional treatment costs would be triggered by the proposed policy, we believe it also requires Office of Management and Budget review," Cox said.

Frank Harksen, president of the Virginia Association of Municipal Wastewater Agencies Inc., said EPA is "erroneously" using a "back-door approach to regulate blending via bypass rules.


'No Feasible Alternative' Is Infeasible

Harksen also said the "no feasible alternative" is restrictive and complicated. He noted that EPA has proposed that utilities use the Combined Sewer Overflow (CSO) financial guidance as the basis for submitting their rationale for no feasible alternatives to blending. However, Harsken said, EPA's CSO financial guidance is so restrictive "that few if any utilities would pass the financial analysis."
In his comments, Peter Slack, government relations associate for the Pennsylvania Municipal Authorities Association, reached the same conclusion as Harksen of VAMWA. He said it was "inappropriate" for regulators to use EPA's financial guidance to decide whether blending would be economical for a utility.

"If the available treatment capacity is effectively utilized, if the intended use of the receiving stream is protected, if there is not an imminent public health hazard, and if the [publicly owned treatment works] does not violate its NPDES permit, then blending should be allowed as the most cost-effective solution, regardless of whether other alternatives are 'feasible,'" Slack wrote.


Guidance Seen Better for Large Utilities

John Montgomery, of the National Rural Water Association, which represents more than 24,000 utility members, said EPA's guidance "will work for large utilities" but not for small utilities serving rural communities of 1,000 people or fewer.
He said few, if any, of NRWA's member utilities employ economists or engineers that would be required to conduct the feasibility analysis that EPA is proposing to require.

NRWA requested that EPA guidance contain provisions for addressing the "unique needs and challenges of small and rural communities."


States, Environmental Groups Seek Greater Clarity

Officials from Washington and New York states urged EPA to provide federal resources to help with the utility analysis portion of EPA's proposed regulatory guidance.
Environmental groups responded similarly to EPA's guidance in seeking clarification and providing federal assistance.

"Although the policy is much needed to ensure that blending is not considered a routine practice, there are many areas in which the policy needs to be clarified and strengthened to ensure that the practice of discharging partially treated sewage is minimized and ultimately eliminated," 16 national, state, and regional environmental groups wrote in comments submitted Jan. 23 with EPA. The groups include American Rivers, Sierra Club, Alliance for the Great Lakes, and Gulf Restoration Network.

The environmental groups urged EPA to develop a permit writer's guide, a website for responding to technical questions regarding the guidance, and an independent board comprising scientists and citizens to review a utility's rationale for blending.


NACWA Defends Guidance

Ken Kirk, executive director of the National Association of Clean Water Agencies, defended EPA's proposed guidance as the "best possible compromise."
Kirk said he did not support the assertion that EPA's proposed peak weather guidance should have been pursued through the rulemaking process. The guidance, Kirk said, "interprets an existing rule. There is no need for a new rule."

He noted that EPA's 2003 policy, which the agency withdrew in May 2005, received 98,000 comments in opposition (97 DEN A-1, 05/20/05 ). In contrast, the "40-odd" comments that EPA has received in opposition to its 2005 new guidance "attest" to the compromise that NACWA reached with NRDC.

Kirk said the wastewater utilities that wrote in opposition do not represent the nation's entire wastewater treatment community. When asked, Kirk said, NACWA did consult with representatives of 10 to 15 member utilities, which regularly blended, when it was crafting its joint guidance with NRDC.

"And they were all on board, as were some environmental groups, EPA's Office of General Counsel, and EPA's Office of Water.

Comments submitted on EPA' proposed peak weather flows policy can be viewed at www.regulations.gov by using Docket ID EPA-HQ-OW-2005-0523.



By Amena H. Saiyid