AMSA Regulatory Alert (RA 03-14)

To: Members & Affiliates, Wet Weather and Legal Affiars Committees
From: National Office
Date: November 18, 2003
Subject: MEMBER INPUT SOUGHT FOR AMSA COMMENTS ON PROPOSED BLENDING POLICY
Reference: RA 03-14

Action Please By:
December 15, 2003

The U.S. Environmental Protection Agency (EPA or the Agency) is seeking comments on its November 7 proposed blending policy, which: 1) provides a proposed interpretation of the bypass provision (40 CFR 122.41(m)) as it applies to alternate wet weather treatment scenarios at publicly owned treatment works (POTW) treatment plants that involve blending; and 2) provides draft guidance on how such an interpretation should be implemented. The Association of Metropolitan Sewerage Agencies (AMSA) supports the general concept of the proposed policy because it clearly states EPA’s long-standing but unwritten policy that blending is a legal and environmentally sound practice for managing peak wet weather flows at POTWs.

AMSA has worked consistently to voice POTW concerns regarding the blending policy to EPA to ensure that the perspective of the wastewater community is incorporated in the guidance. Once the Association received an early version of the draft guidance it provided an overview of it to the Wet Weather Committee immediately via listserv on November 4. That same day, AMSA distributed a Special Edition FaxAlert to the membership on the blending issue, as well as a press release that was instrumental in voicing the views of POTWs in local, city, and national media. This Regulatory Alert provides members with a detailed discussion of the proposal’s provisions and seeks member input on the guidance’s potential ramifications for POTW operations.

As anticipated by AMSA and its Wet Weather and Legal Affairs Committees, which worked extensively in support of EPA’s publication of a national blending policy, EPA’s proposal clarifies that blending is not a prohibited bypass and can be authorized in a National Pollutant Discharge Elimination System (NPDES) permit if six key “principles” are followed. The policy’s substance — the six principles — and the specific issues on which EPA is seeking comment are detailed in this Regulatory Alert. This Alert also discusses the draft policy’s potential implications on EPA and Regional enforcement activities and on AMSA’s ongoing lawsuit on the blending issue. AMSA is asking that all member input on the proposed policy be sent to AMSA’s Director of Regulatory Affairs, Chris Hornback, via e-mail at chornback@amsa-cleanwater.org or via fax at 202/833-4657 by December 15, 2003.

Quantity and Quality of POTW Comment Effort Will Be Key
It is critical that AMSA members show strong support for the proposed blending policy. AMSA’s recent conversations with EPA officials reveal that both the quantity and quality of comments submitted will play a significant role in EPA’s decision to finalize the proposed policy. Activist organizations have already started a grassroots campaign to stop a final policy, and are poised to flood the Agency with anti-blending postcards, e-mails, and letters – made even easier by EPA’s move to electronic docketing. While this Regulatory Alert seeks member input on the draft policy in order to develop AMSA comments, member agencies are strongly encouraged to submit their own comments in support of the policy or to submit an agency letter expressing support for AMSA’s comments. AMSA will distribute the Association’s comments to the membership in advance of the January 9, 2004 comment deadline to facilitate this process. Again, it cannot be emphasized enough that a significant quantity of quality POTW comments is needed to make a final blending policy a reality for POTWs. EPA’s proposed blending policy is available to members via the online version of the Federal Register at http://www.epa.gov/npdes/regulations/blending_fr_notice.pdf.

AMSA Supports the Proposed Blending Policy’s Goal
Overall, initial member agency reaction to the policy has been positive because the policy makes absolutely clear that blending, when certain steps are taken, is not a prohibited bypass under 40 CFR 122.41(m). Accordingly, the policy confirms that: 1) blending is an acceptable and environmentally beneficial practice for POTWs to use to manage and treat peak wet weather flows; 2) blending is not an illegal bypass when the six principles discussed in the policy are met; and 3) the “no feasible alternative” test in the bypass provision does not apply to blending. With a few exceptions, the principles contained in the November 7 proposed policy have not changed from those discussed in a December 21, 2001 EPA draft circulated informally entitled “NPDES Requirements for Municipal Wastewater Treatment During Wet Weather Conditions.”

AMSA would like to hear from its members regarding the workability of the six principles that EPA urges permitting authorities to consider in order to authorize blending in NPDES permits. In addition, AMSA welcomes member input on several other issues that EPA flags in its proposed policy.

AMSA Seeks Member Input on Six Key Blending “Principles”
EPA very clearly states in the proposed policy that blending will not be considered an illegal bypass if “all of the following [six] principles [which are excerpted below; set forth in full at Federal Register pages 63,049-50] were followed:”

(1) “The final discharge meets effluent limitations based on the secondary treatment regulation (40 CFR Part 133), including applicable 30-day average percent removal requirements, or any more stringent limitations necessary to attain water quality standards . . . . For treatment works served by sanitary sewers, the Director of the NPDES permit program may substitute lower 30-day average percent removal requirements or a mass loading limit for the percent removal requirements only if the permittee demonstrates the criteria in § 133.103(d) are met, including that the less concentrated influent is not the result of excessive infiltration and inflow (I/I);”

(2) “The NPDES permit application for the POTW provides notice of, and specifically recognizes, the treatment scenario that would be used for peak flow management. The treatment scenario, including designed capacity of various units, should be consistent with generally accepted practices and long-term design criteria;”

(3) “The treatment scenario that would be used for peak flow management should provide, prior to blending, at least the equivalent of primary clarification for the portion of flow routed around biological or other advanced treatment units;”

(4) “The peak flow treatment scenario chosen by the permittee for use when flows exceed the capacity of storage/equalization units, biological treatment units or advanced treatment units should be operated as it is designed to be operated and in accordance with the treatment scenario reflected in the permit record and conditions set forth in the permit. A portion of the flow should only be routed around a biological or advanced treatment unit when the capacity of the treatment unit is being fully utilized. . .such a peak flow treatment scenario should only be used when flows exceed the capacity of storage/equalization units based on generally accepted good engineering practices and long-term design criteria;”

(5) “The permit must require monitoring, including type, interval and frequency sufficient to yield data which are representative of the final blended discharge to ensure compliance with applicable water quality-based effluent limitations [and among other things] to evaluate the effectiveness of the treatment of key parameters, such as pathogens;” and

(6) “The permit must require, at minimum, that the permittee properly operate and maintain all parts of the collection system over which the permittee has operational control in a manner consistent with 40 CFR 122.41(e).”

The policy and its six principles accomplish several important goals for POTWs. First, the policy removes the specter of illegality that has surrounded blending for years due to varying EPA Regional approaches and enforcement actions. To this end, EPA states that it intends the policy to enhance nationally consistent approaches to blending. The policy discussion shows that EPA recognizes the adverse effects of plant “wash out” and that blending can avoid unnecessary damage to a plant and its efficiency. The policy recognizes that many POTWs were designed with greater primary treatment capacity than secondary treatment capacity, which AMSA has long asserted is evidence that blending would be utilized to process peak flows at a plant. In the policy, EPA supports site-specific planning to determine the best combination of wet weather management techniques – also an approach endorsed by AMSA in correspondence with the Agency. Preserving engineering flexibility for POTWs, the policy acknowledges that federal regulations do not detail the specific treatment process that a POTW must use to meet secondary treatment requirements, and recognizes the use of non-biological units to achieve this end. Principle 6 makes clear that a permittee must have operational control over the collection system for operation and maintenance requirements to be included in a permit – an important precedent for an eventual sanitary sewer overflow (SSO) rule.

Specific Issues for Comment
EPA specifically requests comment on the following issues, which AMSA will address in our comments based upon member agency responses:

(1) Do POTWs believe that any of the principles pose unduly burdensome requirements and should be removed in whole or in part? Are members generally doing the above already and, if so, do the principles appear in their respective NPDES permits?

(2) The bypass provision defines bypass as the intentional diversion of waste streams from any portion of a “treatment facility.” The term “treatment facility” is not defined. Should it be for the purposes of this policy, and if so, how might the definition function?

(3) In Principle 1, is the current interpretation of excessive I/I adequate and what challenges would POTWs face in meeting the percent removal requirements or using the excessive I/I provisions as a pre-condition for blending?

(4) In Principle 4, does EPA need to define the term “fully utilized”? Are there situations where system operators might need to keep some treatment or storage capacity in reserve to help prevent overflows or address peak wet weather concerns? AMSA understands that this is a concern for some agencies and would like to hear from members whether allowing blending only in situations where flows exceed the capacity of storage/equalization units is practicable.

(5) Are Principle 5’s monitoring provisions sufficient to protect against pathogenic organisms or should the draft policy include an explicit requirement for disinfection of blended effluent prior to discharge, where appropriate? AMSA is concerned that the current language may be interpreted to require monitoring for the actual pathogen(s) and not the bacterial indicator(s).

(6) In developing Principle 6, what factors should be considered when evaluating if a permittee is properly operating and maintaining their collection system in a manner consistent with 40 CFR 122.41(e)?

(7) Should permits that authorize blending contain a reopener clause to address situations where additional controls are necessary to assure attainment of water quality standards or where new monitoring information justifies the application of different permit conditions?

(8) Should EPA conduct a rulemaking to formally codify the proposed policy to make it legally binding on states and regions? The proposed policy currently states that “EPA and State decisionmakers [under the policy] would retain the discretion to adopt approaches on a case by case basis that differ from this proposed policy where appropriate.”

In addition, AMSA suggests that member agencies also consider the following additional issues:

(1) The impact of Principle 2’s discussion of a cost-effectiveness evaluation of alternatives on permit renewal;

(2) How Principle 4’s phrase “generally accepted good engineering practices and long-term design criteria” would be implemented in practice;

(3) The impacts of Principle 5’s monitoring requirement to ensure compliance with applicable “water quality-based effluent limitations” on current bacterial indicator monitoring or on the presumptive approach under the combined sewer overflow policy;

(4) The effect of EPA’s Principle 6 interpretation that “proper operation and maintenance” includes “appropriate removal of infiltration and inflow” from the collection system; and

(5) The effect of EPA’s statement that discharges of blended effluent to sensitive receiving waters should not be authorized “[w]herever physically possible and economically achievable.”

AMSA also encourages member agencies to bring additional issues to our attention regarding the real world application and impacts of EPA’s proposed policy.

The Proposed Policy’s Effect on Ongoing Litigation and Enforcement
EPA argued in a November 10 supplemental brief that its release of the proposed policy supports its position in the ongoing blending and SSO case that past anti-blending actions by the regions are not "final agency actions" subject to legal review, and thus, the case should be dismissed. Pennsylvania Municipal Authorities Ass’n v. Horinko, No. 1:02CV01361 (D.D.C. July 8, 2002). The plaintiffs may respond, on the other hand, that the proposed policy’s release merely underscores the illegality of the defendant Regions’ past anti-blending actions. Several different developments could occur in the litigation. For example, the court, sua sponte, could grant EPA’s October 2002 request that the case be dismissed for lack of final agency action. In addition, either EPA or the plaintiffs could file a motion to dismiss the blending aspects of the suit, while allowing the SSO issues to remain active. Another approach could be for either EPA or the plaintiffs to seek a stay of activity in the case on the blending issues. Further, the court still has not ruled on the plaintiffs’ August 14 motion for a preliminary injunction to prohibit Regions 3, 4, and 6 from taking any further anti-blending actions until EPA issues a final blending policy. EPA’s release of the proposed policy could trigger court action on this outstanding request. AMSA will keep the membership informed as we evaluate these, or any other, developments in the case.

The policy’s release, and EPA’s many statements therein highlighting the need for national consistency on this issue, should be helpful to any POTW facing anti-blending enforcement or permitting at the state or EPA Regional level. POTWs can use EPA’s formal announcement that the blending rules are unclear to delay or even resolve any adverse pending actions. Similarly, new anti-blending actions by state or Regional authorities may be less frequent while the policy is in the notice and comment phase. Citizen suits alleging that blending at a POTW is an illegal bypass are still possible, but again, a POTW could use EPA’s release of the proposed policy to support a request to delay or defer substantial legal activity over blending until the policy is finalized.

Submit Comments to AMSA by December 15, 2003
Again, the deadline to submit comments to EPA is January 9, 2004 and AMSA is asking that all member input on the proposed policy be sent to AMSA’s Director of Regulatory Affairs, Chris Hornback, via e-mail at chornback@amsa-cleanwater.org or via fax at 202/833-4657 by December 15, 2003. This will give AMSA the needed time to incorporate member input into the Association’s comment effort. AMSA will then provide the membership with copies of its comments via a future Regulatory Alert, which can, in turn, be used by AMSA member agencies in their own comment efforts.