AMSA Regulatory Update April 2005

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The Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the April 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to April 27, 2005. Unless another contact person is specifically listed, call Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or e-mail him at chornback@amsa-cleanwater.org with any questions or input you have concerning the Update topics.

Top Stories

AMSA Sends Sewer Overflow Action Plan to All Members of Congress
In early April, AMSA sent a letter along with its CSO/SSO Action Plan (http://www.amsa-cleanwater.org/advocacy/co/2005-04-07hilltr.pdf) to every member of Congress containing recommended federal ‘next steps’ toward sound wet weather policies. The Action Plan was created in response to the U.S. Environmental Protection Agency’s (EPA or Agency’s) August 2004 Report to Congress on the Impacts and Controls of CSOs and SSOs. The Plan highlights key facts from the Report while urging EPA and Congress to develop a flexible sanitary sewer overflow (SSO) policy modeled after EPA’s current Combined Sewer Overflow (CSO) Control Policy. The Report details the significant investments and progress municipalities have made in controlling sewer overflows. For example, the Report states that the number of CSO events has decreased by 28% since the 1994 CSO Control Policy was enacted and EPA has lowered its original estimates of SSO volume by two orders of magnitude to 3-10 billion gallons per year (from 311 billion gallons per year).

The Action Plan urges EPA to develop a national SSO policy that employs a watershed-based approach to maximize both the effectiveness of limited municipal resources and environmental and public health benefits. The Plan also encourages the development of a national permitting program for municipal collection systems and additional scientific studies on the potential public health impacts of CSOs and SSOs to ensure sound regulatory and enforcement policy. The Association will continue to work with Congress and EPA to develop policies and enforcement strategies that will help municipalities continue to make further progress on sewer overflow control.

AMSA Ensures Strong Testimony on Need for Blending Policy in House Hearing
AMSA’s strong advocacy on behalf of EPA’s November 2003 blending guidance in Congress has helped ensure that Capitol Hill and key federal policy-makers are hearing the voice of the Nation’s publicly owned treatment works (POTWs). Since the guidance’s proposal, AMSA has sent a constant stream of advocacy materials, including its Fact-Fiction piece and various coalition letters in support of blending, to all Members of Congress and key EPA officials. These efforts resulted in an April 13 hearing in the House Subcommittee on Water Resources and Environment. AMSA provided significant input and organizational assistance to Subcommittee staff for the hearing that ensured strong, pro-blending testimony from the municipal, state and public health viewpoints.

Alan Vicory, Jr., Executive Director & Chief Engineer of the Ohio River Valley Water Sanitation Commission (ORSANCO), Cincinnati, Ohio, testified that blending is a state-sanctioned practice that is in full compliance with Clean Water Act permits. Vicory said, “It would be extremely difficult – if not impossible – to effectively manage the wide variety of peak wet weather events in communities along the Ohio River if blending were not an available option.” John Graham, Jr., Assistant Director, Water Quality Control Department, City of Maryville, Tenn., provided the perspective of a small, expanding town that needs to be allowed to continue blending in order to deal with peak wet weather flows. Adam Olivieri, Principal Engineer, Vice President of EOA, Inc., pointed out some of the flaws in the Rose-Katonak report, which has been relied on by activist groups in criticizing blending, by providing statistics that indicate exposure to blended effluent does not pose a significant environmental or human health risk [see related story on blending briefing below]. John Hall, President, Hall & Associates, offered the municipal and legal viewpoints in support of the practice, citing the critical importance of the ongoing blending case of Pennsylvania Municipal Authorities Association v. EPA, in which AMSA filed a brief on March 16 in support of the need for a final blending policy.

Joan Rose, the Homer Nowlin Chair in Water Research, Department of Fisheries and Wildlife, Michigan State University, defended the findings of her November 2003 Report on the human health risks associated with blending. Nancy Stoner, Director, Clean Water Project, Natural Resources Defense Council, provided the activists’ anti-blending perspective. Rep. Bart Stupak (D-MI), primary sponsor of the Save Our Waters From Sewage Act (H.R. 1126), testified in support of his bill (H.R. 1126), which would prohibit blending.

AMSA on its own and through the broad municipal coalition the Association has helped organize will continue to meet with key Members of Congress and their staff to advocate against H.R. 1126. Significantly, the municipal coalition effort on behalf of blending received honorable mention at the hearing when Subcommittee Chairman, John J. Duncan, Jr. (R-TN), stated in his introductory remarks that he had received letters supporting the practice of blending from municipal agencies or associations in 37 states. These letters will be part of the official hearing record. AMSA will continue to build on this support to ensure progress toward a final blending policy.

Biosolids

EPA Releases Final Recommendations on Management of Radioactive Materials in Biosolids
EPA and the Nuclear Regulatory Commission (NRC), through the Interagency Steering Committee on Radiation Standards (ISCORS), have released a final version of the report entitled, ISCORS Assessment of Radioactivity in Sewage Sludge: Recommendations on Management of Radioactive Materials in Sewage Sludge and Ash at Publicly Owned Treatment Works (Recommendations), the third and final document stemming from an interagency effort that began in 1994. With the release of this report, the ISCORS effort to assess radioactive materials in sewage sludge (biosolids), which began in 1995, is essentially complete. AMSA played a critical role in the decade long ISCORS effort and in the development of three documents. AMSA member representatives Tom Lenhart, Director of Employee Resources at the Northeast Ohio Regional Sewer District, Cleveland, Ohio, and Kevin Aiello, Administrator, Environmental Quality, Middlesex County Utilities Authority, Sayreville, New Jersey, were members of the ISCORS subcommittee tasked with conducting the assessment. AMSA also provided detailed comments on the documents throughout the development process. With a combined total of over 600 pages, these three documents may present a challenge to many POTWs interested in understanding what this means for them. AMSA is preparing a Regulatory Alert to highlight the elements of these three documents that are most relevant for POTWs and provide a quick overview of the critical recommendations that ISCORS is making.

At the heart of the ISCORS mission was the evaluation of the need for limits on radioactivity in sludge and ash. In line with AMSA input, ISCORS is not recommending the establishment of regulatory limits on radioactivity in sludge. Instead, similar to the draft Recommendations document released in November of 2003, the final document provides some recommended actions for POTWs that have concerns about radioactivity in their sludge or ash, and a guideline level of exposure above which POTWs should conduct more extensive investigations. The document makes it clear that this guideline level is not a regulatory limit.

ISCORS notes in the Recommendations document that three overall conclusions can be drawn from the decade-long effort: 1) Elevated levels of radioactive materials were found in some sewage sludge and ash samples, but did not indicate a wide-spread problem; 2) The estimated dose to potentially exposed individuals are generally well below levels requiring radiation protection actions; and 3) For a limited number of POTW workers and certain residential scenarios, doses above protective standards could occur (primarily due to indoor radon generated as a decay product of naturally occurring radionuclides). The final Recommendations document is designed to alert POTWs to the possibility that radioactive materials may be present in their sewage sludge, assist POTWs in assessing the levels of radioactive materials present, and provide guidance on reducing the potential for exposure should elevated levels be present.

All three documents, the ISCORS Assessment of Radioactivity in Sewage Sludge: Radiological Survey Results and Analysis, the ISCORS Assessment of Radioactivity in Sewage Sludge: Modeling to Assess Radiation Doses (released with the Recommendations document), and the Recommendations are available on the ISCORS website library (http://www.iscors.org/library.html). The Recommendations document can be found on the ISCORS website (http://www.iscors.org/pdf/FinalRecommendations.pdf).

Conferences and Meetings

Mark Your Calendars for AMSA’s Summer Conference, July 19 – 22, in Hilton Head, S.C.
Join your clean water colleagues at the Westin Hilton Head in Hilton Head, S.C., July 19 – 22, for AMSA’s annual Summer Conference. This year’s conference is titled Wastewater Conveyance and Treatment…Navigating an Uncertain Regulatory Environment, and will examine how the nation’s municipalities continue to make steady progress towards 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 AMSA’s website (http://www.amsa-cleanwater.org/meetings/#05summer) soon for more information on registration and a conference agenda.

AMSA/ CSO Partnership Workshop Shows Need for Increased EPA Focus on CSO, UAA Issues
On April 11 - 12, in Chicago, AMSA and the CSO Partnership brought together experts representing all perspectives on the most complex combined sewer overflow (CSO) implementation issues facing municipalities today. The Workshop also made it clear that EPA needs to improve inter-departmental consistency on CSO issues and to consider updating its approach on UAAs and long-term control plans (LTCPs) for CSOs. For example, EPA’s Director of the Office of Wastewater Management, Jim Hanlon, was on hand to hear directly from clean water agency representatives on issues such as defining existing uses, the implications of the Clean Water Act’s reference to the CSO policy and subcategorizing designated uses. Hanlon indicated that it would be critical to involve EPA’s Office of General Counsel going forward to provide direction to communities on key unanswered long-term control plan (LTCP) questions. Director of the Water Permits Division, Linda Boornazian, and Director of the Water Quality Standards and Health Protection Division, Denise Keehner, commended attendees on the progress they have made and reported that EPA will soon release a compendium of Use Attainability Analysis (UAA) case studies to provide some interim help and guidance on UAAs as the Agency considers to consider whether and how to move forward on UAAs. Workshop presentations will be available on AMSA’s Conferences & Meetings webpage (http://www.amsa-cleanwater.org/meetings/) soon. For more information on the meeting, contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.

International Organization of Standardization (ISO) Issues

AMSA Voices POTW Perspective on ISO Standards
Since the last ISO meeting on January 24 – 27 in Valencia, Spain at which AMSA voiced the U.S. POTW perspective during in-depth editorial meetings, ISO has developed revised draft drinking water and wastewater standard documents. AMSA is currently in the process of reviewing these documents via its ISO representatives and the Utility Management Committee. AMSA’s ISO representatives will also be meeting on May 1, 2005 at the 35th Anniversary Annual Meeting to review and compile comments. These comments will focus on several key issues, including whether and how stormwater concerns should be treated under the standards and to ensure harmonization of the drinking water and wastewater documents — an effort on which AMSA is also working closely with the American Water Works Association (AWWA). The Association held a March 29 conference call with AWWA to discuss the comment effort and to ensure consistency in the U.S. message. The Association will also comment on the need to guarantee that the selection of particular performance indicators in the wastewater services standard document remains a local, voluntary decision. The next ISO meeting is scheduled for October 2005 in Berlin, Germany and the Association will be sending two representatives to that meeting.

Pretreatment

AMSA Files Two Briefs in Effluent Limitations Guidelines Litigation
In early April, AMSA filed two briefs in Our Children’s Earth Foundation (OCE) v. EPA to support the Agency’s approach to the effluent limitation guidelines (ELG) program both for direct dischargers and the pretreatment program for indirect dischargers. AMSA is an intervenor in this case in order to protect the interests of POTWs nationwide with pretreatment programs. Simply stated, if OCE is successful in its challenge to EPA that the Agency must review effluent limitation guidelines (ELGs) more often than is authorized or permitted by law, this will have significant resource and budget implications on many Association members. Specifically, OCE has alleged that EPA has not: reviewed all ELGs annually; reviewed effluent limitations based on best available technology (BAT) economically achievable and best conventional pollutant control technology (BCT) every five years; issued timely biennial effluent guidelines plans under § 304(m); and adopted a proper 2004/2005 effluent guidelines plan. AMSA’s briefs in the case provide legislative history on Congress’ intent regarding the ELG program and emphasize the appropriateness of EPA’s approaches in this arena in past years. A hearing is scheduled before the U.S. District Court for the Northern District of California on May 11. AMSA’s briefs in the OCE case are posted to the Association’s Litigation Tracker (http://www.amsa-cleanwater.org/private/littrack/). For more information on the litigation, contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.

Utility Management

AMSA Sends 2005 Financial Survey to All Association Members
AMSA mailed its 2005 Financial Survey to all public agency members in April. The Association urges all members to complete the survey by the June 15 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.amsa-cleanwater.org/private/membcomm/memupdate/mu05-06.cfm) or contact AMSA’s Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or wpettit@amsa-cleanwater.org for more information.

Water Quality

AMSA Files Brief in NPDES Case, Addresses Water Quality and TMDL Issues
AMSA and the Virginia Association of Municipal Wastewater Agencies (VAMWA) filed an amicus curiae brief in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock) on April 19. 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. AMSA’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, AMSA’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. A hearing before the state court is scheduled for April 27. Visit AMSA’s Litigation Tracker (http://www.amsa-cleanwater.org/private/littrack/#cbf) or contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org for more information.

Wet Weather

AMSA Reviews New EPA Guidelines for Federal Enforcement in CSO/SSO Cases
On April 10, Thomas V. Skinner, Acting Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance, and Robert W. King, Jr., Secretary Treasurer, Environmental Council of the States (ECOS), in their roles as Co-Chairs of the EPA-State CSO/SSO Workgroup, sent all 10 EPA Regions and the ECOS Compliance Committee a memo (http://www.amsa-cleanwater.org/advocacy/co/2005-04csosso-guidelines-enf.pdf) that included new guidelines for federal enforcement in CSO/SSO cases. The memo acknowledged that enforcement actions involving CSO and SSO violations are often highly complex and resource-intensive for EPA and authorized states. Stressing the need for EPA and the states to work together, the guidelines reflected the findings of a workgroup of EPA and state stakeholders that met to address these issues and provide greater clarity on when the federal government would pursue enforcement actions in CSO/SSO cases. The memo indicates that EPA is not introducing any new standards for federal CSO/SSO enforcement, but instead is reinforcing EPA’s existing policies. AMSA’s Wet Weather Issues and Legal Affairs Committees will be discussing the memo during AMSA’s upcoming 35th Anniversary Annual Meeting next week.