NACWA April 2006 Regulatory Update

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to April 7, 2006. Please contact Chris Hornback, NACWA Director of Regulatory Affairs, at 202/833-9106 or chornback@nacwa.org or Susie Bruninga, NACWA Manager of Regulatory Affairs, at 202/833-3280 or sbruninga@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA Discusses Issues of Concern to Municipalities at Meeting with EPA
NACWA staff and representatives from other municipal organizations met with U.S. Environmental Protection Agency (EPA) officials March 23 to discuss a range of topics from peak wet weather flows to infrastructure funding. While the Agency remains optimistic about the prospects of issuing a final policy on peak wet weather flows, staff are working to address the 76 comments received on the draft, which was published in the December 22, 2005, Federal Register (70 Fed. Reg. 76,013), and said it may not be promulgated until the end of the year. However, NACWA subsequently learned from Benjamin Grumbles, EPA Assistant Administrator for Water, that he intends to issue the policy sooner, possibly by the end of August.

The draft policy is modeled on a document forged by NACWA and the Natural Resources Defense Council (NRDC). NACWA pointed out at the March 24 meeting that the two groups had also drafted a “response to comments” to assist the Agency in issuing the policy in final form.

EPA expects to issue the report on its 2004 Clean Water Needs Survey (CWNS) soon and is in the planning stages for its 2008 survey. The 2004 report does not include needs related to the damage caused by Hurricanes Katrina, Rita, and Wilma. EPA has invited interested parties, including NACWA, to help with the design of the 2008 CWNS. The Agency intends for the next survey to be more user friendly with improved data entry through a new online system and the ability to integrate information from the National Pollutant Discharge Elimination System (NPDES) program and other sources. In addition, it will be designed to look beyond the three-to-five year timeframe of the current survey to perhaps a 10- or 20-year outlook.

Also during the meeting, EPA also discussed its work with NACWA, the Water Environment Federation, and others on sustainable utility management, noting that EPA Administrator Stephen Johnson has called sustainable infrastructure a top priority.

Conferences

Plan Now to Attend NACWA/WEF National Clean Water Policy Forum
The 2006 NACWA/Water Environment Federation (WEF) National Clean Water Policy Forum is scheduled for May 2-3 in Washington, D.C. Plan now to attend and register for the Forum, which is designed to keep clean water professionals up to date on current federal legislative, legal, and regulatory developments. Preceding the Forum on April 30 - May 1 will be the Association’s committee meetings and presentation of NACWA’s National Environmental Achievement and Peak Performance Awards. Program information and online registration is available on NACWA’s Conferences and Meetings webpage (www.nacwa.org/meetings).

Pretreatment and Pollution Prevention

EPA Issues Guidance on Implementing 1998 Pharmaceutical ELG
Guidance on implementing the effluent limitation guideline (ELG) for the pharmaceutical point source category was released recently by EPA and applies to companies in the four industrial subcategories involved in fermentation; extraction; chemical synthesis; and mixing, compounding and formulating. The most recent ELG for this point source category was promulgated in 1998, and the guidance is intended to assist in establishing pretreatment permit limits for indirect dischargers and NPDES limits for direct dischargers. The guidance and additional information on the pharmaceutical manufacturing point source category is available on EPA’s website (http://www.epa.gov/waterscience/guide/pharm/guidance/).

Security and Emergency Preparedness

NACWA Completes Chlorine Gas Decision Tool
NACWA has completed its Chlorine Gas Decision Tool, a CD-based application developed for the Department of Homeland Security’s (DHS) Advanced Research Projects Agency. While it is understood that the use of chlorine gas in the water and wastewater industry cannot be eliminated completely, DHS wants to encourage utilities currently using gaseous chlorine for disinfection to consider alternatives. The Chlorine Gas Decision Tool is designed to provide water and wastewater utilities with a quick, but thorough means of evaluating alternative disinfection options.

The tool contains a series of Excel spreadsheets and formulas that allows users to identify the characteristics of a disinfection option that are most important to their agency (e.g., process reliability, safety to the public) and then rate the different disinfection alternatives for each of these characteristics. With some basic chemical use information and cost figures, the tool provides a cost-benefit analysis for the alternatives based on the agency-specific information, allowing the user to see what alternative(s) may be feasible. DHS wants utilities that use the tool to submit reports detailing the evaluation to help the Department get a better understanding of the security needs in the sector. All submissions will be controlled using appropriate handling protocols to ensure they remain secure. An order form for the CD will be posted soon on NACWA’s publications page (http://www.nacwa.org/pubs/).

Water Quality

Appeals Court Ruling Challenges Use of Data Quality Act
While NACWA has not used the provisions of the Data Quality Act to question the underlying science and data associated with an EPA rulemaking, several industry groups have. A recent court decision will likely affect future challenges of EPA decisions using the Act’s provisions. The U.S. Chamber of Commerce and the Salt Institute questioned information disseminated by the Department of Health and Human Services (HHS) about the effect of salt on blood pressure. The U.S. Court of Appeals for the Fourth Circuit held that the Information Quality Act, also known as the Data Quality Act, “does not create a legal right to access to information or to the correctness” and, therefore, “appellants have not alleged an invasion of a legal right and these have failed to establish an injury” (Salt Institute v. Leavitt, 4th Cir., No. 05-1097, 3/6/06). The court said that the Chamber and Salt Institute lacked “standing” to sue since the statute gives private parties no legal right either to information or to correct information.

The White House Office of Management and Budget (OMB) was required to put together a set of guidelines to implement the Data Quality Act. The guidelines lay out what federal agencies must to do ensure that data used in a rulemaking is of sufficient quality. Environmental activists have criticized the Act as an industry-slanted program designed to stymie EPA efforts to develop regulations. Some industry groups are debating whether to ask the full Fourth Circuit to consider the case, pursue similar cases in other courts, or ask Congress to clarify the statute.

EPA Advisory Committee Meeting on Endocrine Disruptors Scheduled
EPA has scheduled a meeting April 18-20 of the Endocrine Disruptor Methods Validation Advisory Committee (EDMVAC) under the Federal Advisory Committee Act (FACA). The committee was chartered in 2004 to advise the Agency on scientific and technical issues relating to the validation of the Endocrine Disruptor Screening Program (EDSP) developed under the 1996 Food Quality Protection Act (FQPA). That law directed EPA to develop a screening program, using appropriate validated test systems and other scientifically relevant information, to determine whether certain substances may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect as the Administrator may designate. This is one of the many efforts NACWA’s newly formed Emerging Contaminants Workgroup will be tracking. Meeting information is available from EPA (http://www.epa.gov/scipoly/oscpendo/meetings/edmvacmeetings.htm).

EPA Seeks Nominations to Science Advisory Board Panel
The EPA Science Advisory Board (SAB) is forming a new Panel on the Distribution of Persistent Chemicals in Wastewater Treatment, and is soliciting nominations for members. NACWA has nominated Norm LeBlanc, Water Quality Committee Chair, to represent the Association. The new panel will review a study on the distribution of polychlorinated biphenyls (PCBs), persistent toxic substances (PTS), and other chemicals in one Chicago area treatment plant’s wastewater influent, effluent, and sludge. Recent studies indicate the presence of elevated concentrations of mercury, polybrominated diethyl ethers, alkylphenol ethoxylates, pharmaceutical compounds, and personal care products in the wastewater treatment plant effluent and receiving waters, the result of high usage or resistance to degradation and removal during treatment.

EPA’s Region V office in Chicago requested that the SAB review its study of the distribution of PTSs within the wastewater treatment plant. The panel will consider the study and provide advice and recommendations on sampling design, uncertainties inherent in the investigation, and interpretations of the results. Future studies of fate, emissions, and transport of PTSs will be undertaken, and the panel will provide advice and recommendations on the future design and direction of such studies.

EPA Issues Guidance Memo on Use Attainability Analyses
NACWA believes a new use attainability analysis (UAA) memo from EPA will help its members who are considering a UAA in their community. EPA Headquarters sent a memo to its regional offices, “Improving the Effectiveness of the Use Attainability Analysis (UAA) Process,” which lays out five basic principles, and asks that the Regions share and reinforce these principles with the States and stakeholders. Those principles are:

1. Getting the uses right requires both a useful set of designated uses and an effective process for conducting credible and defensible UAAs;

2. A credible UAA can result in a change in designated use in either direction;

3. There is nothing wrong with changing designated uses after completion of a credible UAA;

4. The UAA process should be better integrated with TMDL development; and

5. Improved public communication leads to improved public acceptance

In addition, EPA Headquarters provided the Regions with nine UAA case studies. EPA said it will issue more guidance this year including a set of questions and answers on UAA issues.

EPA Seeks Comment on Cumulative Risk Assessment Report
EPA seeks comment on its draft Considerations for Developing Alternative Health Risk Assessment Approaches for Addressing Multiple Chemicals, Exposures, and Effects. Comments on the report are due May 15 (http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=149983). The report follows up on the Agency’s 2003 Framework for Cumulative Risk Assessment, which defines cumulative risk assessment as the evaluation of risks from exposures to multiple chemicals and other stressors, and having a population focus rather than a source-to-receptor focus. NACWA commented on a related staff paper regarding EPA’s risk assessment practices in November 2004 (http://www.nacwa.org/getfile.cfm?fn=2004-11-05RiskCmts.pdf). In the draft report on which comment is being sought, EPA presents concepts that could be used in the development of guidance regarding risk assessment approaches and information on a subset of issues from the 2003 report.

The report discusses ways a population could be defined for the purposes of an assessment and ways chemicals of concern could be identified. Methods to assess the cumulative risk of multiple chemicals also are discussed in the report, which states that existing data can often be used. EPA said it would hold a peer review of the document later this year. The Agency intends to publish a final document by September.

NACWA Responds to Activists’ Report on Water Act Violations
In response to a report by the U.S. Public Interest Research Group that 62 percent of major industrial facilities and municipal wastewater treatment plants have violated the Clean Water Act (CWA) in the past 18 months, NACWA said the activist community would be better served by working with clean water agencies to develop solutions for cleaning up the nation’s waters instead of re-packaging the same report year after year. PIRG’s report, Troubled Waters, looked at alleged permit violations between July 2003 and December 2004 and identified the type of pollutants being discharged. NACWA responded in several news stories that publicly owned treatment works (POTWs) spend billions annually to do the actual work of cleaning up the nation’s waters and, because of this investment, have made great progress in improving water quality under the CWA. While more work is needed, NACWA has shown that it can work with members of the activist community to develop solutions, as was demonstrated by the agreement with the Natural Resources Defense Council on peak wet weather flows.