AMSA August 2004 Regulatory Update

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The Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the August 2004 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to September 3, 2004. 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

EPA Releases Report to Congress on Sewer Overflows, AMSA to Review and Respond
On August 26, the U.S. Environmental Protection Agency (EPA or Agency) released its long-awaited Report to Congress on the Impacts and Control of Combined and Sanitary Sewer Overflows. In the coming days and weeks, AMSA will review the entire report and determine what, if any, response is necessary. More in-depth information can be found in AMSA’s Regulatory Alert 04-16 (www.amsa-cleanwater.org/private/regalerts/ra04-16.cfm). The report acknowledges the progress municipal utilities have made in reducing sewer overflows and protecting human health and the environment, but notes that work remains to meet the objectives of the Clean Water Act and the Combined Sewer Overflow (CSO) Control Policy. The report also contains important facts on CSOs and sanitary sewer overflows (SSOs) including: 1) the percentage of CSO long-term control plans that have been submitted has increased from 34 to 59 percent since EPA’s last Report to Congress in 2001 and $6 billion has been spent by municipalities as of 2002 to control CSOs; 2) SSOs comprise a much smaller percentage of total overflow volume than EPA previously estimated – down two orders of magnitude from 311 billion gallons per year to 3-10 billion per year – which could have significant impact on the future of an SSO rule; and 3) an estimated $88 billion and $50.6 billion is needed over the next 20 years to control SSOs and CSOs respectively, showing a need for increased funding via a meaningful federal-state-local partnership.

While downplaying national impacts, the report states that “CSOs and SSOs can have impacts on human health and the environment at the local watershed level” and lays out four broad strategies that should be taken to reduce the impacts of sewer overflows, which are: 1) providing adequate funding for maintenance and improvement of the nation’s wastewater infrastructure; 2) integrating wastewater
programs and activities at the watershed level; 3) improving monitoring and reporting programs to provide better data for decision-makers; and 4) supporting stronger partnerships among federal and state agencies, municipalities, industry, non-governmental organizations, and citizens. Despite the fact that the report downplays the significance of SSOs nationwide, AMSA will continue to urge the Agency to promulgate an SSO regulation. To help this cause, AMSA is working toward drafting a model regulation dealing with SSO permitting issues to EPA as they consider their next steps on SSO issues. The report is available on EPA’s website (http://cfpub.epa.gov/npdes/cso/cpolicy_report2004.cfm).

AMSA Seeks to Enter Key Effluent Guidelines Case
On August 19, AMSA filed papers with the U.S. District Court for the Northern District of California to participate in Our Children’s Earth Foundation v. EPA. In this case, the plaintiffs allege that EPA has failed to review its Clean Water Act (CWA) effluent limitations every five years and to evaluate whether technological advances or changed economic circumstances have made it feasible to make existing guidelines more stringent. AMSA has a long history of impacting policy development in the effluent guidelines program, and the Association’s participation in the case is vital.

The plaintiffs also challenged EPA's failure to publish a mandatory biennial effluent guidelines plan as required by CWA § 304(m)(1). However, on August 11, the court dismissed that portion of the suit, finding that “Congress intended for the EPA to conduct regular reviews of its effluent guidelines, and the EPA is doing so.” The court also noted that the CWA requires that EPA complete the effluent guidelines plans every two years, and “[p]laintiffs thus cannot compel the EPA to produce a report before two full years have elapsed.”

The additional claims against EPA raised in the case will proceed before the court this fall.
A case management conference has been scheduled by the court for September 9. For more information on this case, please contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org. [Please see related story in the Pretreatment section].

AMSA Comments on EPA Bacteria Criteria for Coastal States, Urges Further Research
AMSA submitted comments (http://www.amsa-cleanwater.org/advocacy/comments/2004-08-09OW_2004_0010.pdf) August 9 on the Agency’s July 9 proposed rule (http://www.epa.gov/fedrgstr/EPA-WATER/2004/July/Day-09/w15614.pdf) to federally promulgate bacteria standards for 25 coastal states and territories that have yet to update their existing water quality criteria, as required by the Beaches, Environmental Assessment and Coastal Health (BEACH) Act of 2000.

In its comments, the Association noted the need for additional research to validate EPA’s 1986 criteria because the data underlying the proposed rule were collected in the 1970s, and because of a lack of EPA-approved test methods for E. coli and enterococci (the indicator organisms that comprise the Agency’s criteria). AMSA also voiced its concern over how the Agency will interpret “single sample maximum” (SSM). EPA noted that one interpretation could be that the SSM is a “never to exceed” value that if exceeded would signal noncompliance with a water quality standard. AMSA’s comments noted that such an interpretation would be inconsistent with other EPA guidance and could result in excessively high long-term control plan costs for combined sewer overflow communities. AMSA recommended that the SSM be used only as an implementation tool for making beach closure decisions and that compliance with the water quality standard be determined using a geometric mean measurement of bacterial levels. AMSA appreciates the efforts of those members who submitted comments on this important issue and will continue to track it and alert the membership of any developments.

Biosolids

King County Department of Natural Resources Recognized for Completing Biosolids Certification
AMSA is pleased to recognize King County’s Wastewater Treatment Division in the Department of Natural Resources and Parks, Seattle, Washington, on its third-party audit certification for its biosolids Environmental Management System (EMS). King County Executive Ron Sims accepted the Certificate of Achievement on August 26 in Seattle, Washington, from EPA and National Biosolids Partnership (NBP) officials for completing the EMS program. The EMS is a key part of the NBP, which was founded by AMSA, the Water Environment Federation (WEF) and the U.S. Environmental Protection Agency (EPA) to promote the safe and effective reuse of biosolids. By implementing this set of national management protocols, King County has demonstrated its dedication to its community and advancing environmentally sound and accepted biosolids management practices.

The EMS program allows wastewater treatment utilities to achieve higher standards that go beyond the already stringent federal criteria for biosolids; improve communications with the general public; ensure protection of public health; tailor biosolids management practices to community needs and environmental performance concerns; and gain public acceptance. Again, AMSA congratulates King County on the certification of its biosolids EMS and for completing the rigorous third-party audit process. King County joins the Orange County Sanitation Districts and the City of Los Angeles in California as having the only third-party certified biosolids EMSs in the country. Currently, there are over 60 agencies enrolled in the NBP EMS program and AMSA believes King County’s success will encourage more communities to enroll in the program and develop an EMS. For more information on the NBP EMS program, contact AMSA’s Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org.

Conferences

Join EPA Officials and Fellow AMSA Members to Discuss Key Clean Water Topics at WEFTEC
The National Office is pleased to invite you to attend AMSA's Hot Topics Breakfast during WEFTEC 2004 in New Orleans, La., on October 5 from 8:00-10:00 a.m., in Grand Salon A of the Hilton New Orleans Riverside.

We will focus our discussions on legal and regulatory topics currently in the national spotlight, including wet weather, water quality standards, pretreatment, infrastructure funding, and water and wastewater security issues. Jim Hanlon, Director of EPA’s Office of Wastewater Management, and Geoff Grubbs, Director of the Office of Science and Technology, will speak at the Breakfast, along with several other EPA policy-makers to provide updates on key Agency initiatives. Also stop by AMSA’s booth (number 5744) for information about AMSA’s recent clean water initiatives and a free gift!

Register Today for the National Pretreatment Coordinators Workshop in Norfolk, Virginia
Registration information and a preliminary agenda for the 2004 National Pretreatment Coordinators Workshop, to be held in Norfolk, Va., October 27-29, are available on AMSA’s website (http://www.amsa-cleanwater.org/meetings/04pret/). AMSA has worked with key federal and state stakeholders to develop the agenda. The 2004 Workshop will build on past successes and allow clean water agency, EPA, and state representatives the opportunity to share knowledge on numerous technical challenges facing today’s pretreatment professionals, discuss current Agency pretreatment program initiatives, and learn valuable skills to improve pretreatment programs around the nation. Some of the topics to receive attention in Norfolk are the Pretreatment Streamlining Rule, EPA’s Local Limits Guidance and its alternatives, emerging pollutants, pretreatment security challenges, pollution prevention, airport waste issues, and the effluent guidelines program. If you would like more information on the Workshop, please contact AMSA’s Will Pettit at 202/833-3280 or wpettit@amsa-cleanwater.org. AMSA looks forward to seeing you in October!

Pretreatment

Grumbles Signs Final 2004 Effluent Guidelines Plan, EPA to Develop Two New Industry Guidelines
EPA published its Effluent Guidelines Program Plan for 2004/2005 in the Federal Register on September 2. The final plan describes the results of EPA's 2004 annual review of the effluent guidelines program under section 304(m) of the Clean Water Act. Specifically, the Plan identifies two industries which will be reviewed for potential revisions — Vinyl Chloride Manufacturing, which is part of the Organic Chemicals, Plastics, and Synthetic Fibers point source category, and Chlor-Alkali Manufacturing, which is part of the Inorganic Chemicals point source category. The plan also identifies two new industries for effluent guidelines rulemaking, Airport Deicing Operations and Drinking Water Supply and Treatment.

AMSA is currently reviewing the final plan and will send a more detailed summary of it to the membership via a Regulatory Alert. The Federal Register notice and major supporting documents are available on EPA's website (http://www.epa.gov/guide/plan.html). If you have any questions, please contact AMSA’s Will Pettit at 202/833-3280 or wpettit@amsa-cleanwater.org.

IG Report Finds Effluent Guidelines Program is Reducing Pollutant Discharges
In an August 24, 2004 report, entitled Effectiveness of Effluent Guidelines Program for Reducing Pollutant Discharges Uncertain, EPA’s Office of Inspector General (IG) concludes that the program is having “some impact” but, because of inadequate monitoring data, cannot verify the Agency’s claim that the program has been successful in keeping more than 700 billion pounds of pollutants out of the nation’s waters. Of 109 facilities evaluated in the report, only seven had sufficient data (prior to the imposition of discharge limits), to show a significant pollutant reduction after the limit was put in place. The report also sites a lag time in updating National Pollutant Discharge Elimination System (NPDES) permits after an effluent guideline has been revised, further skewing the effectiveness of the effluent guidelines program. Members of AMSA’s Pretreatment & Hazardous Waste Committee were interviewed by the IG’s office to provide a municipal perspective on the effectiveness of the effluent guidelines program. At this point it is unclear what, if any, impact the report may have on the effluent guidelines program. The IG’s review examined the operation of EPA’s effluent guidelines program at a time when the Agency’s actions were driven by legal deadlines. With EPA now operating the program outside the confines of a consent decree, EPA may now have the additional resources and flexibility to address some of the report’s criticisms. The report is available on EPA’s website (http://www.epa.gov/oigearth/reports/2004/20040824-2004-P-00025.pdf).

Utility Management

AMSA Weighs in on Development of International Wastewater Standard
The International Organization for Standardization (ISO) is in a critical stage of developing its standards for service activities relating to drinking water supply systems and wastewater supply systems (ISO TC/224). These standards may have broad domestic ramifications given the growing interest of the U.S. Congress and the EPA in asset management systems. The American Water Works Association (AWWA) is the leading U.S. representative to ISO, with AMSA playing the primary role on behalf of the U.S. in preparing comments specific to the standards for wastewater utilities.

Members of AMSA’s ISO Advisory Committee met at the Association’s July conference in Denver to brainstorm on future steps to guide the standard’s development process and to draft comments on the most recent draft (http://www.amsa-cleanwater.org/private/legreg/outreach/2004-5-3-WG4_N37rev4.doc) of the wastewater standard. AMSA provided these comments (http://www.amsa-cleanwater.org/private/reg_outreach.cfm) to AWWA on August 10. The comments proposed edits to the draft wastewater standard that would harmonize it with the drinking water services standard to avoid unnecessary confusion while maintaining their unique characteristics. The comments also provided information on the unique characteristics of stormwater management in the U.S., and tried to emphasize the need to explicitly incorporate the continuous management principle of “plan, do, check, act” into the standard.

AMSA will be representing the U.S. delegation on behalf of AWWA at the next ISO meeting scheduled to take place at the end of September in Rabat, Morocco. AMSA will also be presenting a paper at WEFTEC 2004 on the ISO issue. The standards are expected to be finalized in July 2005. For more information, please contact AMSA's Managing Director of Government & Public Affairs, Adam Krantz, at 202-833-4651 or akrantz@amsa-cleanwater.org.

Water Quality

AMSA, VAMWA Prepare to Enter Chesapeake Bay Nutrient Permit Appeal
AMSA is preparing relevant paperwork to jointly intervene with the Virginia Association of Municipal Wastewater Agencies (VAMWA) in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). This national pollutant discharge elimination system (NPDES) permit appeal to be heard in the Circuit Court for the City of Richmond, Va., specifically questions a nutrient monitoring program established in the facility’s new permit. Onancock’s permit requires it to monitor, for the first time, nutrients released from the plant, to accelerate planning for nutrient removal technology, and to optimize plant operation to maximize current nutrient removal capabilities. The permitting authority plans to amend Onancock’s permit to impose technology upgrade requirements once Virginia updates its nutrient water quality standard (WQS) for the Chesapeake Bay, develops total maximum daily loads (TMDLs) and determines the required facility upgrades needed to meet the standards.

CBF appealed Onancock’s reissued NPDES permit stating that "Virginia continues to grant permits that sanction the ongoing pollution of the Chesapeake Bay." CBF argues that the court should require Virginia to place strict limits on the amount of nitrogen that Onancock can discharge. CBF’s desired remedy is for Onancock to install technology to achieve the greatest nutrient reduction possible, before the WQS are revised, before the TMDLs are developed, and without the results of the ongoing scientific work in the Chesapeake Bay. The results of this case will set precedent for AMSA’s Virginia members, and could set poor precedent for public utilities in other states. AMSA will keep the membership apprised of further developments in this matter.

AMSA is also planning to file joint comments with VAMWA on EPA Region 2 and 3’s NPDES Permitting Approach for Discharges of Nutrients in the Chesapeake Bay. The three page approach (http://www.epa.gov/region3/) lays out how EPA plans to develop and issue NPDES permits for discharges of nutrients from significant point sources consistent with the Clean Water Act and the goals of the Chesapeake 2000 Agreement. Comments are due to EPA by September 15, 2004.

For more information please contact AMSA’s General Counsel, Alex Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.