NACWA August 2006 Regulatory Update

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to August 4, 2006. Please contact Chris Hornback, NACWA Director of Regulatory Affairs at 202/833-9106 or chornback@nacwa.org, with any questions or information on the Update topics.

Top Stories

NACWA Questions EPA Approach in Draft Memorandum on ‘Daily’ Loads
NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-07-27DLcmts.pdf) on July 27 to EPA indicating that the Agency’s draft memorandum on implementing total maximum daily loads (TMDLs) in the wake of the Court of Appeals for the District of Columbia Circuit’s April 25 decision does not adequately address the complex legal and policy issues raised by the decision. In Friends of the Earth (FOE) v. EPA, the court ruled that TMDLs must specify daily pollutant loadings as opposed to monthly, seasonal, or annual loads. EPA’s memo was developed to provide guidance to its regional offices on how to be consistent with the Court’s decision without having a major impact on how TMDLs are actually implemented in Clean Water Act permits. NACWA expressed concern that the approach outlined in the memo may again open TMDLs to legal challenge from environmental activists. In fact, early indications are that the environmental activist community plans to challenge the approach in EPA’s memo if it is finalized.

Based on the Agency’s interpretation of the Court’s decision, EPA’s memo recommends that all regions include a daily expression of the load in every TMDL. NACWA continues to believe that the determination that TMDLs be expressed as daily limits should be limited to the District of Columbia because there is a split among the circuit courts regarding the definition of “daily” in total maximum “daily” loads. In its comments, NACWA also said the draft memo does not provide adequate detail on other important issues raised by the court, including that many pollutants, such as nutrients and bioaccumulative toxics, cannot be meaningfully addressed using a true ‘daily’ approach.

The formal release of EPA’s memo, however, will likely be put on hold because the D.C. Water and Sewer Authority (DC WASA), a NACWA member and a party in the FOE case, has filed a petition with the U.S. Supreme Court for review of the D.C. Circuit’s decision. NACWA submitted an amicus brief supporting DC WASA at the appeals court level, and soon will file another urging the Supreme Court to accept the case for review. DC WASA’s petition for review can be found on NACWA’s Litigation Tracker section of its website (http://www.nacwa.org/private/littrack/).

Air Quality

New Standards for Internal Combustion Engines May Have Broad Implications
On June 12, 2006, EPA proposed new source performance standards for stationary spark ignition internal combustion engines and emission standards for hazardous air pollutants for some stationary reciprocating internal combustion engines (71 Fed. Reg. 33804; http://www.epa.gov/fedrgstr/EPA-AIR/2006/June/Day-12/a4919.pdf). While NACWA’s Air Quality Committee is still reviewing the proposed standards, it is already apparent that these requirements will impact many clean water agencies. Though compliance with the standards will be relatively simple — clean water agencies will need to buy only engines certified under the new standards — it may pose problems for agencies using unconventional fuels such as digester gas. Engine manufacturers may be reluctant to certify their engines for these unconventional fuels, leaving the responsibility for performance testing and reporting in the hands of the owner. NACWA will be providing comments on the standards by the October 11 deadline (the original September 11 deadline was extended on July 27). NACWA’s primary concern with the proposal is the complexity and length of the provisions and the Association will recommend that EPA develop flow charts or other visual aids to more clearly explain the applicability of the requirements.

NACWA Prepares Comments on Incinerator Notice
NACWA is using Targeted Action Funds to prepare comments on EPA’s June 28 notice in the Federal Register (71 Fed. Reg. 36,726) seeking comment on its December 2005 final “other solid waste incinerators” (OSWI) rule to exclude sewage sludge incinerators (SSIs) from coverage under that portion of the Clean Air Act. EPA acknowledged in the June 28 notice that it failed to properly request public comment on its decision to exclude SSIs from coverage. The notice responds to a petition from the Sierra Club, which has long tried to have SSIs regulated under Clean Air Act Section 129, seeking reconsideration of the December 2005 decision. NACWA’s comments will maintain the Association’s long-held position that SSIs should be excluded from Section 129 and will include several supporting documents from earlier comment efforts to ensure the docket for the rulemaking includes sufficient evidence that SSIs are adequately regulated under other provisions.

Comments are due to EPA by Monday, August 14. NACWA will be preparing a comment letter template that members can use to file their own comments. Contact Chris Hornback, NACWA, via email at chornback@nacwa.org, to obtain a copy of the comment letter.

Biosolids

EPA Clarifies Intended Use of Biosolids Survey Information
Several NACWA members have expressed concern over the use of the data EPA is planning to collect with its Targeted National Sewage Sludge Survey set to begin soon. The primary concern is over the information on emerging contaminants like antibiotics and steroids that will also be collected as a part of the survey. NACWA has received clarification from EPA on the use of the data from the survey.

• EPA plans to use the data to first wrap up its Biennial Review of the Part 503 regulations with regard to the nine pollutants still on its 'potential concern' list (barium, beryllium, manganese, silver, 4-chloroanaline, fluoranthene, pyrene, nitrate, nitrite). EPA plans to conduct a revised exposure and hazard assessment for these pollutants using the updated concentration data. Based on the results of these assessments, EPA may or may not develop limits for these pollutants in biosolids.

• Results for total and water extractable phosphorus will be used to help the Agency decide on a policy for controlling this nutrient in land-applied biosolids. Any decisions on phosphorus would be made in collaboration with the wastewater treatment industry, EPA’s nutrient program and the states.

• Revised numerical standards may be proposed for molybdenum based on updated concentration and other data.

• Salmonella information is being collected in the hopes that it will help the Agency begin developing and testing a microbial risk assessment conceptual model.

• Addressing the concerns regarding emerging contaminants, data for polybrominated diphenyl ethers, or PBDEs (flame retardants), and other organics, antibiotics, drugs, steroids, and hormones will be used to help the Agency “prioritize future activities” (e.g., research and analytical standards validation).

NACWA will continue to work with EPA and monitor the survey’s progress, especially as it relates to emerging contaminant issues.

Conferences

Plan Now to Attend NACWA’s Pretreatment and Pollution Prevention Workshop
Start making your plans to attend NACWA’s 2006 Pretreatment and Pollution Prevention Workshop scheduled for October 4-6, in New Orleans, Louisiana, at the Royal Sonesta Hotel in the heart of the city’s French Quarter. This year’s Workshop will allow us to examine implementation of the Pretreatment Streamlining Rule one year after having been finalized and share new expertise on some critical issues facing pretreatment professionals including emerging contaminants, mercury discharges from dental clinics, and much more. Additional details will be posted soon on NACWA’s conference website (http://www.nacwa.org/meetings/#06pret).

Presentations from NACWA Summer Conference Now Available Online
The PowerPoint presentations from NACWA’s Summer Conference, Cross-Cutting Clean Water and Drinking Water Issues…Challenging Traditional Boundaries, are now available on the Association’s website (http://www.nacwa.org/private/ppt/06summer/). NACWA wishes to thank all who worked hard to make this conference a success. A detailed summary of the conference’s committee discussions will be sent to Association members via an upcoming Member Update and highlights from the conference will be featured in the next issue of the Clean Water News.

Enforcement

EPA Enforcement Office Increases its Visibility through Public Data Availability Efforts
NACWA is continuing to track the efforts of EPA’s enforcement office to increase the visibility of its activities to the public. Several years ago EPA unveiled its Enforcement and Compliance History Online (ECHO) database in an effort to better track and report the environmental performance of entities regulated by EPA, including public clean water agencies. NACWA and others in the regulated community criticized the inaccuracy of ECHO’s data as well as EPA’s inability to correct errors in the system. Just last month, NACWA reported on a new database, the Federal Enforcement and Compliance (FE&C) component of EPA’s new Integrated Compliance Information System (or ICIS), which will replace EPA’s antiquated Permit Compliance System. This new system may help improve EPA’s ability to track enforcement activities, but it remains to be seen whether it will improve on the ECHO database’s shortcomings.

Now EPA’s enforcement office is touting a new, more visible way for the public to directly report suspected environmental violations. A new icon has been added to EPA’s home page (www.epa.gov) that links the user to an electronic form (http://www.epa.gov/compliance/complaints/index.html) to complete with the details of the suspected violation. It is unclear how submittals through this new system will be processed and coordinated with the appropriate state agency and NACWA is working to gather this information and will update the membership once it has additional details.

Pretreatment and Pollution Prevention

NACWA Reviewing Draft Survey on Possible Drinking Water ELG
NACWA is currently reviewing a draft survey that EPA intends to distribute to certain drinking water utilities throughout the country in its efforts to determine whether effluent limitation guidelines (ELGs) are needed for drinking water treatment residuals. NACWA has provided informal comments on earlier versions of the survey and is reviewing this latest draft to ensure its comments were incorporated. The Federal Register notice and survey questionnaire are available on EPA’s website (http://www.epa.gov/guide/dw/). This will likely be the last opportunity to comment on the survey before it is sent out. Comments are due by August 18, 2006. NACWA continues to believe that national pretreatment standards for drinking water residuals are unnecessary, as clean water agencies have sufficiently dealt with these wastes through the development of local limits. NACWA will continue to actively engage EPA and other stakeholders on the development of these guidelines.

Utility Management

NACWA’s New Financial Capability Initiative Is Underway
During NACWA’s 2006 Summer Conference in Seattle, Washington, the topic of financial capability and the ability of communities to pay for their growing environmental obligations was discussed during several committee meetings. Based on recent statements from key EPA officials, it appears likely that the Agency will revisit its 1997 document, Combined Sewer Overflows - Guidance for Financial Capability Assessment and Schedule of Development, which is often referenced when the affordability of proposed environmental controls is questioned. NACWA’s Board of Directors has approved Targeted Action Funds for the Association to build on its 2005 White Paper, Financial Capability and Affordability in Wet Weather Negotiations, and further develop a more reasonable approach to assessing a community’s ability to pay for environmental obligations. As EPA revisits this guidance, this initiative positions NACWA to maximize this opportunity to influence the revision process. This new effort will take the concepts from NACWA's White Paper and further develop them into a recommended approach to conducting financial capability assessments that will be provided to EPA as a suggested roadmap for revising its existing guidance.

A small workgroup has formed to start developing a list of guiding principles that would ultimately form the basis for NACWA’s preferred approach to conducting these assessments. A draft list of those principles was shared with members during the Summer Conference. The final document will include a case study, based on the economics of a real community, to illustrate how different approaches to the ‘affordability calculation’ can greatly influence the outcome. This new effort should be completed by the end of November.

Water Quality

NACWA Commends EPA for Memo Supporting State Flexibility on Mixing Zones
NACWA has long maintained that the use of mixing zones is specifically authorized under the Clean Water Act (CWA) and a July 13 EPA memo reaffirmed that states have the authority under the CWA to establish mixing zones as long as certain conditions are met (www.nacwa.org/getfile.cfm?fn=2006-07-13mxzn.pdf ). The memo was sent by Ben Grumbles, EPA Assistant Administrator for Water, to the Agency’s regional offices and also introduces the Compilation of EPA Mixing Zone Documents, described as a collection of guidance documents that EPA has issued to date on the topic.

NACWA worked with its Oregon member agencies to meet with EPA regional and headquarters officials in May and urged the Agency to issue an interpretive statement affirming that the CWA authorizes mixing zones. Consistent with statements made during that meeting, the memo states “EPA has long recognized that the Clean Water Act and its implementing regulations allow for mixing zones and that it is an acceptable and authorized practice for states to allow mixing zones, provided they are used in a manner that protects the designated use of a water body.”

The issue has taken center stage in Oregon where environmental activists have sued EPA Region 10 seeking to have mixing zones banned. Grumbles told NACWA that while the CWA allows mixing zones, states have the ultimate discretion of whether to authorize them in permits. NACWA will continue to track the issue and assist its member agencies in Oregon and other areas where activists seek to challenge the use of mixing zones.

New Working Group on Temperature Issues
Several NACWA members in the Pacific Northwest and Colorado are facing temperature-related regulatory challenges, primarily associated with the protection of endangered species. Whether imposed through a temperature TMDL or some other mechanism, some of these agencies are already facing tough questions over the temperature of their effluent and the impacts it may be having on aquatic life. This is an issue that continues to grow both in scope and complexity and NACWA has formed a small working group of interested individuals in an effort to keep on top of the latest developments. If you are interested in joining this group, please contact Chris Hornback, NACWA’s Regulatory Affairs Director, at 202/833-9106 or chornback@nacwa.org.

NRDC Sues EPA on BEACH Act Mandates, NACWA Weighs Options on Legal Action
NACWA is weighing its options for involvement in a legal challenge of EPA’s activities under the Beaches Environmental Assessment and Coastal Health (BEACH) Act. The Natural Resources Defense Council (NRDC) filed suit against EPA August 3, 2006, for EPA’s failure to conduct adequate studies of pathogens in coastal recreation waters and to update or revise the Agency’s water quality criteria for pathogen indicators in accordance with the deadlines specified for these actions in the BEACH Act. EPA has conducted an extensive epidemiological study over the past few years and is currently reviewing the data from that study, but has not made any decisions about revising the criteria. NRDC believes that EPA’s study is inadequate and has decided to use the courts to force EPA’s hand. NACWA will continue to track this issue as it develops and determines whether to get involved in the case.