NACWA December 2006 Regulatory Update

Click here for previous updates.

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the December 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to December 5, 2006. Please contact NACWA’s Chris Hornback at 202/833-9106 or chornback@nacwa.org or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA Efforts Result in Upcoming Regulation of Silver-Discharging Washing Machine
EPA has expressed its intention to regulate washing machines that release silver ions intended to disinfect clothing. While NACWA is still working to confirm the announcement with EPA, it does appear that EPA will issue a Federal Register notice in the next few weeks. NACWA first called EPA’s attention to the appliances in a February 2006 letter (http://www.nacwa.org/private/reg_outreach.cfm) stating that “NACWA’s member agencies are very concerned about the water quality impacts from the discharge of silver ions from this new machine as well as from other residential pesticide uses.” The Association’s outreach efforts also helped bring the media’s attention to this issue. NACWA was quoted in the Wall Street Journal and on New York City’s CBS-affiliated television station about the potentially harmful effects of silver ions in the environment.

The size of the silver ions used in the washing machines has led to a broader discussion of nanotechnology and its impacts on the environment. While some are still debating whether the silver washing machine issue would in fact be the first set of regulatory controls for nano-scale material, the issue of nanotechnology and its potential impacts on the environment is garnering significant attention among researchers, environmental groups, and legislators. A group of researchers are now calling for a coordinated program of risk research, laying out a series of five "grand challenges" facing nanotechnology. In a recent article in the journal Nature, the researchers outline a 15-year plan that focuses on:

• Developing instruments to measure environmental exposure to nanomaterials.
• Determining the toxicity of existing nanomaterials and models to predict the toxicity of new engineered nanomaterials.
• Creating methods to examine the impact of nanomaterials from production to disposal.
• Establishing programs to sponsor risk-related nanotechnology research.

NACWA has begun work to initiate a dialogue on the increasing number of consumer products that are being developed with new, sometimes toxic ingredients, like silver-discharging washing machines and hundreds of other products that contain nanotechnology, pesticides, and surfactants (see related story below). NACWA will continue to advocate for regulation of products that have potentially harmful effects on wastewater treatment and the environments.

Biosolids

NACWA California Members Gain Major Legal Victory in Biosolids Land Application Case
A federal court in Los Angeles issued a written opinion (http://www.nacwa.org/private/legforms/cases.cfm) on November 22 granting a significant legal victory to the City of Los Angeles, the Orange County Sanitation District, and the Sanitation Districts of Los Angeles County, all NACWA members, in their fight against a ban by Kern County, Calif. on the land application of biosolids. The ban, which was specifically designed to apply only to the three LA-area municipalities, would have gone into effect in January 2007 and would have caused a significant impact on the biosolids management programs of these municipalities. If the ban ultimately succeeds, it could set a dangerous precedent, leading to bans on land application of biosolids in other parts of the country.

In issuing a preliminary injunction against enforcement of the ban, the U.S. District Court for the Central District of California noted that the ban would result in “detrimental environmental effects,” and further stated that “there is no indication that the land currently in use has been harmed by the practice.” The court then went on to dismiss the claims by Kern County that land application of biosolids is a public health risk, concluding that “the available evidence suggests that the practice has been undertaken safely throughout the United States without any indication of detrimental environmental or health impacts, and indeed is the most environmentally sound method of managing the material.”

The written opinion follows a tentative oral order granting the preliminary injunction issued at a hearing in October. Kern County is expected to appeal the district court’s ruling to the U.S. Court of Appeals for the Ninth Circuit. NACWA will continue to update the membership on the progress of the case and on other legal and regulatory developments regarding biosolids.

Biosolids Survey Participation Requested by December 20th
The North East Biosolids & Residuals Association (NEBRA) and its partners (Biocycle, Northwest Biosolids Management Association, and the Wisconsin Department of Natural Resources) are conducting a survey to update knowledge of how biosolids are used or disposed of in the U.S. NACWA’s committee chairs helped NEBRA develop the survey, which is funded by an EPA grant, and feel that having accurate information on how POTWs manage their biosolids is critical for the future of biosolids management. While some information has already been collected from state agencies and EPA, NEBRA and its partners are now requesting additional information from the wastewater treatment community. Please go to http://www.surveymonkey.com/s.asp?u=556492785811 to complete the 15-20 minute survey by the December 20 deadline. Your facility and its data will not be identified without your permission. The required information for the survey includes average daily flow, population served, the amount of sewage sludge/biosolids used or disposed by your facility, and the quality (Class A, Class B, or both) of that material. Additional requested data, such as design flow and amount of wastewater received, is optional. Reports summarizing the survey results will be available for free download from the NEBRA, BioCycle, and Northwest Biosolids Management Association websites in early 2007.

Conferences and Meetings

Don’t Miss the NACWA Standing Committee Meetings at the 2007 Winter Conference
Join your clean water colleagues January 30 – February 2, 2007 for NACWA’s 2007 Winter Conference, Global Trends Impacting Public Utilities . . .The Rising Cost of Clean. This year’s program will examine the increasing financial pressures municipalities face from external, sometimes global forces. With environmental regulations, consent decrees, and other mandates forcing municipalities to plan their capital improvement budgets years and often decades into the future, the added level of uncertainty with regard to how far the municipal dollar will ultimately go is of critical importance. All of NACWA’s Standing Committees will meet during the Conference and will provide attendees with the latest updates on priority clean water issues. Attire for the winter conference is business casual. Online conference registration and the agenda are now available, so please visit NACWA’s website (www.nacwa.org/meetings/07winter) for the most up-to-date information on the 2007 Winter Conference. Register today!

EPA Strategic Plan

EPA Releases Draft Strategic Plan for 2006-2011
EPA recently released its 2006-2011 Strategic Plan (http://www.epa.gov/ocfo/plan/plan.htm). The Strategic Plan maintains the five goals that were described in the 2003 - 2008 Strategic Plan, but reportedly reflects a sharpened focus on achieving more measurable environmental results. The five goals are Clean Air and Global Climate Change, Clean and Safe Water, Land Preservation and Restoration, Healthy Communities and Ecosystems, and Compliance and Environmental Stewardship. Based on NACWA’s preliminary review of the Clean and Safe Water component of the plan, there does not appear to be any major course changes from the 2003 plan. NACWA’s comments on the Draft 2003-2008 Strategic Plan (http://www.nacwa.org/getfile.cfm?fn=04-25-03FYcmts.pdf) focused on the aggressive nature of goals and targets laid out in the plan and the lack of any specifics regarding how to achieve those goals.

Facility and Collection Systems

NACWA Comments on EPA Draft Significant Noncompliance Policy
On November 13, NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-11-13epaltr.pdf) on draft revisions to EPA’s SignificantNoncompliance (SNC) Policy (http://www.nacwa.org/getfile.cfm?fn=2006-08epasnpdraft.pdf), which address violations from wet weather sources, including combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs). Though the draft policy was not circulated publicly for comment, NACWA compiled a list of concerns with input from member agencies and included them in a letter to EPA’s director of regulatory enforcement. NACWA’s comments noted that a national SSO rule or policy would better serve clean water agencies and the environment than the SSO provisions in the draft policy. As stated in the comments, “NACWA does not believe that ‘rulemaking through guidance’ is an effective approach, particularly regarding a national issue like SSOs, and encourages EPA to move forward expeditiously on a national SSO rule or policy.” NACWA also sought clarification on other issues, including that the permitting authority should not designate an overflow as SNC if “there are mitigating circumstances” and that portions of the draft guidance may duplicate certain permit provisions. In addition, the comments note that the definition of “significant overflow” in the draft policy is too broad and extends beyond the reach of the Clean Water Act. While NACWA supports EPA’s intentions to include wet weather events in its SNC guidelines, the draft policy should not apply to violations that are addressed in a formal enforcement action, such as a consent order to address SSOs. NACWA will continue to track this issue and provide input to EPA as this policy evolves.

Pretreatment and Pollution Prevention

NACWA Initiates Dialogue on Emerging Contaminants from Consumer Products
An increasing number of consumer products that contain “compounds of concern” are entering the market, and these compounds may enter the wastewater stream, potentially impacting wastewater treatment processes and the environment. Examples of these types of consumer products include silver ion washing machines (see story above), permethrin-impregnated clothing, and soap containing triclosan. The compounds of concern are often added to products only for marketing reasons, with little or no actual benefit to the consumer, and the environmental effects of the compounds are usually uncertain. The chairs of NACWA’s Pretreatment and Pollution Prevention, Biosolids Management, and Water Quality Committees, as well as the leaders of the Emerging Contaminants Workgroup, held a conference call November 28 to begin planning a “national dialogue” on the use and regulation of these consumer products. The committee chairs envision that NACWA will meet with other organizations that are studying these products or that have concerns about their environmental impacts, leading to development of a strategy for regulating these products and/or controlling the release of compounds of concern into wastewater. NACWA will keep members informed about this dialogue as it develops.

Utility Management

NACWA Continues Work on Collaborative Utility Management Effort
NACWA has been actively involved in a collaborative effort to refine a list of attributes describing effectively managed utilities and recently participated in a November 8-9 working session, which was the last major meeting of the Effective Utility Management Steering Committee charged with the review. The Steering Committee was created as an outgrowth of the Statement of Intent on Effective Water Sector Utility Management (http://www.nacwa.org/getfile.cfm?fn=2006-05-02UMGMTjs.pdf), entered into in May 2006 by the Environmental Protection Agency (EPA), NACWA, the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the American Public Works Association (APWA), and the National Association of Water Companies (NAWC). Since signing the statement of intent, the participating organizations have formed the Steering Committee, comprised of representatives from each of the signatories, and have actively participated in the work of the Committee. In addition to refining a list of attributes of effectively managed utilities, the Steering Committee also has worked on a set of measures that utilities can use to evaluate their performance and is compiling a toolbox of vital resources that each of the participating organizations already offer to assist utilities in improving the management practices. The final product from the effort, which will include the list of attributes and the resource toolbox, is expected in the spring of 2007.

Water Quality

EPA Develops Website for Nutrient Information
EPA has developed a new website for nutrient information, called N-STEPS: Nutrient Scientific Technical Exchange Partnership & Support Center (http://n-steps.tetratech-ffx.com/NTSChome.cfm). At the moment there is not much information posted, but NACWA understands that the Agency will be adding a considerable amount of additional information. The presentations from EPA/state nutrient meetings, which are under "Nutrient Criteria Information/Presentations," may be of interest to NACWA members. This section of the site includes presentations from more than 20 states regarding their nutrient programs, as well as presentations from EPA staff (both Regional and Headquarters) and from non-government scientists, regarding key nutrient criteria issues. In addition to tracking EPA’s efforts on nutrient issues, NACWA is also working with staff from the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) to ensure states have adequate time and resources to develop their own, scientifically valid nutrient criteria in lieu of EPA’s default national criteria.

EPA Issues Memo Interpreting Key Total Maximum “Daily” Load Decision
EPA issued a final memorandum (http://www.nacwa.org/getfile.cfm?fn=2006-11-15anacostia.pdf) on November 15, attempting to clarify and provide some flexibility in how daily discharge limits in permits should be expressed to comply with total maximum daily load (TMDL) requirements. The memo, Establishing TMDL ‘Daily’ Loads in Light of the Decision by the U.S. Court of Appeals for the D.C. Circuit in Friends of the Earth, Inc. v. EPA and Implications for NPDES Permits, recommends that “all future TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments.” However, EPA also states in the memo that the D.C. Circuit decision, which addressed TMDLs for Washington D.C.’s Anacostia River, does not require “any changes to EPA’s existing policy and guidance describing how a TMDL’s wasteload allocations are implemented in NPDES permits.” In Friends of the Earth, the D.C. Circuit held that two TMDLs did not comply with the Clean Water Act because they were not expressed as “daily” loads. NACWA is supporting its member, the District of Columbia Water & Sewer Authority (D.C. WASA), in appealing the case to the U.S. Supreme Court and submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-07-27DLcmts.pdf) on a draft of EPA’s memo in July. EPA is developing a “fact sheet” to help both clean water agencies and regulators take TMDLs currently expressed in non-daily terms and convert them to TMDLs expressed in daily terms. A draft is expected to be ready for circulation and comment later this month.

As expected, EPA cited the final memorandum when it asked the U.S. Supreme Court on November 22 to reject D.C. WASA’s petition to review the Anacostia case. EPA believes that its final memorandum and pending fact sheets provide enough flexibility to state permitting agencies and to clean water permit holders and clears up any ambiguity on how to apply daily limits in TMDLs and NPDES permits. If the Supreme Court does not take the case, which seems likely given the lack of EPA support for review, NACWA expects additional legal challenges from the environmental activist community regarding the legitimacy of the approach laid out in the November 15 memorandum.