NACWA February 2006 Regulatory Update

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to February 14, 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, NRDC Submit Joint Comments on EPA Peak Wet Weather Flow Policy
The peak wet weather flow policy proposed by the U.S. Environmental Protection Agency (EPA) in December received 62 comments, including joint comments submitted January 23 by NACWA and the Natural Resources Defense Council (NRDC)(www.nacwa.org/getfile.cfm?fn=2006-01-23letter.pdf). The majority of the comments generally supported the proposed policy with many seeking clarification of certain provisions. The proposed policy is based on an agreement forged by NACWA and NRDC. An earlier proposal released by EPA in 2003 had to be withdrawn after it received 98,000 comments, most of which were negative.

Speaking at NACWA’s 2006 Winter Conference on Improving Knowledge Management in Today’s Utility, James Hanlon, EPA’s Director of Wastewater Management, said he has been directed to present the Agency’s senior managers with options for a final policy within the next six to eight weeks. He identified some of the areas in which clarification was sought. For example, some wanted to know how the policy would affect existing permits, whether the policy would apply to certain aspects of the treatment process, such as tertiary treatment, and whether consent decrees would be affected. The Agency plans to address these issues in its final document and will continue to consult with NACWA and NRDC.

Meanwhile, NACWA staff have prepared a matrix of comments EPA received on the policy which will be posted on the Association’s Regulatory Correspondence & Outreach section of it website soon (http://www.nacwa.org/private/reg_outreach.cfm). NACWA will also be meeting with the Agency to discuss comments and provide any further input needed by EPA.

Biosolids

NACWA Continues to Follow EPA Work on New Sewage Sludge Survey
EPA Office of Science and Technology (OST) officials continue work on a new targeted survey of pollutants in biosolids. NACWA has learned that the study design for the survey has not been completed, but that sampling may begin at nearly 100 publicly owned treatment works (POTWs) nationwide this spring. The survey effort is now a year behind its anticipated schedule as EPA continues to grapple with which contaminants to examine in the study, which analytical methods will be required, and how to ensure the survey is representative of the nation’s biosolids. An initial list of 15 pollutants identified for additional screening in December of 2003 has been modified, but NACWA does not have the exact list of pollutants that will be targeted by the survey. NACWA understands that the Part 503 metals, as well as some semivolatiles, and microbials will likely be among the list of pollutants. NACWA will alert its members as soon as it obtains a copy of the survey design and learns when sampling will in fact begin.

Conferences

NACWA Winter Conference on Knowledge Management a Major Success
More than 200 people attended NACWA’s 2006 Winter Conference in Palm Desert, Calif., on Improving Knowledge Management in Today’s Utilities. The conference focused on how to retain critical knowledge about the operation of municipal wastewater treatment plants when crucial employees retire and how to handle the transition in the midst of staff changes.

Lynne Lancaster and David Stillman, cofounders of Bridgeworks, LLC, a firm that specializes in helping organizations navigate these types of issues, said in their keynote address that utility managers should hold regular dialogues with employees who may be contemplating retirement in order to smooth the transition.

“Knowledge transfer is the invisible lifeblood not only of everything you’ve done, but of what you’ll do in the future,” Stillman said. A critical component of knowledge transfer involves not just the transfer of raw information, but knowledge of how to perform a task better and more efficiently given the changes in workforce. The current workforce is composed largely of baby boomers—those born between 1946 and 1961, a population of about 80 million people, who are nearing retirement. The next generation of workers—Generation X—consists of about 46 million people, meaning the employee pool is shrinking significantly. Lancaster and Stillman said it is important to initiate the conversation about making the transition to the next generation of workers as early as possible. “It’s not just about creating clones of the last generation, but is an opportunity to really shake things up,” Lancaster said.

Other speakers said utilities should develop succession planning models and develop retention strategies that may vary depending on the size and location of the facility. Donnie Wheeler, NACWA president and general manager of the Hampton Roads Sanitation District, Virginia Beach, Va., said succession planning is an ongoing process and should never be viewed as a one-time activity.

NACWA’s committees also had full agendas at the conference with important discussions on next steps for addressing sanitary sewer overflows (SSOs), a possible follow-up to the 50 POTW study, and EPA efforts to issue final guidance on peak wet weather flows. More details about the proceedings from each committee will be made available in a Member Update to be released soon.

EPA Budget

Administration’s Proposed FY 2007 Budget Slashes State Revolving Fund Again
The Clean Water State Revolving Fund (CWSRF) would be cut to $688 million in fiscal year 2007 under the EPA budget proposal announced Feb. 6. While it has become customary for the Administration to cut CWSRF funding, Congress can be expected to restore some of it. However, the CWSRF was only funded at $887 million in the current fiscal year, still a significant drop from the $1.1 billion the previous year and the $1.35 billion level that had been provided since the late 1990s.

Overall funding for EPA would drop to $7.3 billion from $7.6 billion in fiscal 2006. Some regional water programs would see slight increases. For example, the budget proposal would increase funding for the Chesapeake Bay program from $22 million to $26 million.

NACWA continues to push for full funding for the CWSRF with a focus on doing this via a trust fund, which would be created by the recently introduced Clean Water Trust Act of 2005 (H.R. 4560). More information on EPA’s budget and the funding issue is available in this month’s Legislative Update.

Facility and Collection Systems

Peak Wet Weather Flow Policy Nearly Final, NACWA Confronts SSO Issue
With EPA officials saying they may issue a final policy on addressing peak wet weather flows within the next two months, NACWA and members of the Facility and Collection Systems Committee are contemplating next steps for dealing with sanitary sewer overflows (SSOs). EPA officials have hinted that they do not intend to finalize a rule on SSOs in the near future and that one option is to undertake an effort similar to NACWA’s negotiations that led to the draft policy on peak wet weather flows.

EPA released a draft “fact sheet” in 2005 purporting to outline the Agency’s thinking on SSOs, but NACWA submitted a letter in September 2005 indicating its opposition to the approach, saying the Agency needs to conduct a rulemaking (http://www.nacwa.org/getfile.cfm?fn=2005-09-13grumbles.pdf). NACWA continues to believe that SSOs are best addressed through the National Pollutant Discharge Elimination System (NPDES) permit program rather than through enforcement, and that any final rule or policy should contain, among other things, an affirmative defense for unavoidable overflows. Once the peak wet weather flows guidance is final, NACWA will reengage the Agency on the SSO issue.

Pretreatment and Hazardous Waste

White Paper Provides Guidance on Controlling Mercury Discharges from Dental Clinics
A NACWA white paper, entitled Controlling Mercury in Wastewater Discharges from Dental Clinics, seeks to help communities and states that are considering a requirement that dental clinics install amalgam separators (http://www.nacwa.org/advocacy/special.cfm). A number of highly technical issues are associated with the generation and treatment of wastewater from dental clinics, and many clean water agencies must grapple with determining the appropriate steps to address mercury discharges from these operations.

The three main approaches to controlling mercury discharges, outlined in the white paper, are to: 1) implement numerical wastewater limits; 2) recommend or require ‘best management practices;’ and 3) recommend or require the installation of amalgam separators. The white paper also includes various case studies and a discussion of the potential benefits associated with a uniform separator certification program.

NACWA released a report in 2002 indicating that dental clinics are the largest source of mercury in wastewater when compared to other users who discharge to wastewater treatment plants. The American Dental Association (ADA) likewise estimates that half of the mercury entering POTWs comes from dental offices. Many dental clinics use a basic type of filter to keep their vacuum systems clear and to protect them from solids that pass through. While this helps filter out larger pieces of amalgam, the smaller particles still get through and are released to the sewer system. Some communities, in an effort to decrease mercury levels in treatment plant discharges, have required dental clinics to go beyond these basic filters.

Utility Management

NACWA 2005 Financial Survey Provides Even More Comprehensive POTW Information
NACWA released the 2005 installment of its triennial survey on utility revenues, expenses, debt financing, capital needs, sewer service charges, residential and industrial rates and rate structures, staffing levels, and salaries. The results of the survey are contained on a CD-ROM that has been sent to all NACWA members via Member Update 06-03 (http://www.nacwa.org/private/mem_index.cfm). The 2005 survey expands on the information historically covered, adding new data on the status of asset management programs, security-related efforts, and energy use and costs.

With 141 agencies in 38 states and Washington, D.C., responding to the survey, the results provide a glimpse into the financing and management trends of wastewater utilities from coast to coast. The CD-ROM includes a hyper-linked PDF version of the survey report, which allows users to navigate to any report section from the Table of Contents. The CD-ROM also features Excel spreadsheets allowing users to analyze survey data in a variety of ways to meet their unique needs. All of the information from the 2005 Financial Survey and from previous surveys is also available in a searchable format on the Association’s CleanWater Central™ database, (http://www.cleanwatercentral.org). NACWA members can access the CleanWater Central™ database with their NACWA website username and password.

Water Quality

NACWA Releases Whole Effluent Toxicity (WET) White Paper on Utility Permit Issues
A NACWA white paper, Whole Effluent Toxicity NPDES Permit Testing and Limitations for Public Agencies, will help clean water agencies navigate the complex and often arcane topic of whole effluent toxicity (WET) testing in certain Clean Water Act (CWA) permits (http://www.nacwa.org/private/wetwp/). The NPDES permit program requires POTWs to conduct WET tests during each permit cycle. At the same time, the NPDES permit regulations require WET limits in a permit if data show that the facility has a “reasonable potential” (RP) to cause or contribute to a receiving water excursion above either the numeric state water quality standards for WET or the state’s narrative (“no toxics in toxics amounts”) water quality standard. These requirements are of substantial concern for clean water agencies because WET permit limitations often pose difficult compliance challenges, and it is difficult and expensive to determine and/or correct the underlying cause of WET exceedances.

The U.S. Court of Appeals for the District of Columbia upheld EPA’s WET test methods, which were challenged by NACWA, several state POTW organizations, and industry groups, but did not support any particular permitting use of WET. The NACWA white paper is based largely on that appeals court decision and includes guidance for developing 1) WET testing conditions, 2) endpoints for judging results, and 3) permit conditions that provide for (based on WET results) moving to less frequent routine testing, toxicity determination procedures, and numeric permit limits when justified. The white paper also provides suggested NPDES permit language taken from actual CWA permits from around the country.

NACWA Raises Concerns with Revival of Performance-Based Measurement Systems
In a letter to EPA’s Office of Science and Technology (OST), NACWA expressed concerns about the Agency’s potential revival of Performance-Based Measurement Systems (PBMS) for CWA programs (http://www.nacwa.org/getfile.cfm?fn=2006-01-13pbms.pdf). EPA’s current approval process for analytical methods, contained in 40 CFR Part 136, allows all stakeholders, specifically those who will be responsible for using and interpreting the results from analytical methods, to review and comment on the procedures, how they were validated, and how they will be implemented. A PBMS approach does not provide the stakeholders, whose compliance status relies on the performance of the method, adequate opportunity to understand, comment on, or question that method. NACWA argues that there are better ways to improve and streamline existing approval procedures than implementing a PBMS-type approach.

NACWA’s letter makes it clear that EPA’s current methods approval process would benefit from the creation of more formal and robust protocols for both method development/validation and for determining if the methods meet their intended uses. The Association also expressed concern with the level of sophistication required of end users, specifically clean water utilities, to adequately analyze laboratory results from a PBMS method. NACWA noted that a large number of small utilities across the country do not have the analytical expertise or equipment needed to review laboratory data or proposals to ensure that only data meeting method standards are used for permit compliance. The Association will continue to work with EPA on the PBMS issue if the Agency elects to pursue it further.