Member Pipeline - Regulatory - February 2007 Regulatory Update
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| To: | Members & Affiliates, Regulatory Policy Committee |
| From: | National Office |
| Date: | February 9, 2007 |
Printer friendly versionThe National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to February 9, 2007. 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 Story
Supreme Court Decides Not to Hear Total
Maximum “Daily” Load Case
The U.S. Supreme Court announced January 16, 2007, that it would not
review the D.C. Circuit ruling that all total maximum daily loads (TMDLs) must
include a daily expression of the load. NACWA submitted a reply brief December 8
to the High Court in Friends of the Earth v. EPA, responding to a brief filed in
November by EPA opposing review of the case. NACWA’s reply brief stated support
for review of the D.C. Circuit ruling and challenged EPA’s assertions that the
recently issued Agency guidance on TMDLs (http://www.nacwa.org/getfile.cfm?fn=2006-11-15anacostia.pdf)
was sufficient to resolve the legal uncertainty created by the D.C. Circuit
decision. NACWA is now working with the Wet Weather Partnership and other
stakeholders to determine what next steps should be taken. NACWA maintains that
EPA’s new guidance on TMDLs conflicts with the Agency’s own regulations and with
a ruling by the U.S. Court of Appeals for the Second Circuit, and working with
EPA to clarify the guidance is a potential next step. NACWA also anticipates
court challenges of EPA’s guidance on implementing the D.C. Circuit’s ruling
once it is applied in a permitting context, and the Association is prepared to
become involved in future legal proceedings if appropriate. NACWA will keep
members informed of new regulatory or legal actions regarding the TMDL issue.
Air Quality
NACWA Study Finds Overestimation of POTW
Greenhouse Gas Emissions
NACWA submitted comments on EPA’s Inventory of U.S. Greenhouse Gas
Emissions and Sinks: 1990-2005, Draft for Expert Review (Draft Inventory)
(http://www.nacwa.org/getfile.cfm?fn=2007-01-10Cmts.pdf),
indicating that the document overestimates greenhouse gas emissions from
wastewater treatment processes. The Inventory is currently used only for
information purposes, but it could become more significant in the future due to
increased attention on climate change by lawmakers and regulatory agencies on
both the state and national level. Congress is planning numerous hearings on the
potential causes and impacts of global climate change, and bills that would
limit greenhouse gas emissions have been introduced. In a bill proposed by Rep.
John Olver of Massachusetts, HR 620, the Inventory is used to define “covered
entities” that would be required to limit emissions. California has already
passed a law to cap greenhouse gas emissions, and other states are likely to
follow.
In the Draft Inventory, wastewater treatment ranks fifth in nitrous oxide emissions and sixth in methane emissions. NACWA’s review of the Draft Inventory found that overall, a series of conservative factors led to significant overestimation of these emissions from wastewater treatment. “We recognize that uncertainty exists in calculations of this type,” NACWA stated, “however, the objective should be to use ‘mid-range’ estimates so that a ‘best estimate’ of emissions is developed, rather than one which is inherently biased to overestimate the actual emissions.” NACWA asserted that conservative assumptions should be considered in the uncertainty analysis, rather than preemptively embedded directly in the base calculations for the estimates.
After submitting the expert review comments, NACWA and Air Quality Committee leaders met with EPA officials to discuss NACWA’s comments and the estimation methods used in the Draft Inventory. A draft of the Inventory is expected to be released for public review by the end of February, and NACWA will submit comments on the Inventory during the public review period. The Air Quality Committee requested and received Targeted Action Fund (TAF) support to continue studying the estimation methods used in the Draft Inventory, with a focus on the nitrous oxide emissions estimates. NACWA will inform members about the study results and EPA’s response to NACWA’s public comments.
Biosolids
EPA Announces Decision Not to Regulate
Biosolids Incinerators Under OSWI
On January 22, 2007 (72 Fed. Reg. 2620), EPA announced that it
will not regulate sewage sludge or biosolids incinerators under the Clean Air
Act (CAA) provisions for other solid waste incinerators (OSWI). NACWA submitted
comments to EPA on August 14, 2006, reiterating the Association’s long-standing
position that sewage sludge incinerators (SSIs) are not subject to regulation as
OSWIs under the CAA. NACWA’s involvement in this issue began in 1997, when it
commented on an EPA notice of intent to include SSIs as a category of OSWIs
regulated by Section 129 of the Clean Air Act. Based largely on information
provided by NACWA and its member agencies regarding biosolids incineration and
emissions, EPA ultimately excluded SSIs from the final OSWI rule that was
published in December 2005. EPA announced in June 2006, however, that it was
reconsidering its December 2005 decision in response to a Sierra Club petition,
which claimed that EPA had not properly sought comments on its decision to
exclude SSIs from Section 129.
While sewage sludge incinerators will not be governed by Section 129 of the CAA, EPA has always indicated that they will be regulated under Section 112. In fact, NACWA has learned that EPA’s Office of Air Quality and Standards has begun work on developing an area source National Emissions Standards for Hazardous Air Pollutants (NESHAP) for SSIs. EPA has contacted NACWA for assistance in identifying existing SSIs and finding information on air pollution controls that have been installed since 2001 at existing or new SSIs and any emission test data since 2001. NACWA will follow EPA’s work in developing the NESHAP for SSIs and keep members informed about new developments.
Conferences
2007 NACWA/Wet Weather Partnership CSO
Workshop Registration Now Available
Registration information (http://www.nacwa.org/meetings/)
for this year’s CSO Workshop is now available on NACWA’s website. The
CSO Workshop will be held April 26-27 at the Drake Hotel in Chicago. This is
the fifth CSO Workshop to be held by NACWA and the Wet Weather
Partnership, in cooperation with EPA. This year’s Workshop will highlight key
strategies and developments through case studies from communities nationwide,
which are leading the effort to implement and comply with the National CSO
Control Policy. Each year the Workshop sells out, so register now!
Facility and Collection Systems
NACWA Urges Consideration of Innovative
Approaches for Stormwater Study
NACWA participated in the initial meeting of a National Research
Council (NRC) committee that is conducting a study on Reducing Stormwater
Discharge Contributions to Water Pollution. The two-year study, which is
being performed at the request of EPA’s Office of Wastewater Management, will
address the links between stormwater pollutant discharges and ambient water
quality, assess the current state of stormwater management science, and provide
policy recommendations to EPA. EPA asked the NRC committee to work within the
existing stormwater permit program, which issues permits for municipal,
construction, and industrial stormwater. However, NACWA and other organizations
urged the committee to think in broader terms, considering the benefits of green
infrastructure and a watershed approach for stormwater management, rather than
focusing on “end-of-pipe” approaches and numeric pollutant limits. In its
presentation (http://www.nacwa.org/getfile.cfm?fn=2007-01-22NAS-NRC.pdf),
NACWA highlighted innovative stormwater practices employed by member agencies.
The Philadelphia Water Department, a NACWA member, also gave a presentation on
the city’s comprehensive work to manage stormwater and improve water quality,
ranging from porous asphalt paving to stream restoration. The Natural Resources
Defense Council (NRDC) and American Rivers also emphasized that current local
policies and building ordinances often discourage the use of effective green
infrastructure approaches. NACWA will follow developments in the NRC’s study and
keep members informed about its progress.
NPDES Permit Issues
EPA to Hold Public Meeting on Permit Fee
Incentive Proposal
EPA announced on January 30, 2007, that it would conduct a public meeting on the
proposed National Pollutant Discharge Elimination System (NPDES) permit fee
incentive program. The public meeting, scheduled for February 21, 2007, at U.S.
EPA Headquarters in Washington, D.C., is intended to provide stakeholders an
opportunity to comment on the proposal and to give EPA a chance to more clearly
explain its intentions. Since stakeholders learned of the proposal to encourage
states to fund a larger portion of their permit programs through fees, there has
been skepticism over the real motives behind the program. Some claim the
incentive program is just the initial step towards eliminating all Section 106
funding, but since issuing the proposal on January 4, 2007 (72 Fed. Reg.
293) (http://www.epa.gov/fedrgstr/EPA-WATER/2007/January/Day-04/w22549.pdf),
EPA has insisted that it remains committed to funding the 106 program. With the
President’s request of $221 million for the Section 106 program in FY 2008
(above the trigger of the FY 2006 funded level of $169 million), the proposed
rule would set aside three percent of the FY 2006 state allotment, resulting in
a $5.1 million incentive fund. States that collect permit fees of at least 75
percent of the total state NPDES program costs would be eligible to receive an
allotment of these incentive funds. Only states that collected 100 percent of
total NPDES program costs from permit fees would receive a full share. The rule
would take effect in FY 2008, and comments on the proposal are due to EPA by
March 5, 2007.
NACWA issued a Regulatory Alert on January 5 (http://www.nacwa.org/private/regalerts/ra07-01.cfm) that contains more details about the proposal and requests member input. NACWA will also be participating in the February 21 public meeting. Contact NACWA’s Counsel, Nathan Gardner-Andrews, at ngardner-andrews@nacwa.org with questions.
Regulatory Reform
Executive Order Mandates Improved Consistency,
Review of EPA Guidance
On January 18, 2007, President Bush signed an order rewriting Executive Order
12866. The revised Executive Order included implementation of provisions from a
proposed policy on ‘good guidance’ that was released for comment by the White
House’s Office of Management and Budget on November 23, 2005. The proposed
guidance was designed to ensure consistency in how regulatory guidance is
developed. NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2005-12-21cmtsombggp.pdf)
in December 2005 that generally supported the Proposed Bulletin for Good
Guidance Practices, but also recommended several changes. Among other things,
NACWA disagreed with the use of an economic impact threshold when determining
what guidance documents needed to be announced in the Federal Register. NACWA
suggested that other measures, including the complexity of implementing its
recommendations and the number of stakeholders potentially impacted, be
considered when determining whether a formal notice and comment period was
needed.
The Final Bulletin, issued in conjunction with the Executive Order, maintains a $100 million dollar annual impact threshold for determining what guidance documents need to be formally noticed in the Federal Register. However, the Final Bulletin did expand the definition of “significant guidance document” to clarify what would be included. Most of the EPA offices NACWA generally deals with already follow many of these guidelines. However, the Final Bulletin should provide greater consistency among the different EPA offices and give NACWA and its members more opportunities to weigh in on key guidance documents.
Utility Management
NACWA Advocates for Short-term Fixes to EPA
Financial Capability Guidance
NACWA sent EPA Assistant Administrator for Water Benjamin Grumbles a
list of recommended enhancements (http://www.nacwa.org/getfile.cfm?fn=2007-01-10Grubles_ltr.pdf)
for the Agency to consider as it reviews its 1997 guidance, Combined Sewer
Overflows – Guidance for Financial Capability Assessment and Schedule
Development (Guidance). NACWA’s 2005 white paper, Financial
Capability and Affordability in Wet Weather Negotiations, was the
Association’s initial effort to influence how these financial capability
assessments are conducted. The white paper spurred EPA to revisit the
10-year-old Guidance to see if it needed updating. NACWA has since
initiated a new Targeted Action Fund (TAF) project to delve deeper into these
issues, and the January 10 letter to EPA was intended, in part, to update EPA on
the progress of the project. The letter also provides EPA with a list of several
short-term fixes for the Agency to consider as part of its current Guidance
review process. NACWA’s primary recommendation was that specific criteria or
another alternate, consistent approach or process be developed that incorporates
site-specific, local conditions directly into the affordability analysis.
NACWA’s TAF project on affordability will be completed soon and will be
distributed to the membership upon completion.
Water Quality
NACWA Member and WERF Team Up to Explore
Secondary Contact Recreational Criteria
The Metropolitan Water Reclamation District of Greater Chicago and
the Water Environment Research Foundation are interested in identifying other
public wastewater agencies to collaborate and participate in an epidemiological
study that will examine the risk to human health from pathogen exposure during
recreational activities. Currently focused on the Chicago Areas Waterways
System, the study will help provide a methodology that can be applied elsewhere,
and will significantly help inform the process of developing appropriate,
scientifically defensible, and attainable water quality criteria for inland
waterways designated for secondary contact recreational activities. It also
complements a high-priority research challenge identified by WERF subscribers
and related U.S. EPA efforts.
A day-long meeting for interested stakeholders is planned for Tuesday, February 27, from 10:00 a.m. to 3:00 p.m. in the meeting room at the District’s Stickney Water Reclamation Plant, in Cicero, Ill. If you plan to attend, have questions, or would like to be kept informed about the meeting or proposed study, contact WERF Program Director Margaret Stewart at mstewart@werf.org or 703-684-2470, ext. 7147 by Wednesday, February 21.
EPA Staff Update
EPA Names Research Director for Water Quality
The U.S. Environmental Protection Agency recently named new directors
for its research programs in water quality, human health, drinking water and
ecology. The programs are among eight recently created research initiatives. EPA
filled the top posts for the other four programs – pesticides and toxics,
contaminated sites and resource conservation, global change and mercury, and air
– in 2005. Charles Noss was named as the new director for the program on water
quality. Noss, who has a doctorate in environmental health engineering from
Johns Hopkins University, was deputy executive director of the Water
Environmental Research Foundation before joining EPA.