NACWA February 2007 Regulatory Update

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The 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.