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NACWA November 2005 Regulatory Update

Member Pipeline - Regulatory - January 2006 Regulatory Update

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To: Members & Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: January 6, 2006

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the January 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 6, 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

EPA Issues Draft Blending Guidance Mirroring NACWA/NRDC Proposal for Comment
The U.S. Environmental Protection Agency (EPA) announced December 19 the release of a draft policy outlining the circumstances under which municipal wastewater treatment plants would be allowed to blend during peak wet weather flows. The draft policy, which mirrors the proposal drawn up by NACWA and the Natural Resources Defense Council (NRDC) and submitted to EPA in October, was published in the December 22 Federal Register, and comments are due January 23, 2006 (70 Fed. Reg. 76,013).

NACWA and NRDC representatives were present when Benjamin Grumbles, EPA’s Assistant Administrator for Water, announced the release of the policy during a press conference at EPA Headquarters. Grumbles said the policy “puts a premium on stopping leaks and spills, improving treatment, and increasing public oversight” and he “commends environmentalists and utilities for working to find common ground on a clean water solution . . .”
The agreement underlying the draft policy offered EPA a sound path forward on an issue that had become highly politicized and appeared to have permanently stalled. EPA’s proposal: 1) provides much-needed national consistency on wet weather flow diversions; 2) offers significant additional environmental and water quality benefits; and 3) ensures necessary public involvement with, and municipal flexibility in making, peak wet weather flow management decisions.

NACWA and NRDC began negotiating an agreement after EPA withdrew its 2003 draft policy in May (http://www.nacwa.org/private/regupdates/may05/). The new draft policy contains a significantly different interpretation of the bypass regulation from what was in the 2003 draft, and NACWA is confident the public comment period will demonstrate broad support for this approach. NACWA will continue its dialogue with NRDC with the goal of developing joint comments in support of the draft. More information about NACWA’s plans to ensure that the policy is issued in final form will be released in the January 6, 2006, Fax Alert.

International Standards Organization (ISO)

NACWA Continues Participation in Effort to Craft Management Standard for Utilities
A work group of international wastewater utility experts met December 1-2 in Pretoria, South Africa, for a final reading of draft wastewater provisions to be incorporated into voluntary international management standards under development. NACWA representatives participated in this group, officially called Working Group 4 (WG4), as part of a larger group of water and wastewater utility officials from more than 20 countries convened by the International Standards Organization (ISO). These officials are delegates of Technical Committee 224 (TC 224), which approved the development of voluntary international standards on the definition and measurement of service activities relating to drinking water and wastewater systems in August 2002.

The only changes allowed to the document were editorial in nature and will result in a “draft international standard” (DIS) expected to be made available in March or April. When it is released, NACWA will work with other U.S. stakeholders to convene a meeting of the U.S. experts to discuss our position and comments. A meeting of the full TC 224 to consider comments on the draft will take place in the fall.

The voluntary standards will address such concepts as defining a common language among stakeholder nations, clarifying consumer expectations, and listings of actions needed to achieve health-related needs of users and protection of the environment. The standards are not expected to substitute for or lead to new regulatory requirements and will exclude standardization with respect to acceptable pollutant discharge levels.

Pretreatment and Hazardous Waste

NACWA Submits Comments Opposing EPA Expansion of Removal Credits Provisions
In comments submitted December 13 on an EPA advance notice of proposed rulemaking (ANPRM) to revise pretreatment regulations on removal credits, NACWA said the decision of whether to allow for removal credits must be made carefully and consider a number of important variables (http://www.nacwa.org/getfile.cfm?fn=2005-12OW-2005-0024Cnts.pdf). POTWs have the discretion to grant removal credits, and, except in rare cases, choose not to because of the potential liability they would incur. One concern is that while toxics entering the POTW plant may be removed during the normal course of treatment, the removal is incidental and may only occur during optimal operating conditions. Thus, upset variables such as solids bulking, biota changes, temperature changes, or heavy rain could limit this incidental removal.

The NACWA comments also raised the concern of how adding more pollutants to the list of those eligible for removal credits could be perceived by activists opposed to the land application of biosolids. “Specifically, NACWA is already aware of several biosolids activist groups that are describing this ANPRM as an ‘industry allowance to discharge more pollutants’ resulting in lower quality biosolids that will be land-applied or otherwise beneficially reused,” the comments said.

NACWA said that the granting of removal credits should not be guided by a national, one-size-fits-all approach, but should be a locally driven decision based on data relevant to each particular area.

NACWA Provides Information to EPA in Push for Updated 50 POTW Study
NACWA is continuing its push to get EPA to update the 50 POTW Study done in 1982, which still serves as the basis for local limits established in many pretreatment programs. Working through the Pretreatment and Hazardous Waste Committee, NACWA is encouraging the Agency to develop a representative list of facilities from around the country that will provide data reflective of current removal technologies.

NACWA continues to meet with EPA in an effort to help the Agency develop parameters for selecting a representative sample of POTWs. The Association solicited information from pretreatment coordinators on their daily average flow rates, treatment processes, and percentages of industrial flow in order to give EPA a better idea of what a “typical” POTW looks like. In addition, NACWA is working to identify POTWs that would be willing to participate in an updated study.

An updated POTW study is crucial for providing the most accurate data reflecting current removal technologies. This data is used in setting limits under the effluent limitation guidelines (ELG) and pretreatment programs. NACWA has argued that no new ELGs should be established until this study is updated.

Most POTWs cannot set their own removal efficiencies because they either have multiple plants or they lack the resources to undertake such a project. As a result, they must rely on the data from the 1982 50 POTW study to establish local limits, which often are too low. Many POTWs do what they can to get data that is more reflective of actual removal efficiencies so they can set higher limits. NACWA staff and committee leaders will meet with EPA officials in January soon to discuss a prospective list of facilities to be used in the study.

Regulatory Reform

NACWA Submits Comments Generally Supportive of OMB Good Guidance Policy
NACWA submitted comments supporting the White House Office of Information and Regulatory Affairs (OIRA) proposal policy designed to ensure consistency in how regulatory guidance is developed (http://www.nacwa.org/getfile.cfm?fn=2005-12-21cmtsombggp.pdf). While NACWA generally agrees with OIRA’s Proposed Bulletin for Good Guidance Practices (GGP), issued for comment on November 23, 2005, several changes were recommended. Among other things, NACWA disagrees with the economic distinction currently used in the GGP and believes that a formal notice and comment process should also be considered for other significant guidance documents that do not meet the economic threshold. NACWA suggests that other measures of a guidance document’s potential impact, 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 is needed.

The Association’s comments pointed out that the distinction between formal regulation and guidance is often a narrow and difficult to distinguish and that a policy is needed to clarify when a guidance document is sufficiently significant to warrant a public comment period. NACWA said the condition that a guidance must have an “annul effect of $100 million” in order to be considered “economically significant” as opposed to being simply a “significant guidance document” is troublesome because guidance documents “by their very nature should not require a regulated entity to incur significant costs.” Moreover, the comments said some guidance documents should be subject to notice and comment regardless of their economic impact because of their importance to stakeholders.

Water Quality

NACWA Outlines Concerns as EPA Revisits Performance-Based Measurement System
EPA may revive its effort to develop an analytical streamlining effort, also known as a performance-based measurement system (PBMS), as a possible alternative to the list of test methods under 40 CFR Part 136 that EPA has already approved for Clean Water Act analytical measurement. Key Agency officials, including Michael Shapiro, the deputy assistant administrator for water, who comprise the Forum on Environmental Measurement, are reviewing a 1997 proposal on PBMS to determine whether and how to move forward on such an approach for clean water programs.

Representatives from NACWA and industry groups met December 7 with officials from the EPA Office of Science and Technology (OST) in the Office of Water about concerns they have with the approach. Namely, industrial dischargers are concerned that a facility, which has already demonstrated compliance through use of one of EPA’s approved test methods, could be found in violation if a different and possibly more sensitive PBMS method is employed. NACWA did not rule out PBMS altogether saying that for certain analytes such an approach may improve analytical capabilities. However, NACWA believes that large-scale PBMS program may not work, and could be especially hard on small POTWs that may not be able to handle the lab reports associated with such an approach.

EPA has indicated that any PBMS approach would be voluntary and would likely be a “middle-of-the-road” option using a reference method approach and would not be simply a list of performance levels that a facility could try to meet using any method. While some flexibility has already been incorporated into the approved test methods under 40 CFR Part 136 allowing for changes to the methods without prior approval, EPA believes a PBMS approach will encourage further advances in analytical capabilities. Moreover, any steps EPA takes toward incorporating a PBMS approach would require public notice and opportunity for comment.

Work Continues on WET Implementation Guidance; More Input May be Sought
Draft guidance on implementing Whole Effluent Toxicity (WET) requirements that was released in December 2004 is still a work in progress, and EPA may meet with interested parties in the next two or three months to get more information on how to approach WET implementation. For years, NACWA has been pushing EPA to publish guidance that would help clarify some of the issues complicating the implementation of WET testing requirements and the development of reasonable permit limits.

In March 2005, NACWA commented on the 2004 draft that many of the Association’s concerns still have not been addressed (http://www.nacwa.org/getfile.cfm?fn=2005-03-31AMSACmtsOW-2004-0037.pdf). For example, the Association believes the draft guidance in its current form would hinder efforts to use improved WET approaches in many states and will increase the likelihood that dischargers will receive a numeric WET limit.

NACWA will keep the membership informed as this issue develops further. NACWA is nearly finished with work on its issue paper on WET permitting issues. Using the December 2004 decision by the U.S. Court of Appeals for the D.C. Circuit upholding the WET methods, along with existing guidance and policy, and real permit language, the issue paper will help members navigate the world of WET permitting. The white paper will be released by the end of January.

Discussions Continue on Key Issues in Detection/Quantitation FACA Meetings
NACWA continues to participate in the federal advisory committee (FAC) meetings on detection and quantitation requirements. One of the key issues discussed at the December 8-9 meeting was how to express water quality based effluent limits (WQBELs) in National Pollutant Discharge Elimination System (NPDES) permits and how the enforcement of these limits should be handled.

At the next meeting, scheduled for March, the FAC will discuss whether the group is ready to proceed to the pilot testing stage to determine whether the list of detection and quantitation procedures that have been selected so far will actually perform. NACWA and other municipal representatives have urged the committee to ensure that data and measurement quality objectives, which are critical values for assessing the performance of various procedures, are established before pilot testing begins.