NACWA Regulatory Update July 2005

Click here for previous updates.

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to August 5, 2005. Unless another person is specifically listed, please contact Chris Hornback, NACWA Director for Regulatory Affairs, at 202/833-9106 or at chornback@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA Summer Conference in Hilton Head Addresses Wet Weather Issues
More than 200 people attended NACWA’s 2005 summer conference, Wastewater Conveyance and Treatment . . . Navigating an Uncertain Regulatory Environment. Sessions focused on impacts to and options for publicly owned treatment works (POTWs) in the midst of the U.S. Environmental Protection Agency’s uncertain and inconsistent regulatory policies, particularly regarding wet weather. Highlighting the conference was a roundtable on the most significant wet weather challenges and how to address them featuring representatives from two environmental activist groups, NACWA members, and an official from EPA. Comments from the activists and NACWA representatives revealed a remarkable amount of agreement, even on the contentious issue of blending. All agreed on the need for more funding to help POTWs meet their clean water obligations.

Chris Westhoff, NACWA Treasurer and Assistant City Attorney for Public Works in Los Angeles, Calif., said EPA may be considering treatment requirements for stormwater, which he said would cost untold billions, even as budgets get tighter. “They seem to believe if you can measure it, it must be bad, and we have to treat it,” Westhoff said. Jerry Johnson, NACWA Board Member and General Manager of the District of Columbia Water and Sewer Authority, said the lack of clarity in EPA’s policies makes it difficult for treatment officials to know where to direct their scarce resources. Meanwhile, Kevin Weiss, the Manager of EPA’s Sanitary Sewer Overflow (SSO) Team, described the SSO program as one driven by enforcement and said the Agency does not think it can set standards for collection systems at this time. Instead, the Agency is focusing on case-by-case solutions. He questioned what the technology basis should be for short-term discharges and whether EPA should look for a national standard or move forward case by case. Nancy Stoner, of the Natural Resources Defense Council (NRDC), and Paul Schwartz, of Clean Water Action, outlined their own ideas for dealing with wet weather challenges. Stoner said treatment officials and others involved in negotiating the SSO rule “need to work together to get the rule done.” She also pointed to the problem of stormwater runoff caused by increasing development and said developers should help foot the bill to expand the capacity of wastewater treatment plants to handle these additional loads. “It’s not expensive to put in stormwater controls when you’re building, but it’s harder when you have to retrofit,” she said. In addition, she called for an integrated strategy to address the establishment of water quality standards, compliance, and enforcement. She agreed with NACWA members that sewer overflows are unavoidable, but said an integrated policy will minimize their frequency and impacts. Conference presentations are available at NACWA’s website (http://www.nacwa.org/private/ppt/05summer/).

The conference also featured sessions on new technologies and strategies NACWA member agencies are using in their ongoing commitment to meet today’s Clean Water Act challenges. These include the use of a membrane bioreactor system with split-flow treatment for peak flows being implemented by the Wastewater Treatment Division of the King County (Wash.) Department of Natural Resources and Parks. Don Theiler, NACWA Board Member and Director of the Division, said the system has a smaller footprint that can be enclosed to control odor and has a slightly lower capital cost but a slightly higher operation and maintenance cost. Adel Hagekhalil, NACWA Collection Systems Issue Leader and Division Manager for the Los Angeles Wastewater Engineering Services Division, discussed proactive collection system cleaning that involves checking “hot spots” such as areas where fats, oils, and grease (FOG) may build up in places with a high concentration of restaurants. Robert Campbell, NACWA Board Member and Director of the Metropolitan Sewer District of Greater Cincinnati, discussed that city’s basement cleanup program for backups that are capacity related. Summaries of the NACWA committee meetings will be available shortly in a Member Update.

EPA Budget and Appointments

EPA 2006 Budget Bill Cuts SRF, Funds National Biosolids Partnership
The clean water state revolving fund (SRF) was cut to $900 million in the fiscal year 2006 Interior and Environment Appropriations bill that includes EPA’s budget. The clean water SRF total is down from the $1.1 billion approved in FY 2005 and from the $1.35 billion that had been provided in previous years. The bill also contains about $280 million in congressional earmarks, most of it for drinking water, stormwater, and sewer projects, but that is nearly $200 million less than was approved in the current spending cycle. Congress also zeroed out $15 million for the Water Quality Cooperative Agreements program, which provided partial funding for the pretreatment workshop NACWA conducts annually. NACWA’s advocacy work helped secure $1 million for the National Biosolids Partnership. President Bush signed the bill August 2.

Senate Approves Bush Nominees to Key EPA Positions
The Senate recently approved President Bush’s nomination of Marcus Peacock to be Deputy Administrator of U.S. EPA. Peacock is an engineer who formerly served as Associate Director for natural resource programs at the White House Office of Management and Budget (OMB). Granta Nakayama, an attorney with the law firm Kirkland & Ellis, was confirmed as the EPA Assistant Administrator for Enforcement and Compliance Assurance. Please see NACWA’s July Legislative Update for more details on these issues.

Pretreatment

OMB Review of Pretreatment Streamlining Rule Continues; NACWA Work Shows Benefits
The long-awaited Pretreatment Streamlining Rule is still being reviewed by OMB, but is expected to be signed this month. NACWA members and staff met with OMB officials in May to push for reforms in the pretreatment program that, among other things, would give POTWs the flexibility, based on local conditions, to determine whether pollutant limits should be based on mass or concentration (http://www.nacwa.org/advocacy/co/2005-03-17PretStrmltr.pdf). The Association also pushed for revising the definition of significant non-compliance because most violations are administrative and do not affect the environment. NACWA also advocated for changing how non-significant categorical industrial users (CIUs) are determined. Those who attended the meeting on behalf of NACWA said they felt the session was productive.

NACWA to Meet with EPA on Surveys for Drinking Water Utility Effluent Guideline
NACWA staff and the leadership of the Pretreatment and Hazardous Waste Committee will meet with science and technology officials in the U.S. EPA Office of Water soon regarding facility surveys for the drinking water utility effluent limitation guideline (ELG) currently under development. NACWA will participate in the development of this regulation because it will affect member POTWs that receive indirect discharges from drinking water utilities or that operate joint wastewater and drinking water treatment facilities. In an early draft of the screener survey, which will be used to determine the utilities that will participate in the broader survey, EPA did not seek information on a number of waste streams that could be discharged to POTWs or directly to the environment. Rather, the Agency only sought data on solids while overlooking as many as 15 other waste streams including filter backwash, equipment washdown, and dechlorination. According to EPA, the screener surveys will be sent to treatment facilities serving populations greater than 50,000 and to some facilities serving populations between 10,000 and 50,000. These surveys seek basic technical information and will be used to help define a smaller target population for a more detailed questionnaire. The second, more detailed survey will collect more in-depth information about facility operations and source and wastewater characteristics. The surveys are on EPA’s website (http://www.epa.gov/waterscience/guide/dw/index.htm#data). NACWA plans to comment on both surveys. NACWA’s committee leadership will inform EPA officials at the meeting of the need to look at these additional waste streams.

Air Quality

NACWA Members Eligible for EPA Clean Air Excellence Awards
U.S. EPA is soliciting applications for its sixth annual Clean Air Excellence Awards that are designed to recognize both individuals and organizations that have demonstrated innovation, served as pioneers in their fields, and worked to improve air quality. Both public and private groups are eligible to apply for any of the following categories:

• Clean Air Technology
• Community Development/Redevelopment
• Education/Outreach
• Regulatory/Policy Innovations
• Transportation Efficiency Innovations

NACWA members are encouraged to apply and should submit their entries by August 31. In 2000, the Portland (Ore.) Bureau of Environmental Services won the award in the Clean Air Technology category for being the first west coast POTW to use fuel cell technology to convert anaerobic digester gas into electric power. The Agency installed the fuel cells at its Columbia Boulevard Wastewater Treatment Plant, preventing the annual release of 621 tons of carbon dioxide and reducing methane emissions. Entry forms and information are available on EPA’s website (http://www.epa.gov/air/caaac/clean_award.html) or from Pat Childers in the EPA Office of Air and Radiation at (202) 654-1082 or at childers.pat@epa.gov.

Facility and Collection System

Latest EPA Draft Guideline on Addressing SSOs Gets Attention at NACWA Conference
The latest draft “fact sheet” (http://www.nacwa.org/private/legreg/outreach/2005-06-27draftnpdes.pdf) being circulated by EPA among state water quality regulators on Clean Water Act requirements for addressing SSOs raises questions about EPA’s legal authority to impose seemingly new requirements in the absence of a regulation. At a meeting of the NACWA Facility and Collection System Committee (formerly the Wet Weather Committee), members discussed the latest draft saying it is not much different from the March version and retains an outright prohibition on SSOs. The draft does not establish a collection system standard, an important element for which NACWA continues to advocate. Instead, the draft sets an implicit goal of zero overflows and requires the development of a capacity, management, operation, and maintenance (CMOM) program. Moreover, an Agency decision to regulate discharges from satellite collection systems, as suggested in the latest draft “fact sheet,” could mean about 4,000 additional permits would have to be issued, further burdening state permit writers who already face a significant backlog of expired permits. State officials have expressed an interest in addressing collection systems through a general permit program, but no guidance has been provided on how this may be accomplished. NACWA plans to meet with EPA on the “fact sheet” in late August and believes that while some matters can be addressed through guidance, others require regulation to provide consistency in the management of wet weather issues.

Water Quality

NACWA/WERF Web Seminar to Focus on Use Attainability Analyses Handbook
Mark your calendars to participate in the web seminar being produced by NACWA and the Water Environment Research Foundation (WERF) August 17 on use attainability analyses (UAAs) and how they can be used to help solve complex water quality challenges (http://www.nacwa.org/private/membcomm/memupdate/mu05-12.cfm). The free web seminar will also highlight a new handbook Collaborative Water Quality Solutions: Exploring Use Attainability Analyses to be released this fall by NACWA and WERF on the UAA process. To join in the discussion, please register at http://www.werf.org/Press/webseminars/seminardetails.cfm. The password for NACWA members who do not have a WERF password is “WATERSHED.” Keith Linn, Vice Chair of NACWA’s Water Quality Committee and Environmental Specialist with the Northeast Ohio Regional Sewer District; Thomas Gardner, an Environmental Scientist in the Standards and Health Protection Division of the U.S. EPA Office of Water; Tom Dupuis, Principal Water Resources Engineer with CH2M Hill; and Tim Moore, President of Risk Sciences will speak on the web seminar. NACWA and WERF will host a series of three workshops on UAAs based on the Handbook in the spring of 2006.

White Paper Being Developed to Address Whole Effluent Toxity Permit Requirements
NACWA is working through its Water Quality Committee on a white paper that will address National Pollutant Discharge Elimination System (NPDES) permit requirements for whole effluent toxicity (WET) along with sample permit language (http://www.nacwa.org/private/regalerts/ra05-06.cfm). NACWA feels guidance is needed after a U.S. Court of Appeals for the District of Columbia decision upheld U.S. EPA’s WET test methods despite evidence that they can generate false positive results. Further, U.S. EPA issued draft guidance on WET implementation in December 2004 that NACWA believes is too inflexible to allow for defensible alternatives and lacks a “step-wise” approach to toxicity testing (http://www.nacwa.org/advocacy/comments/2005-03-31AMSACmtsOW-2004-0037.pdf). NACWA will continue to push for a WET program with strong quality assurance principles to generate accurate data that can be used appropriately and effectively. It is not too late for NACWA members to submit information from their permits and their state programs on aspects of WET implementation that work or that are problematic. This information will be used to develop guidance in the white paper. Of particular interest is information on monitoring, determinations of reasonable potential, derivation of permit limits, compliance issues, and Toxicity Identification Evaluation and Toxicity Reduction Evaluations (TIE/TRE). Please submit information to Susan Bruninga, NACWA Manager of Regulatory Affairs, at sbruninga@nacwa.org or via fax at (202) 833-4657.

Utility Management

NACWA Participates in EPA Meeting on Sustainable Management
Several NACWA members shared their experiences and helped brainstorm with senior officials of EPA’s Office of Water on utility management systems and their benefits and challenges. Improving utility management is one of the “four pillars” championed by U.S. EPA as a way to help close the water and wastewater infrastructure funding gap that the Agency estimates is in the hundreds of billions of dollars. The EPA meeting with invited representatives from various wastewater and water utilities addressed asset management; environmental management systems (EMS); capacity, management, operation and maintenance (CMOM) programs; ISO 14000 certification; and the meaning of a “sustainably managed” utility. NACWA member utilities represented at the meeting were the Madison (Wis.) Metropolitan Sewerage District; the City of Eugene (Ore.) Wastewater Division; Columbus (Ga.) Water Works; Albany (Ore.) Department of Public Works; and the Charleston (S.C.) Commission of Public Works. EPA officials said they were not looking to develop a single certification program, but wanted to get a better understanding of the available tools and principles governing sustainable management. Some NACWA members said they found implementation of an EMS improved performance and employee morale, and saved money. However, they said such a system requires a culture change at the facility, accurate performance measures, and should be able to cut across institutional “silos.” At the same time, members said EPA should consider incentives for utilities to adopt more efficient management systems. While NACWA supports the goals of the four pillars and believes such discussions are important, the Association will also continue its fight for more federal infrastructure investment, believing that this is a critical component to address the growing demands placed on municipalities from aging infrastructure and increasing populations as well as more stringent regulatory requirements.