NACWA Regulatory Regulatory Update June 2005

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to July 7, 2005. Unless another contact person is specifically listed, call Chris Hornback, NACWA’s Regulatory Affairs Director, at 202/833-9106 or e-mail him at chornback@nacwa.org with any questions or input you have concerning the Update topics.

Top Stories

Pretreatment Streamlining Rule Sent to OMB for Review, Nears Finalization
The U.S. Environmental Protection Agency’s (EPA or Agency) long-awaited Pretreatment Streamlining Rule was sent to the Office of Management and Budget (OMB) in mid-June for review. NACWA's years of advocacy on behalf of such a rule continues to be instrumental in moving efforts forward. The Association continues to push for improvements to the Agency’s 1999 proposal that would further benefit the environment by allowing wastewater treatment agencies to reallocate savings to other critical areas. Specifically, the Association has urged EPA to include two key provisions addressing equivalent mass limits for concentration limits and a more realistic definition of a non-significant categorical industrial user (http://www.nacwa.org/advocacy/co/2005-03-17PretStrmltr.pdf). NACWA members and staff met with OMB shortly after they received the formal rule package to discuss the Association's positions on these critical resource-saving issues. Through a timely survey, NACWA member agencies provided crucial data that was used to further bolster the Association’s positions. OMB is expected to complete its review quickly, and EPA is expected to finalize the rule within weeks. The Association has not seen the final rule package, but will provide substantive updates to members as soon as additional information becomes available.

NACWA Continues Advocacy on Sanitary Sewer Overflows
NACWA recently obtained a revised April 2005 version of EPA’s ‘fact sheet’ on Clean Water Act permit requirements for sanitary sewer overflows (SSOs) (http://www.nacwa.org/private/legreg/outreach/2005-06-27draftnpdes.pdf) and will discus the Association’s next steps at the upcoming Facility and Collection System Committee (formerly the Wet Weather Issues Committee) meeting during NACWA’s 2005 Summer Conference in Hilton Head, South Carolina. While not significantly different from the March 2005 version, this new draft signals a continuing effort by EPA to assert additional authority over clean water agencies and collection system owners without making any regulatory changes. Specifically, the fact sheet indicates that National Pollutant Discharge Elimination System (NPDES) permit writers should be including provisions requiring reporting and recordkeeping of overflow events, the establishment of capacity, management, operation, and maintenance (CMOM) programs, and the development of system evaluation and capacity assurance plans in the permits they issue to clean water agencies. Furthermore, EPA asserts that permit writers should be issuing permits to municipal collection system owners or operators, including satellite collection systems that have not previously received such permits, where those collection systems have the potential to discharge into waters of the United States.

EPA is circulating the fact sheet among the states along with a companion document outlining model NPDES permit language (http://www.nacwa.org/private/legreg/outreach/2005-05-01npdesso.pdf), which notably defines ‘overflow’ for the purposes of reporting to include building/basement backups that do not reach waters of the United States. EPA officials have suggested that the fact sheet only constitutes an attempt to reaffirm those requirements that are already clearly mandated in existing law and regulations and that they are still considering regulatory changes as necessary.

NACWA continues to work on additional advocacy tools for its members in the area of SSOs. The Association has added a new page to its website to highlight these tools, including the recently completed 50-state survey of SSO requirements (http://www.nacwa.org/private/ssoadv.cfm). The Association’s Wet Weather Survey, Capacity Setting Matrix, and SSO Legal Issues White Paper can all be accessed through this new page.

Conferences and Meetings

It’s Not Too Late…Register Now to Attend NACWA’s Summer Conference
Join your clean water colleagues at the Westin in Hilton Head, S.C., July 19 – 22, for NACWA’s annual Summer Conference. This year’s conference, Wastewater Conveyance and Treatment…Navigating an Uncertain Regulatory Environment, will examine how the nation’s municipalities continue to make steady progress toward meeting the goals of the Clean Water Act despite the lack of clear national guidance on several key issues. The ability of our nation’s municipalities to pay for the ever-increasing demands being placed on them has become a focal point in the national debate over controlling wet weather discharges. Several panel discussions will explore the affordability issue and provide case studies on how communities are stretching their financial capabilities to implement overflow control programs. NACWA’s Financial Capability and Affordability in Wet Weather Negotiations white paper will be highlighted and several case studies from the paper will illustrate how affordability considerations can be incorporated into wet weather control programs. Look on NACWA’s website (http://www.nacwa.org/meetings/05summer) for registration information and an updated agenda.

Facility and Collection System

NACWA Continues to Outline Next Steps on Blending
Despite EPA’s withdrawal of its proposed blending policy, the Agency has committed to continue reviewing policy and regulatory options for blending and NACWA is laying out its next steps to ensure a continued dialogue on this key issue. On June 24, leaders from NACWA’s Facility and Collection System, Regulatory Policy, and Legislative Policy Committees met via conference call to discuss the Association’s next steps. The Facility and Collection System Committee will engage in a lively discussion on blending during its meeting in Hilton Head in conjunction with NACWA’s Summer Conference. EPA’s Kevin Weiss and the Natural Resources Defense Council’s (NRDC) Nancy Stoner are part of a roundtable discussion on wet weather issues, including blending, at the Summer Conference. The panel will help frame the blending debate and seek to find some common ground for moving forward with a national policy.

Pretreatment

NACWA Evaluates Involvement in Appeal of Key Effluent Guidelines Case
On June 24, Our Children’s Earth Foundation (OCEF) appealed to the U.S. Court of Appeals for the Ninth Circuit the May 20 decision of the U.S. District Court for the Northern District of California upholding EPA’s recent actions under the effluent limitation guidelines (ELG) program. As an intervenor on behalf of EPA, NACWA participated in two dynamic hearings before the California court. The lower court relied on many of NACWA’s legal arguments to dismiss the OCEF’s challenge. The court held that EPA met all the requirements for the annual ELG review, the ELG biennial report, and five-year ELG reviews, and that EPA has broad discretion in how it conducts these reviews. The court also held that the CWA does not require EPA to perform a technical review of all 450 categories and subcategories of ELGs in its biennial reports. Rather, EPA is required to establish a schedule for its annual review, to identify new categories, and to propose schedules for new rule development. Now that the case has been appealed, NACWA’s Board of Directors will evaluate further NACWA participation in the case during its July meeting. The U.S. District Court’s decision is posted to the Litigation Tracker section of NACWA’s website (http://www.nacwa.org/private/littrack/). For more information on the case, contact NACWA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@nacwa.org.

Security

Anthrax Protocol Poised for Publication in National Response Team Guidance
After more than three years of effort from NACWA, its members, and the U.S. Environmental Protection Agency (EPA), the National Response Team, comprised of 16 federal agencies with emergency management responsibilities, is poised to include the Anthrax Protocol in its Technical Assistance for Anthrax Response guidance. Following the anthrax attacks in the fall of 2001, wastewater utilities in Florida, Washington D.C., and New York were faced with managing decontamination wastewater generated during the cleanups of several anthrax contaminated buildings. These communities were looking for guidance from EPA on whether they should allow the discharge of the decontamination wastewater to their collection systems and if so, under what conditions should they accept the wastewater. With the leadership of the NACWA Pretreatment and Hazardous Waste Committee and officials from the City of Boca Raton, Florida, NACWA initiated a dialogue with EPA on the issue and was instrumental in the drafting of the protocol. Based on the response taken by the City of Boca Raton, the protocol serves as a guide for wastewater utilities and first responders on establishing communication, proper handling of containerized decontamination wastewater, pretreatment of the wastewater prior to discharge, and the conditions under which discharge to the sewer system can take place. The sensitive subject matter and the groundbreaking nature of the effort resulted in multiple levels of review by several federal agencies and ultimately delayed the release of the protocol. NACWA is making a pre-publication version of the protocol available to its members (http://www.nacwa.org/private/legreg/outreach/2005-07Anthrax.pdf). The protocol served as the foundation for the Association’s broader guidance, Planning for Decontamination Wastewater: A Guide for Utilities, which should be available to members in August.

Water Quality

NACWA, Key Water Quality Stakeholders Meet With OMB on Methylmercury Guidance
On June 6, NACWA staff and key industry stakeholders met with officials at the Office of Management and Budget (OMB) to discuss EPA’s pending guidance on implementation of the Agency’s fish tissue-based human health criterion for methylmercury. The guidance is expected to discuss a wide range of options available to states for implementing the criterion. NACWA and other stakeholders have expressed concern that without adequate guidance, states will simply convert the fish tissue value to a water column number using a bioaccumulation factor for ease of implementation and permitting. The purpose of the meeting was to urge OMB to complete its review so EPA can release the guidance for public comment. EPA is expected to provide the draft guidance, once OMB review is complete, to a workgroup of state regulators for their review before releasing the document for public comment. NACWA’s Mercury Workgroup is prepared to review and comment on the guidance as soon as it becomes available.

NACWA Represents Municipalities at FACA Meeting on Clean Water Act Programs
NACWA was well represented at the first meeting of the Federal Advisory Committee on Detection and Quantitation Approaches and Uses in Clean Water Act Programs June 21 and 22 in Alexandria, Va. The Federal Advisory Committee was formed by EPA at the urging of a broad range of stakeholders, including industry, municipalities, and environmental labs, to find better procedures for developing detection and quantitation limits for analytical test methods. The Committee is chaired by Mary Smith, Director of EPA's Engineering and Analysis Division.

The levels at which a test method can detect the presence of a pollutant and reliably quantify the amount of that pollutant present are not fixed values. Laboratories currently develop these values using EPA procedures that do not adequately account for uncertainty and that most stakeholders have agreed simply do not work. The first meeting focused on identifying areas of interest for the process as well as the formation of a Technical Workgroup, which will be responsible for assessing the various options available for determining detection and quantitation limits and providing recommendations for the Committee's consideration. The Committee also worked to develop evaluation criteria for comparing the existing alternatives and an initial charge to the Workgroup to begin its review. The next Committee meeting will be September 29 and 30, and will focus on the pros and cons of the different approaches outlined at the first meeting.