NACWA June 2006 Regulatory Update

Click here for previous updates.

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to June 8, 2006. Please contact Chris Hornback, NACWA Director of Regulatory Affairs at 202/833-9106 or chornback@nacwa.org, with any questions or information on the Update topics.

Top Stories

NACWA Meets with EPA on D.C. Circuit’s “Daily Loads” Ruling
NACWA staff, leaders of its Water Quality Committee, and members of the Federal Water Quality Coalition (FWQC) met with representatives of the U.S. Environmental Protection Agency (EPA) to discuss an appropriate response to a ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that pollutant loadings in total maximum daily loads (TMDLs) must be expressed as daily calculations. Rather than appealing the decision to the full Court of Appeals or the U.S. Supreme Court, EPA seems poised to prepare a memo by the end of the June recommending that all states and EPA regional offices incorporate daily expressions of the pollutant loadings in any TMDLs they develop. While EPA managers must still approve this course of action, the Agency plans to follow up with a more in-depth document in a few months on how to develop these daily expressions.

EPA acknowledged that simply dividing an annual load by 365, for example, to calculate a daily expression is not their intent, and indicated that they will provide information on available statistical procedures for developing meaningful daily expressions. EPA’s proposed approach seems to provide significant flexibility to permit writers to assign permit limits that make sense for implementation (e.g., monthly or annual loadings), but may ultimately lead to another legal challenge from the environmental community.

EPA also does not seem interested in pursuing action to resolve the case with Congress or through a formal rulemaking. However, the D.C. Water and Sewer Authority (DC WASA), a party in the Friends of the Earth v. EPA case that led to the decision, has until June 9 to decide whether to seek a rehearing or petition the Supreme Court. All indications are that DC WASA will not seek appeal either, although they have until June 9 to do so. NACWA’s next steps will be based largely on how EPA decides to handle the matter. To ensure that the voice of clean water agencies is clearly heard on this matter, NACWA’s Board voted at its May meeting to provide funding from the Targeted Action Fund (TAF) for advocacy on all potential fronts – regulatory, legal, Congressional – of the TMDL issue.

WERF Reports on Findings of Higher Coliform Counts in Some Dewatered Sludge Samples
The Water Environment Research Foundation (WERF) published a report June 5 entitled Examination of Reactivation and Regrowth of Fecal Coliforms in Centrifuge Dewatered, Anaerobically Digested Sludges, detailing the results from the first phase of a research effort undertaken in response to reports of increases in fecal coliform counts in dewatered sludge at a handful of wastewater treatment plants. Though the study is limited in its scope and additional research is needed to further understand the issue, the researchers did find elevated levels of fecal coliform bacteria in centrifuge cake samples at four of the seven facilities, all of which were sampled multiple times as part of the WERF study. See NACWA Regulatory Alert 06-03 for more information (http://www.nacwa.org/private/regalerts/ra06-03.cfm).

NACWA is recommending that its members review the study carefully and consider undertaking additional testing to determine whether this phenomenon is occurring at their facilities. At some of the study facilities, levels of fecal coliforms did exceed regulatory targets. NACWA members are encouraged to review the Part 503 requirements for pathogen reduction to ensure compliance with the Clean Water Act (CWA) [a brief summary of these steps is included in the Alert].

EPA Seeks Facilities to Participate in Updated National Sewage Sludge Survey
NACWA member agencies and other publicly owned treatment works (POTWs) received letters recently asking that they participate in the 2006 Targeted National Sewage Sludge Survey (http://www.nacwa.org/getfile.cfm?fn=2006-05fac_ltr.pdf). Sampling at these facilities could begin as early as July with EPA seeking to analyze for an extensive list of emerging contaminants, including antibiotics and other pharmaceuticals, steroids and hormones, and polybrominated diphenyl ethers (PBDEs). The Agency hopes to collect samples from 80 facilities and also wants to provide samples to two universities and the American Chemistry Council (ACC) to characterize the range of concentrations of Triclocarban (TCC) or phthalates that may be found in sewage sludge.

The survey is part of EPA’s effort to evaluate its Standards for Use or Disposal of Sewage Sludge under the Part 503 regulations of the CWA, which are based in part on surveys from 1989 and 2001. At the end of 2003, EPA responded to a report by the National Research Council (NRC) on land-applied biosolids (68 Fed. Reg. 75531). While the Agency’s conclusions were in line with NACWA’s comments (http://www.nacwa.org/getfile.cfm?fn=2003-07-08cmts.pdf) that land application is an appropriate management option for biosolids, EPA’s review of Part 503 identified 15 pollutants for further investigation. This new targeted survey is, in part, designed to collect updated information on the presence of a subset of the 15 pollutants identified in 2003. NACWA plans to track this survey effort carefully to ensure the information is used appropriately and plans to review any methodology EPA may use to determine if further regulation of biosolids is warranted.

Conferences

Hotel Rooms Are Filling Up Fast . . .Register Today for NACWA’s Summer Conference!
Register today for NACWA’s 2006 Summer Conference and 36th Annual Meeting, Cross-Cutting Clean Water & Drinking Water Issues…Challenging Traditional Boundaries, July 18-21, in Seattle, Wash. The program, developed in cooperation with the American Water Works Association (AWWA), the Association of Metropolitan Water Agencies (AMWA), and the Water Environment Federation (WEF), will inform utility leaders about the challenges clean water and drinking water agencies face and foster additional cooperation, with the goal of preventing future conflicts. We anticipate a high level of attendance at this meeting and expect that our room block will sell out prior to the June 26 cut-off date. Call the Westin Seattle at (206) 728-1000 to make your hotel reservations today! Also, visit NACWA’s Conferences and Meetings webpage (http://www.nacwa.org/meetings/06summer/) for updated agenda information and to register for the 2006 Summer Conference and 36th Annual Meeting.

Join NACWA, WERF for a Cutting-Edge Web Seminar on Use Attainability Analyses
Join NACWA and WERF for the Use Attainability Analyses: Beyond the Basics Web Seminar Series, June 28 and July 12 from 2:00-3:30 p.m. eastern time. This unique series, based on the joint NACWA/WERF Collaborative Water Quality Solutions: Exploring Use Attainability Analyses publication, will give your staff an opportunity to learn more about a key clean water issue without the expense or time required for travel. Visit NACWA’s Conferences and Meetings webpage (http://www.nacwa.org/meetings/06uaa) for a listing of UAA topics to be covered and for registration information.

Facility and Collection Systems

CSO Workshop a Success; NACWA Continues Work on Blending, Affordability
The CSO Workshop sponsored by NACWA and the Wet Weather Partnership held June 1-2 in Chicago continued its tradition of providing important information for NACWA member agencies. Among the Workshop’s highlights were the comments by Benjamin Grumbles, EPA Assistant Administrator for Water, who discussed EPA’s wet weather priorities. Grumbles stated that EPA is close to releasing the final peak excess flow policy, which is based on an agreement forged by NACWA and the Natural Resources Defense Council (NRDC). The Agency still has some minor details to iron out. In the meantime, NACWA is working on a “Frequently Asked Questions” document that the Association plans to ask EPA to consider releasing when the final policy is ready.

Grumbles reiterated his commitment to further promote coordination between Headquarters, Regions, States and enforcement officials on wet weather issues. Significantly, he stated that “the UAA [use attainability analysis] process requires a lot more attention” and is “absolutely critical.” EPA is also working with the Internal Revenue Service (IRS) and Treasury Department to remove barriers to, and provide incentives for, the financing of municipal infrastructure projects — an effort that NACWA will monitor closely to ensure it accounts for the interests of the Nation’s clean water agencies.

Demonstrating the continued vitality of the Association’s Targeted Action Fund (TAF), NACWA’s white paper, Financial Capability and Affordability in Wet Weather Negotiations, (http://www.nacwa.org/getfile.cfm?fn=2005-10NACWAWhitePprFinCapAff.pdf) was also a significant part of a discussion on affordability at the CSO Workshop. Grumbles said the paper is playing an important role in the Agency’s effort to develop an action plan for improving how it approaches affordability issues when dealing with wet weather. NACWA has begun the process of developing a follow-up document to the white paper to provide additional guidance for EPA as it considers updating its 1997 “Combined Sewer Overflows–Guidance for Financial Capability Assessment and Schedule of Development.” NACWA will continue to advocate on behalf of sound affordability criteria that fully account for the complete nature of local budgetary constraints.

NACWA Testifies in Support of ORSANCO’s Proposed Wet Weather Standards
NACWA testified in May before the Ohio River Valley Sanitation Commission (ORSANCO) in support of its plan to adopt wet weather standards for the Ohio River (http://www.nacwa.org/getfile.cfm?fn=2006-05-26ORSANCO.pdf).  The Association testified that wet weather standards, such as those proposed by ORSANCO, are important to help meet the goals of the CWA and the Combined Sewer Overflow (CSO) Policy.

NACWA emphasized that the proposed wet weather standards: 1) allow all communities along the Ohio River basin to meet appropriate bacteria standards in a practical and cost effective manner; 2) put CSO discharges in perspective with other sources of bacteria; and 3) properly acknowledge that there are times when river flows make it unsuitable for primary contact recreational use. NACWA pointed out that the wet weather standards protect public health while ensuring that wastewater treatment control measures result in meaningful water quality improvements. NACWA’s testimony also reiterated the challenges municipalities face from reduced federal and state funding for water quality improvements and the need for a renewed federal-state-local investment in meeting the goals of the CWA. NACWA member agencies and other POTWs in the Ohio River basin have already committed billions of dollars to control CSOs and are in the process of developing and implementing long-term control plans (LTCPs) to address the problem. If ORSANCO’s proposed wet weather standards are not approved, it could discourage similar efforts. NACWA will be working with key members to ensure wet weather water quality standards remain a viable option for such communities.

Pretreatment and Pollution Prevention

Planning for October 4-6 Pretreatment Workshop in New Orleans Moving Forward
NACWA has begun planning its 2006 Pretreatment and Pollution Prevention Workshop scheduled for October 4-6 in New Orleans. Several committee members have agreed to participate in the planning, and preliminary agenda items include partnership opportunities for addressing emerging contaminants, implementation issues associated with the pretreatment streamlining rule, NACWA’s work with EPA on an updated 50 POTW study, and progress on the effluent limitation guideline for drinking water residuals. Watch NACWA’s website (http://www.nacwa.org/meetings/) for more details on the workshop as they become available. Please contact NACWA if you are interested in helping plan the workshop or have suggestions for agenda topics.

EPA Releases Fact Sheet on Mandatory Changes in Streamlining Rule
EPA has made available a fact sheet detailing 13 mandatory changes for states and/or POTWs that must be made to comply with the provisions of the new Pretreatment Streamlining Rule (http://www.epa.gov/npdes/pubs/pretreatment_streamlining_required_changes.pdf). While EPA recommended the changes be made as soon as possible, one new provision calling for POTWs to evaluate their significant industrial users (SIUs) to determine the need for a slug control plan or other action must be conducted by October 14, 2006, (or one year after the promulgation date of the rule).

NACWA, which worked for more than 10 years through its Pretreatment and Pollution Prevention Committee to get EPA to issue the streamlining rule, identified the required changes in its October 7, 2005, Regulatory Alert announcing the rule (http://www.nacwa.org/private/regalerts/ra05-10.cfm). The new fact sheet, however, provides additional details on these changes. NACWA will continue to keep members updated about new developments involving the implementation of this important rule.

Water Quality

NRDC Announces Intention to Sue EPA For Missing BEACH Act Deadlines
NRDC filed a 60-day notice of intent to sue EPA for missing deadlines under the Beach Environmental Assessment, Cleanup, and Health (BEACH) Act. The Agency is required under the 2000 law to study illnesses caused by bacteria and other pathogens in coastal waters. The Agency also was required to set water quality criteria for bacteria by October 2005 that would be protective of vulnerable populations. While EPA has made some progress on its BEACH Act mandates, including the promulgation of bacteria criteria for 21 states (see RA 04-18 at http://www.nacwa.org/private/regalerts/ra04-18.cfm), the Agency has or will likely miss several other deadlines. NACWA is considering potential advantages to joining this lawsuit as an amicus with EPA and will continue to work with the Agency on viable approaches for setting reasonable water quality standards that are protective of public health and the environment.

NACWA Comments on Methods for Measuring Bacteria
In another effort focused on bacteria-related issues, NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-05-11OW.pdf) May 11 on EPA’s notice of data availability regarding the Agency’s Results of the Validation of m-ColiBlue24 Media for Enumeration of E. coli in Wastewater Effluent (April 11, 2006; 71 Fed. Reg. 18329). The Association said EPA’s effort to validate this new method for measuring bacteria levels in wastewater is a good first step, but said a “customary EPA validation approach” should be used to address inter-laboratory variability, acceptance criteria, holding time variability, and other factors.

NACWA identified several other concerns with the method, including that the concentrations measured during validation were of limited value to POTW operators; only one laboratory was used to process every sample; the broad geographic distribution of the POTWs involved meant excessive holding times; and the colony counts were below an ideal range. NACWA continues to follow EPA’s efforts to approve test methods for evaluating E. coli and enterococci in wastewater.

EPA Proposes to Exclude Water Transfers from Permit Requirements; NACWA to Comment
NACWA plans to submit comments on an EPA proposed rule published in the June 7 Federal Register (71 Fed. Reg. 32,887) that would exclude water transfers from National Pollutant Discharge Elimination System (NPDES) permitting requirements. Specifically, the proposal would define water transfers as activities that convey one water of the United States to another without subjecting that water to intervening industrial, municipal, or commercial use. NACWA welcomes the proposal and believes the development will help the Association’s legal effort in the Catskill Mountains Chapter of Trout Unlimited v. City of New York case to have water transfers excluded from NPDES permitting requirements in New York City. NACWA led a municipal coalition in filing an amicus brief asserting that interbasin water transfers should not be subject to NPDES permitting requirements because it would be inconsistent with the Clean Water Act and would overwhelm an already backlogged permitting program. NACWA is soliciting comments from its public member agencies on this important rulemaking. The comment deadline is July 24.

NACWA Seeks Assurances from EPA on Mixing Zones in Northwest
NACWA and representatives from the pulp and paper industry asked top EPA officials in May to issue an interpretive statement affirming the Agency’s position that the CWA authorizes mixing zones. The issue has intensified in Oregon where environmental activists have sued EPA Region 10 demanding that mixing zones be banned in that state. Benjamin Grumbles, the EPA Assistant Administrator for Water, said the Agency continues to believe the CWA provides for mixing zones, but reiterated that states ultimately have the discretion of whether to allow them. For years now, environmental activists have sought to extend nationwide a ban that is currently in place on mixing zones for bioaccumulative chemicals in the Great Lakes.

Meanwhile, environmental activists filed a 60-day notice of intent to sue EPA Region 10 in Seattle challenging the Agency’s approval of Washington State’s NPDES permit program. The activists, whose suit would be filed in mid-June if they decide to pursue it, argue that Washington’s permit program causes violations of the Endangered Species Act, partly because of toxic releases allowed in mixing zones. NACWA will continue to partner with its members in Washington and Oregon to help respond effectively to challenges seeking to eliminate mixing zones.

Utility Management

NACWA Comments on Standards for Financial Reporting
The applicability of Government Accounting Standards Board (GASB) draft Accounting and Financial Reporting for Pollution Remediation Obligations standards to costs POTWs incur in conducting their core business of treating wastewater is unclear, NACWA said in its May 19 comments to the Board (http://www.nacwa.org/getfile.cfm?fn=2006-05-19GASB.pdf). While it was not the intention of the draft GASB standards to include such costs, NACWA identified two situations where POTWs may be covered absent clarifying provisions: when new treatment technologies are installed to meet permit requirements associated with a TMDL and when LTCPs are developed as part of a consent decree to address CSOs.

Although GASB officials have assured NACWA that these scenarios would not be covered under the draft, NACWA is requesting written clarification on the matter. In addition, the draft provides that the standards apply when “the government is compelled to take remediation action because pollution creates an imminent endangerment to public health or welfare or the environment, leaving it little or no discretion to avoid remediation action.” NACWA believes a POTW could be covered under this provision in a situation involving a sanitary sewer overflow (SSO) that affects a private property owner if the municipality has a policy of working with the owner to resolve the problem. “In these cases property owner(s) can make potential claims for property damage and/or health impacts (mold, other claims). Given the fact that the contamination event and subsequent cleanup may take place over a short time period, it seems unlikely that a POTW would ever have an outstanding obligation to clean up the ‘existing’ pollution. Still, a POTW may not know when or if any future claims may arise from such incidents, and therefore would not know how to report these potential obligations under the Draft Standard,” the NACWA comments said. NACWA will inform members of any additional response from GASB as they finalize these standards.