NACWA Regulatory Update May 2005

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to June 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

NACWA Looks to Next Steps on Blending as EPA Withdraws Policy
On May 19, the U.S. Environmental Protection Agency (EPA or Agency) sent a letter to Congress stating that “based on our review of all of the information received, we have no intention of finalizing the blending policy as proposed in November 2003.” On the same day, the U.S. House of Representatives passed an amendment to the EPA budget bill (http://www.nacwa.org/advocacy/co/2005-05-19STUPAK.PDF) stating that no fiscal year 2006 “funds from EPA’s budget may be used to finalize, issue, implement or enforce the proposed [November 2003 EPA blending] policy.” NACWA and a coalition of municipal groups worked hard to ensure that the House amendment was framed as narrowly as possible and does not preclude EPA from working toward a consistent, national policy on blending. Furthermore, as EPA noted in its press release (http://www.nacwa.org/advocacy/co/051905co.cfm), the Agency will “continue to review policy and regulatory options to manage this issue” albeit reiterating the view voiced by EPA officials at NACWA’s May Policy Forum that “blending does not constitute a long-term solution.” These events, in some ways, change the landscape very little. Blending continues to be an acceptable practice that municipalities can use to manage peak wet weather flows. NACWA will continue to advocate the need for blending.

In light of these actions, the Association will be working closely through its active committee structure to develop next steps on the blending issue both in terms of its congressional and regulatory strategies. In the meantime, blending continues to be a legal and viable wet weather treatment practice and NACWA will continue to make this point clear to policymakers and the public. Given recent activity on blending the legal arena will be an area of strategic focus. On June 3, for example, the U.S. Court of Appeals for the D.C. Circuit decided the Pennsylvania Municipal Authorities Association vs. EPA case in favor of the lower court’s dismissal of the case on the grounds that the regions’ anti-blending policies are not final agency actions subject to review. Visit NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/) for the court’s decision on this case.

Biosolids

NACWA and WERF Release Survey Report on Incinerator Emissions Monitors
On May 19, NACWA and the Water Environment Research Foundation (WERF) released a report (http://www.nacwa.org/advocacy/co/2005-05-19ra0505a.pdf) from a recent joint survey effort of Total Hydrocarbon (THC) and Carbon Monoxide (CO) Continuous Emissions Monitoring Systems (CEMS) in use with biosolids incinerators. The survey found that biosolids incinerators are consistently meeting the THC and CO emissions as required by the Part 503 Regulation of the Clean Air Act. The survey revealed that the monitored THC and CO emissions from these facilities are consistently in compliance with the regulatory limits of 100 ppm on an average monthly basis. In fact, survey respondents indicated that their 2003 annual per month average was approximately 27 ppm for THC or 30 ppm for CO. The survey also found, however, that biosolids incinerator operators are struggling with operational and maintenance (O&M) issues with these monitoring systems. NACWA, WERF, and others will work to address the O&M issues discovered by the survey and engage EPA on this front.

The survey was distributed in May 2004 to all of the known wastewater treatment agencies located within the United States that practice biosolids incineration. Robert P. Dominak, Co-Chair of NACWA’s Biosolids Management Committee and Residuals and Air Emissions Manager at the Northeast Ohio Regional Sewer District, Cleveland, Ohio, developed and oversaw the survey in coordination with NACWA and WERF. For more information see Regulatory Alert 05-05 on the NACWA website (http://www.nacwa.org/private/regalerts/ra05-05.cfm) or contact Will Pettit, NACWA, at 202/833-3280 or wpettit@nacwa.org.

Conferences and Meetings

Plan Now to Attend NACWA’s Summer Conference, July 19 – 22, in Hilton Head, S.C.
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. With enforcement driving the train on the management of wet weather flows, many communities are committing millions of dollars to address sanitary sewer overflows without knowing for sure whether they will ultimately be in compliance with a national policy that is years from being developed. Beyond the wet weather arena, the 2005 Summer Conference will also explore broader collection system issues such as maintenance and replacement programs, and issues at the community level such as affordability considerations and long-term planning for infrastructure improvements. Look on NACWA’s website (http://www.nacwa.org/meetings/05summer) for more information on registration and a conference agenda.

Pretreatment

NACWA Scores Victory in Key Effluent Guidelines Case
On May 20, the U.S. District Court for the Northern District of California, relying upon many of NACWA’s legal arguments, dismissed a challenge to EPA’s recent actions under the effluent limitation guidelines (ELG) program brought by several activist groups. As an intervenor in Our Children’s Earth Foundation (OCE) v. EPA, NACWA participated in two dynamic hearings before the California court, most recently on May 11, and overcame the activists’ objection to the Association’s participation in the case. The court held that EPA met all the requirements for the annual ELG review, the ELG biennial report, and ELG five-year limitations review, agreeing that the Agency has broad discretion to determine how it conducts these reviews. The court also held that the Clean Water Act does not require EPA to perform a technological review of all 450 categories and subcategories of ELGs in its biennial reports. The Agency is only required to establish a schedule for its annual review, and to identify new categories and propose schedules for their rule development. The court's discussion relies upon the points that NACWA emphasized in briefs and at oral argument. It is possible that the activist groups will appeal this substantive victory for NACWA and EPA. Should that happen, NACWA’s Board will evaluate further participation by the Association in the case. The court’s decision is posted to NACWA’s Litigation Tracker (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.

June 30 Deadline to Finalize Streamlining Rule Approaches, NACWA Remains Active
NACWA has learned that the long-awaited Pretreatment Streamlining Rule will likely be sent to the Office of Management & Budget (OMB) for their required review in the next week. This news comes as the expected June 30 date for finalization draws near. While the Agency and OMB continue to work toward the June deadline, it is uncertain whether it will be met. The content of the final rule is also uncertain at this point. NACWA hopes that its long history of advocacy on behalf of the rule will result in a meaningful, resource-saving package in the near future. NACWA will alert the membership of any developments and will continue to work with the Agency and OMB in the coming weeks to ensure finalization of the rule. For more information, contact NACWA’s Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or wpettit@nacwa.org.

Security

NACWA Participates in Regional Water Sector Security Workshops
Several NACWA representatives participated recently in the second of three regional Water Sector Security Workshops, held in Philadelphia, Pa., May 10 – 12. The workshops are being hosted by the Water Environment Federation (WEF), through EPA funding, to assist water and wastewater (water sector) utilities and other key stakeholders in determining priority security projects in need of EPA funding. The two-and-a-half day workshop provided attendees with opportunities to identify and prioritize projects needing federal funds. NACWA representatives will also attend the third and final workshop July 6 – 8, in Chicago, Ill. Participation in this workshop is by invitation only. If you have not received an invitation and are interested in attending, you may receive one by sending an email to tcs-events@saic.com. Following the third workshop, WEF and EPA will release a final report, detailing the needs identified and the recommended actions to address them. NACWA will alert the membership when the final report becomes available. Contact NACWA’s Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or wpettit@nacwa.org for more information.

Utility Management

NACWA Provides Municipal Input in International Working Session on Asset Management
In early May, several NACWA members participated in a two-day working session to explore opportunities to enhance national and international collaborative efforts to advance asset management for water and wastewater utilities. The EPA-sponsored working session featured a wide range of stakeholders including representatives from utilities, academia, consulting firms, and regulatory agencies. Twelve nations from around the world were also represented. Specifically, the purpose of the working session was to identify a three to five-year action agenda for the advancement of asset management practices in the water sector and in state and local governments. Attendees separated into numerous breakout sessions to discuss this theme from a variety of perspectives: 1) The Water Sector (particularly the United States); 2) Educational Trainers (universities and professional organizations); 3) Research Agencies (professional and academic); and 4) Regulatory Agencies/Government. From each of these groups arose a list of 10 or more priority needs. At the close of the second day, each attendee voted on all of the top 10 lists to come up with a broad-reaching ranked list of needs relating to asset management, which could be translated into a three to five-year working agenda. These priority lists will be made available to NACWA as part of EPA’s final report on the working session which is expected to be released in the coming weeks. NACWA is committed to staying on the cutting edge of asset management and will remain involved in this and other activities going forward through its Utility Management Committee. Please contact NACWA’s Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or wpettit@nacwa.org for more information.

NACWA Urges All Members to Complete the 2005 Financial Survey by July 8
NACWA mailed its 2005 Financial Survey to all public agency members in April. The Association urges all members to complete the survey by the extended July 8 deadline. The Survey serves as a comprehensive ‘snapshot’ of treatment facilities’ financing and management trends and provides critical information for wastewater treatment agencies to use in determining their respective benchmarks and goals. Refer to Member Update 05-06 (http://www.nacwa.org/private/membcomm/memupdate/mu05-06.cfm) or contact NACWA’s Manager of Regulatory Affairs, Will Pettit, at 202/833-3280 or wpettit@nacwa.org for more information.

Water Quality

NACWA Files Comments on Draft Revisions to Aquatic Life Criteria for Selenium
On May 20, NACWA provided comments (http://www.nacwa.org/advocacy/comments/2005-05-20NACWAseleniumcmt.pdf) on EPA’s draft revisions to the aquatic life criteria for selenium (December 17, 2004; 69 Fed. Reg. 75541). NACWA believes the draft criteria values are more scientifically defensible than the existing values, but does have some concerns with regard to the chronic criterion fish tissue value and how such a value would be implemented. Specifically, NACWA supports the draft acute criteria which acknowledge the differential toxicity of the two dominant species of selenium, selenite and selenate, to aquatic life and include a sulfate correction for the selenate criterion. The new criteria for selenite and selenate are more scientifically defensible than the existing criterion of 20 ug/L. On the other hand, while NACWA believes that the current chronic criterion of 5ug/L in the water column lacks sufficient scientific basis and should be changed, it is concerned with EPA’s methodology for selecting the new fish tissue-based value of 7.91 ug/g and the lack of a clear understanding for how the criterion will be implemented. These issues and more are discussed in NACWA’s May 20 comment effort found on the Association’s website (http://www.nacwa.org/advocacy/comments/2005-05-20NACWAseleniumcmt.pdf).  NACWA will alert the membership of any developments.

NACWA Testifies in NPDES Case on Water Quality and TMDL Issues, Awaits Decision
On April 27, NACWA and the Virginia Association of Municipal Wastewater Agencies (VAMWA) provided testimony before the state court in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). This came after the two groups filed an amicus curiae brief in the case on April 19. NACWA now awaits a ruling from the court. Recognizing that Virginia is in the process of revising nutrient water quality standards (WQS) and developing total maximum daily loads (TMDLs) for the Bay, Onancock’s National Pollutant Discharge Elimination System (NPDES) permit requires the facility to monitor for nutrients, accelerate nutrient removal planning and maximize current nutrient removal capability. In its March 18 opening brief, CBF argued that Onancock’s permit was improperly issued because it did not include specific concentration based limits for nutrients. NACWA’s amicus curiae brief emphasizes that Onancock’s permit properly recognizes that nutrient permit limits should be pound-based and built upon proper WQS and the TMDL. The brief also shows that by allowing these pieces to fall into place first, subsequent facility upgrades will more likely result in measurable water quality improvements. Asserting that CBF’s suit seeks to trump years of focused effort by Bay stakeholders, NACWA’s brief notes that both the WQS and TMDL processes are nearly complete. The brief also references new Virginia legislation creating a Virginia General Permit and trading program for nutrients for the Bay watershed. NACWA will alert the membership of any developments. Visit NACWA’s Litigation Tracker (http://www.nacwa.org/private/littrack/#cbf) or contact NACWA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@nacwa.org for more information.

EPA Establishes FACA to Examine Detection and Quantitation in Water Programs
On May 13, EPA established a Federal Advisory Committee on Detection and Quantitation Approaches and Uses in Clean Water Act Programs. NACWA will be represented on the committee by Jim Pletl, Environmental Scientist, Hampton Roads Sanitation District, Virginia Beach, Va., and Chris Hornback of the NACWA staff. Other wastewater treatment utility representatives will also participate in the committee. The purpose of the committee will be to evaluate and recommend detection and quantitation procedures for use in EPA's analytical methods programs for compliance monitoring under 40 CFR part 136. The committee will analyze and evaluate relevant scientific and statistical approaches, protocols, review data and interpretations of data using current and recommended approaches. The major objectives are to provide advice and recommendations to the EPA Administrator on policy issues related to detection and quantitation and scientific and technical aspects of procedures for detection and quantitation. NACWA will alert the membership of any developments.