NACWA May 2006 Regulatory Update

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to May 12, 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

Appeals Court Rules in TMDL Case that “Daily” Means Daily; NACWA Prepares Response
In a decision that could broadly affect municipalities, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, said the U.S. Environmental Protection Agency (EPA) must enforce daily pollutant load limits under the total maximum daily loads (TMDL) program rather than rely on monthly or annual averages. NACWA filed an amicus brief (http://www.nacwa.org/getfile.cfm?fn=2005-10-26FOEamicus.pdf) in the case and is concerned that if the ruling stands, cities will be forced to pay billions of dollars to ensure that publicly owned treatment works (POTWs) can meet daily limits for certain pollutants, such as nutrients. This could be especially challenging during wet weather. Depending on one’s interpretation, the ruling could also place an added burden on municipalities because they might have to monitor for these contaminants every day.

The environmental activist group Friends of the Earth (FOE) filed the lawsuit saying EPA regulations require that daily limits be established for all pollutants (Friends of the Earth v. EPA, DC Cir., 05-5015). The group argued EPA was required to enforce daily limits, not annual or seasonal averages, for discharges from the District of Columbia Water and Sewer Authority (DC WASA) into the Anacostia River.

In light of this critical court case, NACWA’s Board voted on May 1 to provide funding from the Targeted Action Fund (TAF) for advocacy on all key potential fronts, including : 1) seeking Congressional support to amend the Clean Water Act’s TMDL definition; 2) preparing and filing a petition with EPA seeking to remove certain pollutants, which are unsuitable for daily loads, from the TMDL program; and 3) participating in any rehearing of the case before the full panel of the DC Circuit or seeking review by the U.S. Supreme Court. The Supreme Court option is made possible because the U.S. Court of Appeals for the Second Circuit in New York, took the opposite approach in a similar question posed about the TMDL program.

NACWA’s Legal, Water Quality, and Regulatory Affairs Committees discussed this important decision at meetings preceding the NACWA/Water Environment Federation (WEF) National Clean Water Policy Forum and provided strategic input into NACWA’s next steps.

Benjamin Grumbles, EPA assistant administrator for water, spoke at the Forum on May 2 and said the Agency will look “at whether or not we can respond to the decision in a non-regulatory way, we will look at it to see if we need to revise our regulations on TMDLs, and we will also look at if the best approach is working with Congress on a targeted statutory change.” Several attorneys attending the Forum said they think the decision may not be as problematic or far-reaching as some had expressed. Because of the way waste load allocations are calculated, the resulting daily permit limits may actually be less stringent than they are now for pollutants that currently have annual or seasonal average limits.

Air Quality

Court Deadlines for Air Toxics Rules Include Sludge Incinerators
EPA will have to complete several overdue Clean Air Act (CAA) rules governing air toxics, including one for sewage sludge incinerators (SSIs), on a schedule set by the U.S. District Court for the District of Columbia in a March 31 ruling. NACWA intervened in the 2001 case, Sierra Club v. EPA, because its member could be affected by the rule that applies to SSIs (http://www.nacwa.org/private/littrack/#sierra_club). The Sierra Club sued hoping to convince the court to order EPA to complete the rules, required under CAA Section 112(k) by 2008. CAA Section 112(k) requires technology-based standards for urban sources that emit up to 10 tons per year of hazardous air pollutants (HAPs). A CAA regulation for SSIs will affect NACWA member agencies that incinerate their biosolids.

NACWA has long held that regulating SSIs under the Clean Air Act is unnecessary and not supported by the statute. Further, SSIs already are subject to significant air pollution emission limits, monitoring, and recordkeeping requirements under both the CAA and the Clean Water Act (CWA). NACWA believes that SSIs are not significant contributors of any of the HAPs of concern to EPA in urban areas. In late 2001 EPA contacted NACWA to obtain updated information on SSI emissions of cadmium compounds, one of the urban HAPs of concern. NACWA member agencies found EPA’s SSI cadmium data incorrect by an order of magnitude, and that at least one agency identified by EPA no longer incinerates biosolids.

Despite these arguments, the district court found that EPA failed to perform a mandatory duty under the CAA, and ordered the Agency to sign four of the overdue standards by December 15, 2006; six by June 15, 2007; 10 by December 15, 2007; 10 by June 15, 2008; 10 by December 15, 2008; and any remaining standards by June 15, 2009. The court order notes that a more detailed opinion explaining the reasoning behind its findings will be issued soon. At this time, it remains unclear when EPA would begin work on the SSI rules, although EPA had previously placed this category in its last group with a proposal expected in 2009 and final rule due out at the end of 2010. NACWA will inform the membership as soon as information becomes available on the SSI rulemaking.

Conferences

NACWA Conference in Seattle to Focus on Cross-Cutting CWA, SDWA Challenges
Be sure to register soon for NACWA’s summer conference, Cross-Cutting Clean Water & Drinking Water Issues... Challenging Traditional Boundaries in Seattle on July 18-21. As the title states, the conference will focus on matters of importance to both the clean water and drinking water communities. Issues such as more stringent requirements for pathogens and disinfection byproducts, emerging contaminants, advanced wastewater treatment, and the increased demand for water foster greater challenges in the relationships between drinking water and clean water agencies.

Reserve your hotel room by contacting the Westin Seattle at (206) 728-1000 to guarantee the special conference rate of $189 single/double. Be sure to mention that you are a participant in NACWA’s 2006 Summer Conference & 36th Annual Meeting. The hotel reservation deadline is Monday, June 26, 2006. The agenda and registration information are available online (http://www.nacwa.org/meetings/06summer/).

Facility and Collection Systems

NACWA Options Paper Reignites Discussions on SSOs
NACWA has drafted an “options paper” that provides strategic alternatives for ensuring that EPA re-commence work toward a sanitary sewer overflow (SSO) policy. An overview of the options paper was provide in the Facility and Collection System Committee meeting in Washington, D.C., on April 30. The paper currently is being reviewed by key committee and issue leaders and will be made available to members soon.

The goal of the paper is to help persuade EPA to issue a consistent national rule for addressing SSOs. EPA stated as early as 2001 that it wanted to focus its attention on the issue of “blending,” or peak wet weather flows, before embarking on a plan for SSOs. Now that EPA is close to a final peak wet weather flows policy — the result of the agreement between NACWA and the Natural Resources Defense Council (NRDC) — the Association wants to make clear that an SSO policy remains a top priority for the nation’s POTWs.

The draft options paper lays out five strategic alternatives to address SSOs:

• EPA can formally issue for comment the 2001 proposed SSO regulation that was signed by the outgoing Clinton Administration but never published in the Federal Register by the Bush Administration;
• NACWA can attempt to broker another agreement with environmental activist groups;
• NACWA can pursue action in Congress to insert language in must-pass legislation that requires EPA to act on SSOs or imposes a legislative fix;
• NACWA can put forward its own proposal or “model rule,” including its model regulation crafted in 2004; or
• NACWA can take a wait-and-see approach that lets states develop their own programs.

The FACS Committee made it clear that addressing SSOs continues to be a major priority for NACWA. The Association plans to release its options paper along with an outline of its plans for handling this important issue as soon as possible. It is likely, however, based on the Committee discussions, that the ultimate strategy will involve aspects of several options outlined in the paper.

Pretreatment and Pollution Prevention

NACWA Gains Momentum on Updating 50 POTW Study
The leadership of the Pretreatment and Pollution Prevention Committee has been meeting with EPA officials to discuss updating the 50 POTW study, which is almost 25 years old. EPA has been planning a smaller study of seven or eight facilities this year for the purposes of gathering a “fingerprint” of the types of contaminants entering the headworks at certain POTWs. NACWA has been trying to convince EPA to expand that sampling effort to a broader project that would serve to update the 50 POTW study. Though treatment technologies have vastly improved since 1982, as have methods for detecting contaminants, the data in the 50 POTW Study still serves as the basis, in some cases, for the establishment of local limits and other parameters.

In March, NACWA sent a letter to Mary Smith, head of EPA’s Engineering and Analysis Division, offering (http://www.nacwa.org/getfile.cfm?fn=2006-03-06msmith.pdf) its services in the sampling effort but emphasized that a broader effort was needed. NACWA also expressed its desire that any sampling effort or broader study involve data collection from a representative group of POTWs based on size, treatment technology, and percent of industrial flow. Moreover, the Association recommended that a broader study could be done in a more cost-effective manner if the Agency mined the data that had already been submitted to EPA or the states through various Clean Water Act programs. Significantly, the NACWA Board approved a request that $25,000 in TAF funds be spent for a consultant to analyze this data.

NACWA met with EPA May 2 to further refine ideas for an updated study. EPA has expressed more willingness to conduct a broader study in partnership with NACWA that looks at historical data as well as new data. One option is to have a third-party conduct the analysis with a focus on the Clean Water Act’s priority pollutants while also making note of the “emerging contaminants” entering the headworks that are of particular interest to EPA. The Agency and NACWA are planning to meet in late June to lay out in more details the possible parameters for updating the 50 POTW Study.

Water Quality

NACWA Expresses Concerns on New Method for Measuring E. Coli in Wastewater
NACWA submitted comments May 11 expressing concerns about a new analytical method for measuring concentrations of E. coli in wastewater. EPA announced in April the availability of new data supporting the use of m-ColiBlue24 (http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/E6-5325.htm). EPA proposed to approve a number of new analytical methods for measuring E. coli and other microbiological pollutants in wastewater and biosolids in a notice published in August 2005 (http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-16195.htm). In that proposal, EPA solicited comment on the proposed methods and also solicited information about any additional methods that might be used.

NACWA commented that the results EPA presented in the April notice are “a good, preliminary step, toward determining the suitability of this method.” The Association believes, however, that the study is limited and establishes the precision of the method to measure E.coli only under a very limited set of conditions. For years, NACWA has expressed concern with EPA’s continued pressure on the states to implement the Agency's 1986 bacteria criteria, which rely on E. coli and enterococci as bacterial indicators, due to the lack of approved test methods for these contaminants and will continue to advocate for test methods that can be proven effective over a much more inclusive set of circumstances.