NACWA November 2006 Regulatory Update

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 8, 2006. Please contact NACWA’s Chris Hornback at 202/833-9106 or chornback@nacwa.org or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org with any questions or information on the Update topics.

Top Stories

Court Rules in Favor of NACWA Member in Key Biosolids Case
The U.S. District Court for the Central District of California recently rejected a request from Kern County, California to dismiss a lawsuit by three Southern California NACWA members challenging the county’s ban on the land application of biosolids. The case is critical to the nation’s clean water utilities because if it does not succeed, it could set a dangerous precedent and potentially open the door to similar actions by other counties. The U.S. District Court also ruled that the City of Los Angeles and its co-plaintiffs were entitled to bring the suit in Los Angeles because the effects of the Kern County ban would be felt by government agencies in the Los Angeles area, thus ending attempts by Kern County to move the case to a different federal court district in Fresno. The City will also be allowed to proceed with two federal constitutional challenges and two state law challenges in an effort to overturn the ban. The court ruling also clears the way for a motion by the City to ask the court to stay the ban, which passed in June by referendum and which is scheduled to take effect in early 2007. NACWA has supported the City of Los Angeles’ legal efforts, including via a press release (http://www.nacwa.org/advocacy/releases/081506.cfm) backing the city’s suit.

In a related biosolids issue, NACWA met with member utilities in Florida and their state Department of Environmental Protection (DEP) regarding another challenge, this time regulatory, to their ability to land apply. NACWA member utilities believe that the strict regulations required by the DEP’s draft biosolids rule would effectively ban land application of biosolids. At the Florida meeting, NACWA emphasized that land application must remain a viable option for biosolids and that state regulations must be supported by sound science, as explained in the Association’s earlier letter to the DEP (http://www.nacwa.org/getfile.cfm?fn=2006-09-29fladep.pdf). NACWA will continue to follow the legal and regulatory actions regarding biosolids and keep members informed about new developments.

Conferences and Meetings

Register Now for NACWA’s 2006 Clean Water Law Seminar
It’s not too late to register for NACWA’s 2006 Developments in Clean Water Law: A Seminar for Public Agency Attorneys & Managers, scheduled for November 15-17 at the Sheraton Boston Hotel in Boston. Seminar panels will cover a variety of clean water legal issues, including defensive tools of clean water agencies against environmental and citizen lawsuits, such as the traditional permit shield defense as well as new, innovative
defenses; ways for in-house and outside counsel to work together to achieve the best legal results for clean water agencies; and how regional facilities have worked with satellite systems to make environmental progress. Other topics will include citizen suit trends, management of electronic information, and water quality models for public agencies. Professor Jody Freeman, Director of the Harvard Law School Environmental Law Program, will keynote the 2006 Seminar. Continuing Legal Education (CLE) credits will be available. Registration and agenda information is available on NACWA’s website (http://www.nacwa.org/meetings/06law/). Please contact NACWA’s Nirah Forman at 202/833-8418 or nforman@nacwa.org if you have trouble securing a room reservation.

NACWA Discusses Municipal Issues at Meeting with Key EPA Officials
On October 31, NACWA staff and representatives from other municipal stakeholder organizations met with EPA officials, including Jim Hanlon, Director of the Office of Wastewater Management, and Elaine Brenner, Associate Director of the Water Permits Division, to discuss regulatory and legal issues that could affect municipalities and clean water agencies. Wet weather topics were addressed, and EPA reiterated that they expect the proposed peak flow policy to be issued by the end of the year (see article below), once the policy is approved by the White House Office of Management and Budget (OMB). The status of legal actions regarding total maximum daily loads (TMDLs) was also discussed. NACWA previously met with EPA officials to discuss the agency’s potential involvement (see article below).

EPA took the opportunity at this meeting to encourage more NACWA members to seek admission to its Performance Track program. Admission requires an excellent performance record, an environmental management system (EMS) for the entire facility, and a three-year commitment to environmental improvement in areas such as energy use, air emissions, or discharges to water. In return, POTWs receive regulatory incentives, including designation as a low priority for routine EPA inspections and potential expedited permitting. The Kent County Regional Wastewater Treatment Facility in Delaware recently became only the second publicly owned treatment work (POTW) to be admitted to the program, which currently has over 450 public and private participant agencies. The City of Eugene Wastewater Division in Oregon, a NACWA member, was the first POTW admitted. More information about the Performance Track program may be found on EPA’s website (http://www.epa.gov/performancetrack/index.htm). NACWA will continue to gather more information about the Performance Track program and work with members who are interested in joining it.

EPA also used this meeting to present information about its WaterSense program (http://www.epa.gov/watersense/), a voluntary program to reduce unnecessary water consumption by increasing the use of water-efficient products and services. The WaterSense program may eventually affect clean water agencies by reducing the quantity and quality of wastewater requiring treatment, leading to changes in utility management. For example, WaterSense specifications for high-efficiency toilets (less than 1.3 gallons per flush) are expected in April or May of 2007. In addition, the WaterSense Promotional Partners program, which will help utilities encourage water efficiency in their communities and potentially reduce their own costs, is expected to be approved by OMB in about a month. EPA is looking for utilities to join this program. Much of the focus regarding this program is on drinking water and irrigation practices, but there could be a significant impact on wastewater utilities as this program progresses. NACWA will keep members informed about the WaterSense program and its potential impacts on clean water agencies.

Facility and Collection Systems

NACWA Efforts Lead to EPA Letter of Support for ORSANCO
NACWA and the Ohio River Valley Water Sanitation Commission (ORSANCO) received a letter (http://www.nacwa.org/getfile.cfm?fn=2006-10-12orsancoepa.pdf) from Benjamin Grumbles, EPA Assistant Administrator for Water, expressing support for the efforts of ORSANCO to develop new wet weather water quality standards. The letter resulted from an August meeting that NACWA and ORSANCO had with Grumbles and from subsequent communication between NACWA and EPA staff. In the letter, Grumbles stated that “EPA believes…the establishment of wet weather standards is essential to achieving the ultimate goals of the Clean Water Act and the 1994 CSO Policy.” He also commended ORSANCO for its efforts, and pledged that EPA “will continue to work with ORSANCO’s workgroups and committees to facilitate the successful development of wet weather standards.” NACWA will continue to encourage EPA to support the efforts of clean water agencies, such as ORSANCO, that are addressing wet weather issues.

EPA Responds to NACWA Request for Sanitary Sewer Overflow Policy
NACWA received a response to its September letter (http://www.nacwa.org/getfile.cfm?fn=SSOLetter.pdf) to Benjamin Grumbles, EPA Assistant Administrator for Water, requesting that EPA commit significant resources to establish a national policy for sanitary sewer overflows (SSOs). In his response, Grumbles stated again that EPA’s “priority is to first complete the Peak Flow Policy and then focus on the issue of SSOs.” Grumbles also wrote, “When our attention turns to SSOs, we look forward to working with you on this important and complex issue.” In the September letter, NACWA had expressed its intention to formally petition the agency for an SSO rulemaking if EPA did not commit significant resources to forming an SSO policy. With final approval of the peak flow policy expected later this year (see article below), NACWA staff and leaders of the Facilities and Collection Systems Committee are discussing options for proceeding with SSO policy efforts.

Peak Flows Policy Expected by Year’s End
Jim Hanlon, director of the EPA Office of Wastewater Management, updated attendees of NACWA’s Hot Topics Breakfast at WEFTEC '06 in Dallas on the status of the peak wet weather flow policy. He indicated that although the policy has been at the White House Office of Management and Budget (OMB) for three months, he expects that it should be released in final form within six weeks. NACWA and the Natural Resources Defense Council (NRDC) sent a joint letter (http://www.nacwa.org/getfile.cfm?fn=2006-11-02ombltr.pdf) to OMB urging approval of the peak flows policy. “Adoption of this policy,” the letter stated, “would enable this Administration to demonstrate its commitment to working with multiple stakeholders from widely divergent perspectives to find middle ground positions that move us forward to improved water quality and environmental protection.”

In ongoing efforts to prepare for finalization of the guidance, NACWA and NRDC sent a memo (http://www.nacwa.org/getfile.cfm?fn=2006-10-05nrdcnacwa.pdf) to Benjamin Grumbles, EPA Assistant Administrator for Water, supporting the proposed peak wet weather flow guidance and thanking the agency for its work on the policy. NACWA and NRDC wrote that they will “support [EPA’s] efforts to ensure that all stakeholders who will be implementing this policy have the information to make it successful.” To help stakeholders successfully implement the new policy, NACWA and NRDC requested that EPA develop and distribute Fact Sheets about available technologies and techniques for reducing, eliminating, or providing supplemental treatment to peak flow diversions. NACWA and NRDC also suggested that EPA develop a “Frequently Asked Questions & Answers” document and offer training to affected entities about how to implement the new policy. NACWA will keep its members updated on the status of the proposed peak flows policy.

Water Quality

EPA’s 2008 Listing Guidance for Impaired Waters Creates New Mercury Category
EPA’s new listing guidance (http://www.nacwa.org/getfile.cfm?fn=2006-10-12epa.pdf) was developed to provide states developing their lists of impaired waters with additional information on key issues that arose during the 2006 listing cycle. Rather than redo the entire listing guidance, the 2008 document is a brief memo that only updates those elements that have changed. The release of the document roughly 18 months before the next state lists must be submitted to EPA will provide states with additional time to develop more meaningful lists. NACWA members may find several elements of the new guidance helpful if they are discharging to mercury-impaired waters. Specifically, the document creates a new 5(m) category that provides states with an additional approach for listing waters impaired by the air deposition of mercury. While the new 5(m) category requires development of a TMDL, it also acknowledges the complexity of dealing with mercury and allows the state more time to develop the TMDL, which in turn will give other controls for mercury time to have an effect.

The new listing guidance also provides additional information on the use of category 4(b). Unlike the new 5(m) category, waters in category 4(b) do not require a TMDL if other programs, such as Clean Air Act controls, would better address the impairment. NACWA has consistently argued that waters impaired predominantly by air deposition of mercury should be handled differently from other impaired waters and has supported the use of category 4(b). Unfortunately, several of the states that have tried to use this category have failed to meet EPA’s required burden of proof to demonstrate that the other environmental controls will ultimately achieve water quality standards. The new listing guidance provides states with additional information that may help in using category 4(b), but also provides another option for mercury-impaired waters with the addition of category 5(m), both of which should help ease the burden on POTWs discharging to these waters.

EPA Issues Test Methods, Fact Sheets on Bacteria
EPA released a final rule (http://www.epa.gov/waterscience/methods/) identifying test methods to detect Escherichia coli (E. coli) and enterococci in wastewater and fecal coliforms and salmonella in sewage sludge. NACWA has consistently advocated for the development of these methods, citing the lack of test methods for evaluating E. coli and enterococci in wastewater effluent as a major hurdle to EPA’s insistence that all states implement the agency’s 1986 bacteria criteria. EPA has also released two fact sheets clarifying the flexibility states have in determining health risks from bacteria. The documents (http://www.epa.gov/waterscience/beaches/bacteria-rule.htm) discuss acceptable risk levels for recreational waters and the appropriate use of single sample maximum values. NACWA provided additional detail on these items in Regulatory Alert 06-09 (http://www.nacwa.org/private/regalerts/ra06-09.cfm).

NACWA Participates in EPA Effort to Develop Science Plan for Recreational Use Criteria
In an effort to craft a Science Plan for the development of new or revised recreational use criteria, EPA has initiated a stakeholder dialogue and hopes to convene a group of 20 to 40 experts from a variety of backgrounds, including the POTW community, to discuss the various approaches to updating the criteria or developing new criteria. EPA anticipates the meeting will take place in Spring 2007 in the Washington D.C. area. NACWA has provided EPA with a list of possible candidates from the POTW community. The initiation of this effort comes on the heels of the NRDC filing of a legal action against EPA for its failure to, among other things, update its 1986 bacteria criteria. NACWA’s Board of Directors has approved the Association’s intervention in the NRDC case to ensure EPA has sufficient time to develop scientifically sound criteria, and NACWA’s participation in the experts workshop will also be critical to the successful development of more meaningful criteria. The experts NACWA nominated represent three member agencies from the East Coast, Midwest, and Hawaii. NACWA will work with EPA staff as they make their selections.

NACWA Comments Support Draft Guidance for Implementing Fish Tissue Criteria
NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-10-13mmerccmts.pdf) on October 13 generally supporting EPA’s Draft Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion. The Association supports the agency’s approach for basing the water quality criteria for methylmercury on concentrations found in fish tissue rather than in the water column but said that these criteria should also be implemented directly in discharge permits and TMDLs, not converted using bioaccumulation factors (BAFs) to determine water column concentrations. NACWA urged EPA to strengthen its recommendation that site-specific information be used, instead of national defaults, to implement a water column-based standard should a state choose not to directly implement the fish tissue criterion. NACWA supports developing plans to minimize pollutants for quantifiable discharges in some situations where there is no impairment of fish tissue, but believes that fish tissue criteria are best for assessing whether the water body is meeting its goals for methylmercury. The Association also agreed that states should be allowed to modify the methylmercurcy criterion using other scientifically defensible methods or different assumptions, including local fish consumption rates. NACWA will continue its close involvement on this important issue and will keep members informed of new developments.

NACWA Holds Productive Meeting with EPA on Daily Loads Case
NACWA and the District of Columbia Water and Sewer Authority (D.C. WASA) met with EPA October 23 to discuss the agency’s pending brief before the U.S. Supreme Court in Friends of the Earth v. EPA. NACWA filed a friend-of-the-court brief (http://www.nacwa.org/getfile.cfm?fn=2006-08-24WWPUSSCAmicus.pdf) supporting D.C. WASA’s request for a Supreme Court review of the April 25 decision by the U.S. Court of Appeals for the D.C. Circuit that all TMDLs be expressed in daily terms only. At the October 23 meeting, NACWA and D.C. WASA emphasized that the utility would have to change its long-term control plan for addressing its combined sewer overflows (CSOs) if the daily load issue is not resolved. Moreover, they pointed out that the case presents an opportunity for the Supreme Court to clarify the law in this area and resolve a split between two appeals court circuits on how TMDLs can be expressed. EPA officials were interested in the presentation and may incorporate NACWA’s arguments in their brief, which will be submitted by November 24.

EPA Staff Changes

Director of Office of Wetlands, Oceans, and Watersheds Leaves EPA
Diane Regas left her position as Director of EPA’s Office of Wetlands, Oceans, and Watersheds (OWOW) on October 13. Regas worked at EPA for 19 years, and is now joining Environmental Defense to work on ocean issues. Suzanne Schwartz was appointed as the Acting Director of OWOW by Benjamin Grumbles, EPA Assistant Administrator for Water. Schwartz has worked at EPA for over 20 years and was formerly the Director of EPA’s Oceans and Coastal Protection Division.