NACWA Regulatory Update October 2005

Click here for previous updates.

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 9, 2005. Please contact Chris Hornback, NACWA Director of Regulatory Affairs, at 202/833-9106 or at chornback@nacwa.org or Susan Bruninga, NACWA Manager of Regulatory Affairs, at 202/833-3280 or at sbruninga@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA, NRDC Present Compromise Agreement on Blending to EPA
The compromise agreement on blending hammered out through intensive negotiations between NACWA and the Natural Resources Defense Council (NRDC) is getting a positive reception from the highest levels of the U.S. Environmental Protection Agency (EPA). NACWA and NRDC presented the mutually agreeable draft final guidance (http://www.nacwa.org/getfile.cfm?fn=2005-10-27pww.pdf) addressing the complex and controversial issue of peak wet weather flow diversions to senior EPA officials Oct. 24 and announced it publicly Oct. 27 (http://www.nacwa.org/private/faxalerts/102705se.cfm). Benjamin Grumbles, the EPA assistant administrator for water, told NACWA staff and committee leaders he was pleased with the document and the effort by NACWA and NRDC to come to a “productive and constructive middle ground.” Grumbles later told hundreds of water and wastewater professionals at the Water Environment Federation technical conference (WEFTEC) that the agency would give it a serious look and that “when organizations that have very different views on important issues come together to propose something, it's going to get my attention."

NACWA and NRDC urged EPA to finalize the joint Guidance on Peak Wet Weather Flow Diversions as written. The agreement provides EPA with a sound path forward on an issue that had become highly politicized and appeared to have reached an unfortunate impasse. The Guidance’s overall structure and content was endorsed by NACWA’s Board of Directors at its September 20 meeting. Following that meeting, a small but diverse group of NACWA member agency representatives completed negotiation of the details of the Guidance with NRDC over the course of several weeks.

The NACWA/NRDC Guidance recognizes that many municipalities currently have situations in which high peak influent flows during significant wet weather events exceed the treatment capacity of existing secondary treatment units. It notes that in these situations, wet weather flows are sometimes diverted around secondary treatment units and then recombined with flows from the secondary treatment units. The Guidance provides a mechanism for permitting such diversions in publicly owned treatment works’ (POTW) National Pollutant Discharge Elimination System (NPDES) permits. The Guidance does not apply to peak wet weather diversions in combined sewer systems, as such diversions were addressed in the 1994 Combined Sewer Overflow Policy that was codified in 2000.

For further information regarding this effort, please do not hesitate to contact NACWA’s General Counsel, Alexandra Dunn, at adunn@nacwa.org or 202/533-1803.

NACWA Members Discuss “Hot Topics” at WEFTEC Breakfast With EPA Officials
NACWA hosted its annual “Hot Topics” breakfast at WEFTEC in Washington, D.C., where several EPA water officials briefed members of the clean water community about their activities. As more funding cuts to EPA’s budget are anticipated to help offset the cost of rebuilding the Gulf Coast in the wake of Hurricane Katrina, Linda Boornazian, the head of the permits division in the EPA Office of Wastewater Management, said the Agency was trying to focus on a “wet weather approach” as a means of prioritizing funding. This involves a more holistic look at the broader problems associated with wet weather rather than just focusing on one aspect.

James Hanlon, director of the Office of Wastewater Management, discussed the draft blending guidance developed by NACWA and NRDC calling it “extremely viable.” He would not predict when EPA may act on it because he said it has to go through an interagency review, and some questions regarding the draft Guidance still need to be answered. However, he said the draft guidance is a “very high quality product” and provides an “opportunity to move forward.”

Alexandra Dunn, NACWA’s General Counsel, and Nancy Stoner, the Director of the Clean Water Project at NRDC, gave a presentation on the draft blending guidance, for which they were the principal architects, and answered questions regarding how it would be implemented if EPA adopts it.

Biosolids

Work on EPA Targeted National Sewage Sludge Survey Set to Begin in Spring 2006
EPA is continuing work on its new targeted National Sewage Sludge Survey, which the Agency committed to conduct in its 2003 response to the National Research Council (NRC) report on biosolids (See Regulatory Alert 04-02 at http://www.nacwa.org/private/regalerts/ra04-02.cfm). NACWA had expected sampling to begin this summer, but EPA is now indicating that they survey will begin in February or March 2006.

The survey is one of several projects identified by EPA to respond to the NRC report and would focus initially on 15 pollutants, including pathogens. NACWA commented in 2003 on the Agency’s preliminary survey in support of targeting the effort to fill in existing data gaps rather than conducting a broad, national survey. In those comments, the Association also recommended that in designing the survey EPA should “seek input from all stakeholders, including academia, state and federal agencies, and POTWs” (http://www.nacwa.org/getfile.cfm?fn=2003-07-08cmts.pdf).

EPA will use the data collected in the survey to update its sewage sludge exposure hazard assessment with the updated concentration information to ascertain whether the pollutants require additional regulation.

Facility and Collection Systems

NACWA Releases White Paper on Financial Capability, Affordability in Negotiations
A white paper, Financial Capability and Affordability in Wet Weather Negotiations, was issued by NACWA to provide an in-depth review of existing U.S. Environmental Protection Agency (EPA) guidance on affordability-related issues and recommend modifications to existing policy and practice on wet weather compliance and its financial impacts. The white paper, developed through NACWA’s Targeted Action Fund (TAF), provides guidance to clean water agencies on wet weather-related negotiations through a body of case studies, and suggests approaches to reducing the financial impacts of wet weather projects on low-income households. The white paper can be downloaded from NACWA’s website (http://www.nacwa.org/advocacy/taf.cfm).

The Clean Water Act requires EPA to consider the financial impacts its regulations may impose on localities. Despite existing EPA guidance, many POTWs have experienced inconsistencies in how EPA incorporates economic considerations into wet weather negotiations and how EPA assesses financial capability and affordability at the local level. A key focus of the white paper’s discussion is EPA’s 1997 “Combined Sewer Overflows–Guidance for Financial Capability Assessment and Schedule of Development” (FCA Guidance). NACWA initiated work on the white paper with the objective that a review of current EPA financial capability assessment guidance documents and practices could help result in a more holistic, economically sustainable regulatory framework for many communities. In at trade press article published subsequent to the white paper’s release, Benjamin Grumbles, EPA assistant administrator for water, stated that he “welcomes NACWA’s recommendations for improving financial hardship determinations under the Clean Water Act.”

For more information on this white paper, contact Chris Hornback, NACWA Director of Regulatory Affairs, chornback@nacwa.org or 202/833-9106.

Pretreatment and Hazardous Waste

Deadline for Commenting on Draft 2006 Effluent Guidelines Plan Extended
EPA extended the deadline for commenting on its preliminary 2006 effluent guidelines program plan from October 28 until November 28. The draft plan was released in the August 29 Federal Register along with the Agency’s 2005 review of existing ELGs and pretreatment standards (See Regulatory Alert 05-09 for more information at http://www.nacwa.org/private/regalerts/ra05-09.cfm). The Pulp, Paper, and Paperboard as well as the Steam Electric Power Generation source categories are identified in the plan for detailed review of their ELG and pretreatment standards to determine if changes are needed. In addition, EPA said the tobacco products industry may be a new category for which ELG and pretreatment standards may need to be developed.

EPA seeks comments on both the preliminary 2006 ELG program plan and the evaluation of indirect dischargers. NACWA intends to file comments on the evaluation of indirect dischargers and the 2006 ELG program plan by the November 28 deadline. Comments should have the reference number OW-2002-0020 and be submitted to EPA through its website (http://www.epa.gov/edocket) or via email (OW-Docket@epa.gov).

EPA Seeks Comment on Expanding List of Pollutants Eligible for Removal Credits
EPA is proposing to expand the list of pollutants for which removal credits are allowed under an applicable categorical pretreatment standard because the Agency has determined that the proposed pollutants do not require coverage under biosolids regulations. The advance notice of proposed rulemaking (ANPRM) in the October 14 Federal Register (70 Fed. Reg. 60,199) seeks comment on whether to add 20 pollutants for which the Agency conducted rigorous exposure and hazard screening and concluded they do not require regulation under Part 503, which governs biosolids. The ANPRM has generated concern among some anti-biosolids activists who oppose the land application of biosolids.

The notice also seeks comment on possible options for amending the “consistent removal” provision in the removal credits regulation to be consistent with a 1986 decision from the U.S. Court of Appeals for the Third Circuit. The court said the definition of “consistent removal” in the 1984 regulations did not implement Clean Water Act requirements that direct and indirect dischargers meet the same standards and that defining “consistent POTW removal” as removal achieved 50 percent of the time violated the Act.

NACWA will coordinate with its Pretreatment and Hazardous Waste Committee and its Biosolids Management Committee to develop comments on this ANPRM. Comments are due December 13 and should reference Docket ID No. OW-2005-0024. Please submit them to OW-Docket@epa.gov and send a copy to Chris Hornback at chornback@nacwa.org or to Susie Bruninga at sbruninga@nacwa.org.

Pretreatment and Hazardous Waste/Water Quality

White Paper on Pharmaceuticals Details State of Science, POTW Options
NACWA released its white paper, Pharmaceuticals and Personal Care Products in the Environment: A White Paper on Options for the Wastewater Treatment Community, to provide members with an initial discussion about pharmaceuticals and personal care products (PPCPs) that make their way into the environment. Highlighted in the paper is a discussion about the most recent research, much of which was presented at an EPA conference held August 23-25, 2005, in Las Vegas, Nevada. Increasingly sophisticated analytical methods used to monitor for groundwater and surface water contamination are revealing the presence of chemical compounds at lower and lower levels. This new information raises obvious questions about potential risks to human health and the environment from PPCPs in the water and the role for NACWA members and the nation’s POTWs.

The white paper lays out the thinking and impressions of representatives from several NACWA member agencies who attended the meeting and provides a sense of the state of science on PPCPs and the major data gaps that exist; explains the increasing public and media attention this issue is receiving; and warns of a potential ‘sleeping giant’ whose future is being guided by the battle between the precautionary principle and clear, reasonable scientific evidence. NACWA wants to ensure that any approach to addressing this challenge is firmly rooted in science and not dictated by public anxiety over potential risks that may never materialize.

The white paper provides information about the nature and types of chemicals at issue, followed by an explanation of how they end up in U.S. waterways. A discussion of research being conducted by EPA and university scientists is presented, followed by strategies and barriers for addressing PPCPs. Several options POTWs may consider for addressing this issue are also included. These range from public education campaigns to product stewardship initiatives, such as take-back programs and pharmaceutical collection days.

Many regulators, researchers, and some in the regulated community agree that the best approach is to remove these chemicals at the source rather than after disposal. To that end, some POTW officials said take-back programs may offer the most cost-effective solutions in many situations depending upon the degree to which unused materials contribute to the source and the reduction needed to mediate any problem. Others questioned their usefulness if the majority of the problem stems from human excretion rather than the disposal of unused PPCPs.

There is general agreement, however, that much more information is needed before broad national strategies for addressing the problem are implemented. In the meantime, NACWA will work with its member utilities through its Pretreatment and Hazardous Waste Committee and Water Quality Committee as well as with other organizations that are doing environmental research to take the results and develop options for minimizing risks and communicating these strategies to the public. For more information on this white paper, contact Susan Bruninga, NACWA Manager of Regulatory Affairs, sbruninga@nacwa.org or 202/833-3280.

Security

NACWA Releases Decontamination Guide to Assist Utilities with Emergency Response
NACWA released its long-awaited Planning for Decontamination Wastewater: A Guide for Utilities, developed through a cooperative agreement with EPA (http://www.nacwa.org/advocacy/security/). The Guide is intended to increase the level of awareness within the wastewater community and provide guidance on how to ensure that wastewater infrastructure is protected in the event of an attack that generates decontamination wastewater. Historically, attention regarding the protection of infrastructure has focused on a direct terrorist attack despite the fact that a wastewater treatment system is more likely to be affected by an incident somewhere else in the community where decontamination wastewater is generated and discharged to the collection system. Specifically, the Guide is designed to ensure managers of wastewater utilities are cognizant of the pre-planning necessary to prevent, detect, respond to, and/or recover from the impact of decontamination wastewater containing chemical, biological, or radiological (CBR) substances. CBR agents of concern are examined along with plausible incident scenarios. A section on planning and coordination explores the potential modification, or addition, of sewer use regulations and policies – as well as the leveraging of pretreatment programs. Detection, response and recovery and public communication also receive prominent attention. Critical sections on maintaining knowledge and “where to begin and what to do” focus on training, resources and logistics are also included.

The Guide was created to help utilities inform their employees of the potential impacts associated with decontamination wastewater, outline the basic actions utilities should consider in planning for such an event, and provide Internet links and references to other sources of detailed information. The pretreatment component of this issue will be discussed at the Pretreatment and Pollution Prevention Workshop being held in Kansas City, Nov. 16-18. A more detailed Member Update and a complimentary copy of the Guide was mailed to every NACWA member agency. Association members can also download the Guide from NACWA’s Security webpage (http://www.nacwa.org/advocacy/security/).