Member Pipeline - Regulatory - October 2006 Regulatory Update
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| To: | Members & Affiliates, Regulatory Policy Committee |
| From: | National Office |
| Date: | October 2, 2006 |
Printer friendly versionThe National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2006 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to October 2, 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
NACWA Briefs EPA’s Office of Science and Technology on Top Issues
NACWA met September 14 with Ephraim King, head of EPA’s Office of Science and
Technology (OST), to highlight a list of OST issues the Association is currently
tracking. King and his staff are responsible for developing national water
quality criteria, the effluent limitation guidelines program, and reviewing the
Part 503 regulations for biosolids, among other critical water programs. A top
issue for both NACWA and OST is the Natural Resources Defense Council’s (NRDC)
pending litigation over EPA’s failure to comply with portions of the Beaches
Environmental Assessment and Coastal Health (BEACH) Act (see related story
below), including a requirement to develop new bacteria criteria. NACWA noted
that the Association was considering intervention in the case and King
reemphasized his office’s support of the existing, 1986 bacteria criteria. At
the same time, King highlighted his plan for a stakeholder dialogue on what the
next generation of criteria would look like and promised to engage NACWA in
those talks. One of King’s priorities is to validate an analytical method for
use in monitoring beaches and other recreational waters for bacterial
contamination. NACWA also highlighted the need for EPA Headquarters to continue
to support efforts to develop wet weather water quality standards and conduct
use attainability analyses, where appropriate. King will join NACWA at its Hot
Topics Breakfast during WEFTEC on October 24, from 8:00 – 10:30 am at the Hyatt
Regency in Dallas (see September 29, 2006, Special Edition Fax Alert at
http://www.nacwa.org/private/faxalerts/20060929se.cfm).
Air Quality
NACWA Sends Letter to Ozone Transport Commission Supporting POTW Exclusion
On September 28, NACWA sent a letter (http://www.nacwa.org/getfile.cfm?fn=2006-09-28cmts.pdf)
to the Ozone Transport Commission (OTC) supporting the OTC’s decision to remove
publicly owned treatment works (POTWs) from the current round of emission
controls. “Because of the high costs and limited benefits, NACWA agrees with
OTC’s decision not to consider additional VOC (volatile organic compound) emission controls for POTWs at the
current time,” the letter said. The OTC’s emission control measure recommended
expansion of the Maximum Achievable
Control Technology (MACT) standard, requiring POTWs to cover primary treatment
processes and route emissions through a carbon adsorption unit or other device
that would achieve 85 percent control of VOCs. If
this control measure had been implemented, it would have caused significant
expense to POTWs in the northeastern states represented by the OTC. NACWA stated
in its letter that the MACT standard is not a viable option for emission control
at typical POTWs because of the impracticality of operating carbon adsorption
units at POTWs and the excessive cost of both the carbon adsorption units and
the primary treatment covers. NACWA also cited a 1994 study conducted by the
Southern California South Coast Air Quality Management District (SCAQMD) that
demonstrated that VOC emissions from POTWs were insignificant in the SCAQMD
region, with total emissions from POTWs less than those of commercial bakeries.
Although the OTC will not impose controls on POTWs at the present time, POTWs
are still listed as “under further review” by the OTC and could be considered
for controls in the future. NACWA will continue to follow the OTC’s activities
to ensure that POTWs are not subject to impractical and expensive emission
control requirements.
NACWA Tracking, Preparing to Comment on Upcoming Greenhouse Gas Inventory
NACWA staff and leaders of its Air Quality Committee met with EPA on September
11 to discuss EPA’s estimates of greenhouse gas emissions from wastewater
treatment facilities. EPA has compiled an annual U.S. Greenhouse Gas Emissions
Inventory (http://yosemite.epa.gov/oar/globalwarming.nsf/content/ResourceCenterPublicationsGHGEmissions.html),
as required by the United Nations Framework Convention on Climate Change, for
more than a decade. The inventory is currently used only for information
purposes, not for developing regulations. However, with California and several
states in the Northeast developing their own greenhouse gas reduction programs,
the inventory may become more significant in the future. With wastewater
treatment listed as the fifth largest source of nitrous oxide and the sixth
largest source of methane in the most recently published inventory (2004), clean
water agencies could potentially be targeted for state or national greenhouse
gas controls. NACWA and its Air Quality Committee will review the 2005 inventory
draft when it is released and provide EPA with comments. NACWA will continue to
work with EPA to refine and improve the methods used for future estimates of
wastewater treatment greenhouse gas emissions.
Biosolids
NACWA Meets With EPA on THC/CO Limits for Biosolids Incinerators
Following up on a survey conducted by NACWA and the Water Environment Research
Foundation (WERF) in 2005 (http://www.nacwa.org/private/regalerts/ra05-05.cfm),
NACWA met with EPA biosolids officials September 19 to discuss some of the
findings from the survey. Responding to concerns raised by several NACWA members
who operate incinerators, NACWA and WERF conducted the survey through the CleanWater Central database (www.cleanwatercentral.org) to collect information
on how agencies were complying with requirements to continuously monitor their
total hydrocarbon (THC) or carbon monoxide (CO) emissions. The top concern
raised by survey respondents was the operation and maintenance (O&M) issues they
were encountering with the monitoring systems, including frequent breakdown,
high repair costs of older models, and durability issues. Most of the difficulty
seemed to be associated with monitoring for compliance with the 100 ppm limit
for THC. During the meeting with EPA, NACWA discussed the possibility of using a
surrogate parameter to demonstrate compliance with the THC limit – one that
would be easier to monitor on a continuous basis. EPA indicated that it would
consider such an approach if NACWA could provide data demonstrating that an
alternative parameter(s) would provide an adequate indication of THC limit
compliance. NACWA also discussed the need for a more realistic CO limit and the
need for more training on the use of continuous emissions monitors and the
incinerator regulations in general. NACWA’s Incineration Issue Leader will be
following up with the Association’s incinerator members to determine next steps.
Conferences
Online Registration Now Available for NACWA’s 2006 Clean Water Law Seminar
Online registration is now available 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. Join your colleagues for
a discussion of cutting-edge developments in the regulatory and legal aspects of
the Clean Water Act. Seminar panels will cover issues ranging from traditional
and non-traditional defensive tools and relationships between in-house and
outside counsel to 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. More information is available on
NACWA’s website (http://www.nacwa.org/meetings/06law/). The hotel registration
deadline is October 24, so register today!
Join NACWA During WEFTEC for its Annual Hot Topics Breakfast
NACWA’s annual Hot Topics Breakfast will be held in conjunction with
WEFTEC 2006
on Tuesday, October 24, from 8:00 am – 10:30 am, at the Hyatt Regency in Dallas,
Texas. The Breakfast will take place in the Reunion A & B rooms on the lobby
level of the Hyatt Regency, which is the WEFTEC headquarters hotel. The first
hour will be dedicated to a discussion with our guests from EPA on issues that
will include EPA’s response to a D.C. Circuit Court decision defining the word
“daily” in total maximum daily loads, the current status of the Agency’s
proposed peak wet weather flows policy, next steps toward a viable sanitary
sewer overflow (SSO) policy, the Agency’s ongoing efforts in the wastewater
security and sustainable infrastructure arenas, and more.
This discussion will be followed by an in-depth session titled Succession Planning at the Top....Lessons Learned, which will explore successful succession planning strategies for public agency executive-level staff. This session will feature a facilitated discussion of lessons learned by several utility leaders and Board members who have undertaken succession planning processes for executive-level staff, including case studies from Cleveland, Houston, Cincinnati, and St. Louis. These presentations will focus on the critical issue of whether to stay in house or conduct external searches for executive replacements.
Facility and Collection Systems
NACWA Sends Letter to EPA Urging Action on SSO Rule
On September 14, NACWA sent a letter (http://www.nacwa.org/getfile.cfm?fn=SSOLetter.pdf)
to Ben Grumbles, EPA Assistant Administrator for Water, requesting that EPA
commit significant resources to establish a national policy for sanitary sewer
overflows (SSOs). “Absent a meaningful commitment to move forward from EPA,
NACWA intends to formally petition the Agency to initiate an SSO rulemaking,”
the letter stated. A comprehensive national program for SSOs will eliminate the
current uncertainty about SSO control requirements that discourages communities
from improving their sewer infrastructure. With national standards, communities
will be able to plan appropriately to establish or maintain funding for managing
and operating their sewer systems, with less concern about defending haphazard
enforcement actions. A national program will also allow satellite collection
systems to be brought under Clean Water Act jurisdiction. Several years ago, EPA
expressed its intent to refocus efforts on a national SSO policy after
completion of a peak flow management policy. With the peak flow policy nearing
finalization, NACWA now intends to hold EPA to its word to renew its commitment
to an SSO policy.
NACWA Meets with White House to Address Concerns Over Peak Flows Policy
NACWA and NRDC met with the White House Office of Management and Budget (OMB)
September 20 to address cost concerns regarding EPA’s draft peak excess flows
policy. Specifically, OMB expressed concern that the proposal has no
accompanying cost-benefit evaluation. NACWA addressed this matter by providing
OMB with member agency information on cost while also emphasizing the critical
need for the policy as another tool for managing the rising cost of cleaning up
the nation’s waters. NACWA also reiterated EPA’s assertion that it would like to
move quickly to release the policy in final form. OMB expressed its appreciation
for the work done by NACWA and NRDC in laying the foundation for the policy.
Both groups will continue to work together to ensure finalization of this policy
as quickly as possible.
Utility Management
NACWA Meets with EPA on Efforts to Revise 1997 Financial Capability Guidance
NACWA met with key EPA officials September 25 to discuss the Agency’s ongoing
efforts to revisit its 1997 document, Combined Sewer Overflows - Guidance for
Financial Capability Assessment and Schedule of Development. In July, NACWA’s
Board of Directors approved Targeted Action Funds (TAF) for the Association to
build on its 2005 White Paper, Financial Capability and Affordability in Wet
Weather Negotiations, and further develop a more reasonable approach to
assessing a community’s ability to pay for environmental obligations. NACWA
intended to use the TAF project to influence EPA’s decisionmaking process with
regard to revising the 1997 guidance. EPA has finished a review of the
underlying economic assumptions in the 1997 guidance and was scheduled to
present the findings from that review to Wastewater Management Office Chief, Jim
Hanlon last week. Based on this briefing, Hanlon will recommend to Ben Grumbles,
Assistant Administrator for Water, on the Agency’s next steps for revising the
guidance. NACWA does not expect major changes to the document, but hopes its
new, at press time, TAF effort will continue to put pressure on EPA to take a
more holistic approach to evaluating the financial capability of the nation’s
municipalities to undertake major environmental improvement programs. NACWA’s
TAF effort will be completed by the end of the year.
Water Quality
NACWA Meets with EPA as Agency Prepares Supreme Court Filing on TMDLs
NACWA, along with other clean water stakeholders, met September 7 with EPA
officials on their ongoing efforts to respond to the U.S. Court of Appeals for
the D.C. Circuit’s April 25 decision on the meaning of "daily" in total maximum
daily loads (TMDLs). EPA continues to work on a memorandum intended to provide
guidance to states and regions on implementing TMDLs in light of the decision.
It now appears that EPA will use the memorandum as a component of the
government’s filing in the continuing legal fight over the decision. As reported
in last month’s Regulatory Update, the D.C. Water and Sewer Authority (D.C.
WASA), a NACWA member agency, has petitioned the Supreme Court for review of the
April 25 decision, and NACWA and the Wet Weather Partnership (WWP) filed a joint
brief August 24
(http://www.nacwa.org/getfile.cfm?fn=2006-08-24WWPUSSCAmicus.pdf) supporting
D.C. WASA’s request. EPA, represented in the case by the U.S. Department of
Justice (DOJ), filed a letter
(http://www.nacwa.org/getfile.cfm?fn=2006-09-06scltrsg.pdf) September 6 with the
Supreme Court asking for the additional time to respond to the petition for
Supreme Court review of the case. The government now has until October 25.
NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2006-07-27DLcmts.pdf) on EPA’s draft memorandum and continues to have concerns with EPA’s proposed approach, which draws a tenuous distinction between TMDL development and permit limit implementation. The Association will keep members apprised of additional developments with the case.
NACWA Plans Intervention in BEACH Act Case
NACWA’s Board of Directors has approved the Association’s intervention in
litigation surrounding the BEACH Act to ensure the Association has a seat at the
table in anticipated negotiations. NRDC is suing U.S. EPA over its failure to
meet BEACH Act deadlines for conducting key studies and for developing new
bacteria criteria for coastal waters. The Association is currently evaluating
whether to intervene on the side of NRDC to ensure that EPA moves forward with
developing new or revised criteria. At the same time, NACWA’s anticipated
involvement in the case will also help ensure EPA has adequate time to conduct
the necessary studies to establish reasonable, scientifically-based criteria.
NACWA Weighs in on Proposed National Laboratory Accreditation
Program
NACWA sent a letter (http://www.nacwa.org/getfile.cfm?fn=2006-09-06Grumbles.pdf)
September 6, to Benjamin Grumbles, EPA Assistant Administrator for Water,
regarding an initiative by the National Environmental Laboratory Accreditation
Conference (NELAC) to partner with the Agency on a national lab accreditation
program. Representatives of NELAC met with EPA to request that the Agency
mandate a national accreditation program, based on the existing NELAC standard,
requiring that all Clean Water Act-related analyses be conducted by nationally
accredited laboratories. NACWA’s letter urged EPA not to consider NELAC’s
proposal at this time given the lack of municipal input into the current NELAC
accreditation standard and other issues associated with the standard itself.
NACWA also requested that public wastewater treatment utility representatives be
included in any future discussions regarding national laboratory accreditation
to ensure that local government perspectives and concerns are adequately
incorporated. In its meeting with key officials from the Office of Science and
Technology (see related story above), NACWA learned that NELAC representatives
had been told that EPA was not likely to mandate national accreditation. NACWA
will pass along any additional information regarding lab accreditation issues to
the membership as it becomes available.