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NACWA September 2005 Regulatory Update

Member Pipeline - Regulatory - September 2005 Regulatory Update

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To:	Members & Affiliates, Regulatory Policy Committee, Legal Affairs Committee
From:	National Office
Date:	October 6, 2005

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2005 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to October 5, 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

Final Pretreatment Streamlining Rule Results From Decade of NACWA Advocacy
The final pretreatment streamlining rule was signed by U.S. Environmental Protection Agency (EPA) Administrator Stephen Johnson on September 27. More than a decade of hard work by NACWA and the leadership of its Pretreatment & Hazardous Waste Committee produced key victories for municipalities in the final regulation. A special thanks goes to Committee Chair Guy Aydlett, Director of Water Quality for the Hampton Roads Sanitation District, in Virginia Beach, Va., who was a tireless advocate for publicly owned treatment works (POTWs) throughout the rulemaking process.

A prepublication copy of the rule is posted on the NACWA website (http://www.nacwa.org/advocacy/co/2005-09-28pretrule.pdf). An analysis of the rule shows POTWs will benefit from provisions that:

Allow Control Authorities to set equivalent mass-based limits instead of concentration-based limits if the industrial user (IU) requests them and it can be documented that the change is appropriate to accommodate water conservation measures. Because of restrictions in the existing rules, some IUs have refused to employ water conservation measures out of concern the reduced flow would cause them to violate their concentration-based permit limits.
Provide 45 days, instead of the current 30 days, to submit key reports before an IU would be considered late and in significant noncompliance (SNC). About 70 percent of SNC determinations result from late reports rather than actual discharge violations that can harm the environment.
Allow POTWs to significantly reduce their oversight of “non-significant categorical industrial users” (NSCIUs), a new category established in the rule. These are facilities that discharge no more than 100 gallons per day (gpd) of process wastewater. Reduced reporting requirements are also allowed for a “middle tier” of categorical industrial user (CIU) that are still considered significant industrial users (SIUs). The requirements are more stringent than for NSCIUs, but less than those for regular CIUs. The middle tier comprises facilities whose categorical wastewater is 0.01 percent of design capacity of the POTW with a maximum threshold of 5,000 gpd, a significant improvement NACWA fought for from the proposed ceiling of 100 gpd.
Eliminate the need to sample for pollutants not present or expected to be present at the POTW at levels greater than that of the intake water.

In addition to these provisions, the rule contains a number of other positive changes that are expected to save POTWs millions of dollars in time and resources because of the reduced reporting and oversight burden. A more detailed analysis of the rule will be made available in an upcoming Regulatory Alert. The Association, however, will continue work to further streamline the pretreatment program, as long as such changes have no adverse impact to the environment—including providing relief from unnecessarily burdensome permit requirements.

NACWA, Other Groups Meet with EPA on Issues of Importance to Municipalities
NACWA staff and representatives from other municipal groups met with top officials in the EPA Office of Wastewater Management (OWM) in late September to discuss a number of issues important to cities, including the pretreatment streamlining rule that was signed later that day, recovery efforts from Hurricane Katrina, and water quality trading. Also participating in the meeting were representatives from the National League of Cities, the Water Environment Federation, and the U.S. Conference of Mayors, among others.

Hurricane Recovery Efforts

Recovery efforts from the damage done to New Orleans by Hurricane Katrina has consumed much of OWM’s staff and resources. Among other things, the Agency is working on a national response plan with separate components for the different issue areas. The EPA Office of Solid Waste and Emergency Response (OSWER) is handling the hazardous waste component, while the public utilities and infrastructure is being overseen by the U.S. Army Corps of Engineers with support from OWM. Another component of the plan involves the longer term reconstruction of the city.

EPA is being pressured by the White House Office of Management and Budget to come up with cost projections for the recovery effort, and NACWA has been contacted to provide estimates to the White House Office of Management and Budget (OMB) on the construction costs for treatment plants. NACWA is also working closely with EPA on the National Emergency Response Registry (NERR), a repository of service providers, including vendors and volunteers who can offer technical assistance (http://www.nacwa.org/private/faxalerts/katrina.cfm). “Anyone with anything to offer can put their information in there,” Jane Moore, the deputy OWM director who is coordinating hurricane relief efforts, said.

Water samples taken from parts of Lake Pontchartrain where flood waters are being pumped have shown surprisingly positive results. Part of this may be because New Orleans has acted as a settling basin for many of the pollutants in the flood waters, and most of the water is being pumped from the top. So far, sampling has shown higher concentrations of lead, mercury, and pathogens—a mixture that Jim Hanlon, the OWM director, described as looking “a lot like diluted sewage.” EPA has also been looking for “hot spots” within the flooded areas and working to get portable equipment in to treat onsite. This work on the recovery, however, has put other issues important to municipalities on hold. “The whole municipal team” in the permits division of OWM is working on the hurricane recovery effort, Agency officials said. EPA had been close to completing work on its 2004 Clean Watershed Needs Survey, but some figures will have to be revised to include cost projections for repairing or rebuilding the facilities in southern Louisiana that were flooded. “It changes the needs profile if a facility is under 20 feet of water,” Hanlon said. On a positive note, Hanlon pointed out that 80 to 90 percent of the clean water state revolving fund (SRF) monies for fiscal year (FY) 2006 will be disseminated Oct. 3 because the EPA budget, included in the Interior and Environment Appropriations bill, was enacted in July, which is much earlier than usual (http://www.nacwa.org/private/legreg/legupdate/july05/).

Water Quality Trading

Water quality trading and improving efficiencies in the National Pollutant Discharge Elimination System (NPDES) permit program were also discussed at the meeting. The Agency expects to see an increase in the number of permits with trading provisions as states adopt numeric water quality criteria for nutrients. Currently, 96 NPDES permits have trading provisions, and 296 facilities have been involved with 82 trades, mostly of nutrients. Seventy-nine of the trades have taken place in Connecticut, which is using trading to address nutrients in Long Island Sound.

EPA continues to seek improved efficiencies in the NPDES permit program because the number of facilities needing permits has increased from about 50,000 a decade ago to about 500,000 now. General permits and the use of an electronic tool that can help calculate information for setting limits are options EPA wants to employ to boost efficiency. Watershed permits, including integrated municipal permits that incorporate multiple wastewater treatment plants under one permit, are also getting more attention. State officials have said one roadblock to these integrated permits is that developing them requires an extra staff person, and most states say they do not have the resources. EPA is working on highlighting examples of municipal integrated permits that cover multiple facilities and also employ trading programs.

Finally, EPA said work on its Sustainable Infrastructure strategy is being hampered by budget cuts. NACWA expressed concern that some of the work being funded by the Agency in this area duplicates work already underway by municipal groups and said EPA should communicate more on this issue.

Reporting

EPA Signs Final Rule Setting Electronic Reporting Requirements
EPA signed a final rule Sept. 22 designed to remove barriers and set up a legal framework for electronic reporting. The Agency decided that it would only address electronic reporting in the final Cross-Media Electronic Reporting and Recordkeeping Rule (CROMERRR) and defer action on the recordkeeping requirements. The EPA General Counsel advised against making a prepublication copy of the rule available, but the rule is expected to appear in the Federal Register the week of Oct. 10. POTWs will be affected both in their roles as regulators and regulated entities. As regulators, POTWs must maintain information concerning compliance, permits, enforcement, monitoring, and other regulatory information for hundreds of industrial users discharging to their plant. In its 2002 comments, NACWA urged the Agency to ensure that its rule continue to allow POTWs who already have electronic reporting mechanisms in place to continue using that system without interruption and without being in violation (http://www.nacwa.org/private/legreg/outreach/02-27-02CROMERRR.pdf). Once the rule is made available, NACWA will review it to determine if its comments were incorporated and will provide members with a Regulatory Alert detailing aspects of the rule.

Wet Weather

NACWA Recommends EPA Abandon Fact Sheet on SSOs, Model Permit Language
NACWA sent a letter to EPA Sept. 13 urging the Agency to abandon its “fact sheet” and model permit language designed to address sanitary sewer overflows (SSOs) (http://www.nacwa.org/advocacy/co/2005-09-13grumbles.pdf). NACWA’s letter to Ben Grumbles, EPA assistant administrator for water, outlines the Association’s view that the complex SSO issue should be addressed in a formal rulemaking that establishes consistent national standards of performance for the nation’s collection systems. NACWA supported a rulemaking effort undertaken by EPA a decade ago with the expectation that it would result in a regulation that addresses NPDES permitting for satellite collection systems, the implementation of capacity, management, operation, and maintenance (C-MOM) programs, and the recognition of C-MOM programs as the standard for responsible collection system operation. The draft “fact sheet” abandons this effort and seems to assert that the core elements of an unpublished 2001 draft proposal are already required under the existing permit program. If made final, the draft fact sheet would short-circuit the rulemaking effort. Further, it ignores important information about sewer overflows that was made available in two EPA Reports to Congress. NACWA also questions whether provisions in the document could be implemented legally without a formal rule.

NACWA also outlined concerns about the draft fact sheet, including:

That the fact sheet/model permit language (FS/MPL) approach drives SSO policy making to the ad hoc “permit by permit” level, completely undermining the importance of a nationally consistent program and standard;
That the FS/MPL advances a zero overflow standard, without stating how existing NPDES defenses apply, providing the defenses to unavoidable overflows contemplated in the SSO rule efforts, or linking C-MOM implementation to an overflow defense;
That a FS/MPL approach would eliminate public participation and comment on these important issues; and
That the FS/MPL does not address other critical areas of concern, such as discharges that do not reach navigable waters, basement backups, and requirements for Peak Excess Flow Treatment Facilities (PEFTFs).

NACWA will continue to advocate for a consistent national policy on SSOs and reminded EPA of its commitment to “move forward with a SSO rule despite the complexity of the issues.” EPA has expressed an interest in meeting with NACWA in early November on the SSO issue.

Water Quality

NACWA Comments on EPA Proposal to Change Data Requirements for Pesticides
NACWA submitted comments to EPA in early September expressing concern that the Agency’s proposal to revise certain data requirements for pesticides does not adequately ensure water quality is protected (http://www.nacwa.org/advocacy/comments/OPP-2004-0387NACWAcmts.pdf). Specifically, EPA’s March proposal addressed pesticide registration requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (March 11, 2005; 70 Fed. Reg. 12276).

NACWA noted the challenges POTWs face as they strive to meet increasingly stringent effluent limitations while having little control over many of the sources of toxic pollutants, including pesticides, in the wastewater they treat. As a result, the Association urged EPA to integrate water quality protection into its pesticides program. NACWA informed EPA that most wastewater treatment plants are not designed to treat pesticides, which can pass through the process and cause aquatic toxicity or exceedances of the facility’s permit limits.

NACWA urged the EPA Office of Pesticides Programs to work with the Office of Wastewater Management on selecting the data and methodology that should be required in the rulemaking for a complete assessment of the environmental and compliance risks associated with pesticide discharge into sewers. For example, EPA should modernize aquatic toxicity test methods to make its pesticides program consistent with Clean Water Act test programs; model urban runoff to estimate pesticide water concentrations resulting from urban pesticide use; and conduct whole sediment toxicity testing for pesticides.

NACWA Provides Information to EPA on Surveys for Drinking Water ELG
Following a Sept. 2 meeting between NACWA’s Pretreatment and Hazardous Waste Committee leadership and EPA on its effort to establish effluent limitation guidelines for drinking water facilities, NACWA submitted information on the detailed surveys and screener surveys the Agency is using to collect information for the rulemaking (http://www.nacwa.org/advocacy/comments/NACWACmtsonOW-2004-0035.pdf). Specifically, the surveys do not recognize that many water and wastewater agencies have historically worked together to manage the myriad wastestreams generated in the process of treating drinking water. These arrangements have involved the use of local limits as well as other provisions of approved pretreatment programs.

NACWA also identified numerous other wastestreams generated by drinking water facilities in addition to the solids addressed in the surveys. These include laboratory wastewater, regeneration water from water softener for boiler make-up, chlorine analyzer wastewater, equipment wash-down wastewater, contact and non-contact cooling water, boiler blow-down and raw water pumping from sample collection. NACWA also pointed out that not all wastes discharged to the treatment plant come through the sewer system to the headworks. In some cases, for example, wastewater treatment plants co-manage drinking water solids with their own solid wastes. EPA expects to propose the drinking water ELG in the fall of 2006 and to finalize it in 2006.

Conferences and Meetings

Programs for Law Seminar, National Pretreatment Workshop Being Finalized
NACWA is close to putting the finishing touches on the agendas for two important conferences scheduled for mid-November. The Developments in Clean Water Law seminar, scheduled for Nov. 9-11, in Santa Fe, N.M., will focus on key legal, regulatory, and policy issues, including sessions on collection system permitting, real-world strategies for use attainability analyses (UAAs), and communications strategies for public utilities. Advance registrations are due by Oct. 26.

The National Pretreatment Workshop will be held a week later on Nov. 16-18 in Kansas City and will include panels and roundtable discussions on EPA’s new pretreatment streamlining rule and its effect on POTWs, pharmaceuticals and other emerging pollutants, and dealing with fats, oils, and grease (FOG) and other issues in the absence of a rule on sanitary sewer overflows (SSOs). The hotel reservation deadline is Oct. 25.

Please refer to the Conferences and Meetings page on NACWA’s website for registration, hotel contact, updated agenda, and other information (http://www.nacwa.org/meetings/).