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November 13, 2009

NACWA Law Seminar Focuses on Enforcement, Emerging Legal Issues Facing POTWs

NACWA’s 2009 Developments in Clean Water Law Seminar this week in Washington DC, provided clean water attorneys and utility managers with information and analysis on some of the most important current clean water legal issues.  Among the many speakers to address the Seminar was Cynthia Giles, EPA’s assistant administrator for enforcement and compliance assurance (OECA), who discussed current clean water enforcement priorities at EPA.   She reiterated the agency’s plan to target major point source dischargers, including publicly owned treatment works (POTWs), even though, collectively, agriculture and other nonpoint sources of pollution continue to be the primary cause of water quality impairment.  She also stated, however, that EPA recognizes the unique and important role POTWs play in achieving the goals of the Clean Water Act and that OECA is committed to focusing not just on POTWs but also on other sources of water impairment including stormwater and concentrated animal feeding operations (CAFOs).  She said the agency was “sensitive to the issue of affordability” but does not want to fail to enforce the law even in areas that are struggling economically.

Law Seminar participants also heard from Jim Hanlon, the director of EPA’s Office of Wastewater Management, who discussed EPA’s current water office priorities under a new presidential administration, including the recently released Chesapeake Bay Plan that calls on federal, state, and local authorities to work together to reduce nitrogen loadings from the current 300 million pounds per year to the needed 200 million lbs/year.  He also discussed the blending policy NACWA negotiated in 2005 with the Natural Resources Defense Council (NRDC) saying it represented “a logical path forward,” and questioned whether the thinking on it has evolved at all.

What Happens When the Rules Change?
The Seminar agenda featured a variety of different panel discussions.  One panel explored the issue of what a clean water agency can do when the legal rules affecting its operations suddenly change.  The panel looked at a number of examples where these kinds of legal changes are currently affecting POTWs, including new permitting regulations on peak flow blending, a possible reclassification of biosolids as a solid waste, and tighter regulations of nutrients.  The panel then identified possible avenues of legal and regulatory response utilities can use to challenge these types of change and protect their legal rights.

Another well-received panel addressed litigation trends in two important areas of great interest to clean water law practitioners: development of numeric nutrient criteria and wet weather consent decrees.  The panel’s expert speakers provided an update on current litigation in Florida over efforts by EPA to develop numeric nutrient limits for clean water utilities in that state, discussing the potential impacts on the rest of the country.  The panelists also examined recent developments in wet weather consent decrees, including the emergence of a “phased approach” to setting compliance schedules in combined sewer overflow (CSO) decrees and the recent signing of a sanitary sewer overflow (SSO) decree that does not set a firm end date.

Other panels at the Seminar focused on the importance of public perception to defending a utility’s legal rights, a discussion of key legal terms of art, a review of the most important Clean Water Act cases of the past year, and an analysis from the utility perspective of current issues in clean water enforcement.  All of the presentations from the Seminar will be available next week on the NACWA website on the Conferences & Professional Development page.

NACWA Meets With EPA Pretreatment Officials on Dental Amalgam Law, Other Issues

NACWA met with EPA staff this week to discuss a number of priority pretreatment issues, including a new law in Michigan requiring dental offices to use amalgam separators, and concerns about laboratory procedures.  Theresa Pfeifer, of Denver Metro Wastewater Reclamation District and chair of NACWA’s Pretreatment and Pollution Prevention Committee, and Martie Groome, of the Greensboro, N.C., Water Resources Department and vice chair of the committee, attended the meetings with Marcus Zobrist, the new Industrial Branch Chief of the Water Permits Division, and Jan Pickrel, National Pretreatment Coordinator.

NACWA expressed concern about the Michigan law  that took effect in January, mandating the use of dental amalgam separators by dental offices but limiting a pretreatment program’s ability to implement any additional requirements on dental office dischargers.  EPA attorneys are investigating options for addressing this law, which is in apparent violation of the Clean Water Act.

EPA’s Engineering & Analytical Support Branch of the Office of Science and Technology provided NACWA with written clarification  regarding problems the Association had raised with laboratory procedures  resulting from regulatory changes to 40 CFR 136.  The questions related to preservation of grab samples, approval of cyanide testing methods, and the pH range required for hexavalent chrome testing.  EPA staff is interested in hearing about any other issues that utilities are having with laboratory methods, and the Pretreatment Committee will continue to collect questions for EPA.  In addition, EPA said it is continuing to work on the Pretreatment Performance Measures and will seek NACWA’s comments on future drafts of this voluntary performance evaluation for the National Pretreatment Program.  EPA also committed to attending the next NACWA National Pretreatment and Pollution Prevention Workshop, which will be held May 19-21 in Phoenix.

NACWA’s Board, Committee Leaders Meet to Consider Strategic Plan

NACWA’s Board of Directors and Standing Committee leadership met this week in Washington, D.C., to revisit the Association’s Strategic Plan.  Originally adopted in 2004 and last updated in 2007, the Plan focuses on Association goals and objectives – and the strategies it will take to achieve them.  The deliberations this week were significantly informed by the results of both a series of qualitative telephone interviews – and a quantitative survey of the membership that concluded in October.  Under the leadership of Strategic Planning Committee chair, Jeff Theerman, NACWA vice president and executive director of the Metropolitan St. Louis Sewer District, the updated Strategic Plan will undergo several reviews and is anticipated to be adopted by the Association’s Board of Directors in February.  Association members will be provided additional information at the time the new Strategic Plan becomes available.  NACWA wishes to thank the many member agencies and affiliates who responded to the surveys and shared their perspectives on how the Association can best serve its members.