» Clean Water Current Archive

April 30, 2010

NACWA Ramps up Advocacy on Stormwater with a Win in the Courts, Letter to DOJ

NACWA continues to aggressively ramp up its involvement in stormwater issues, reinforcing its position as an effective voice on behalf of municipal stormwater utilities.  Just this week, the Oregon Court of Appeals issued a favorable opinion in a stormwater case, finding that MS4 permits in that state are not required to contain numeric effluent limits or require strict compliance with state water quality standards.  NACWA consulted closely with its Oregon members during the course of the litigation (see Advocacy Alert 10-10 for more information).  

NACWA is also leading the charge on ensuring that the federal government steps to the plate and pays stormwater fees being charged by municipal utilities — an issue that has received significant attention this week in the Nation’s Capital.  The federal government  — obviously a major property owner in D.C. — has initially refused to pay the D.C. Water & Sewer Authority’s (DCWASA) impervious area charge on the basis that it constitutes a tax on the federal government.  NACWA spoke out this week in the local print media against the refusal of federal government facilities in Washington D.C. to pay stormwater fees.  NACWA stated that federal properties should not be exempt from paying local stormwater charges and noted that “to the extent that the federal government refuses to pay its fair share, then the economic burden falls even more squarely on the shoulders of local rate payers.”  As a result of the media attention this issue is receiving in D.C., the Department of Justice is working swiftly to determine its national position on this issue.  NACWA will be weighing in today with a strongly worded letter to Attorney General Eric Holder and other key Administration officials, stating that the federal government cannot at once claim that stricter stormwater controls are a national regulatory and enforcement priority while at the same time absolving itself of the responsibility for paying for its share of the solution.  The letter will be made available on NACWA’s stormwater webpage.  

These efforts are but the most recent examples of NACWA’s stepped up advocacy in the stormwater arena that began with several more formative actions including changing the Association’s bylaws to allow stormwater utilities to be full members and the creation of a Stormwater Management Committee to guide NACWA’s actions, including on informing EPA’s development of a new national stormwater rule (see the two sets of comments NACWA has filed with EPA on this already).   

NACWA will be taking an even more active role on stormwater issues in the coming months, working to form a coalition to address stormwater concerns in the regulatory, legislative, and judicial arenas.  As part of this effort, NACWA will be developing a series of position papers and other resources to help stormwater utilities address the increasing array of requirements and mandates facing them.   For more information on NACWA’s stormwater activities, please visit the Stormwater Management section of our website and look in your inbox for NACWA’s monthly electronic newsletter, the Stormwater Advocacy Outlook.

EPA Proposes to Define Incinerated Biosolids as Solid Waste, NACWA to Seek Reversal

EPA released a suite of proposed rulemakings today on the regulation of commercial and industrial incinerators and boilers under the Clean Air Act (CAA) and senior EPA officials briefed stakeholders on the contents of the rules.  As NACWA has reported several times over the past year, one of the rules proposed by EPA articulates a new regulatory definition of non-hazardous solid waste that includes incinerated sewage sludge.  NACWA has argued for several years that publicly owned treatment work (POTW) sewage sludge is not a solid waste and should be regulated under the Clean Water Act's Part 503 rules.  In its proposal, EPA states that the domestic sewage exclusion for solid and dissolved materials in domestic sewage does not extend to POTW-generated sludges and that when those sludges are incinerated, they would be considered a solid waste.  This is only a proposed rule, so there is still time to change the Agency's direction on this. 

Significantly, however, NACWA was successful through its meetings with EPA and the Office of Management and Budget (OMB) in getting language inserted seeking comment on EPA's authority to craft an exclusion for sludges managed under Part 503 - which remains NACWA's objective moving forward.  This language opens the door for continuing dialogue on this option.  Another positive aspect of the proposal is the inclusion of language that EPA's proposal does not "cover other possible secondary material end uses," which EPA hopes will minimize the rules impact on land application.  NACWA has remaining concerns about the impacts on land application and will further investigate those as it develops comments on the proposal. 

A troubling aspect of the proposal, which NACWA will have to focus significant resources on, is EPA's determination that sewage sludge generally has higher levels of metal contaminants when compared to conventional fuels (EPA uses coal for comparison in the proposal).  This determination will have a major impact on any current and future use of biosolids as a fuel.  The solid waste determination has the most immediate and significant impact on sewage sludge incinerators (SSIs), which will face CAA maximum achievable control technology (MACT) standards should EPA make a final determination that incinerated biosolids are solid wastes.  We will only have 45 days to comment on the proposal once it is published in the Federal Register.  NACWA's Board had previously approved funds to develop legal and technical comments in light of this eventuality and the Association will be reaching out to its members soon to encourage them to weigh in with EPA as well.

NACWA Begins Work on Board-Approved Nutrient Summit

At its recent National Environmental Policy Forum, NACWA’s Board of Directors approved funding to convene a Nutrient of Summit of clean water industry stakeholders later this summer.  This Summit would outline the clean water community's vision for addressing nutrients and seek to provide EPA with proactive recommendations on a viable approach to nutrient control.  In line with the Board’s approval, NACWA has begun planning for its Nutrient Summit and will provide additional details to the membership soon.  NACWA plans to use the report from the Summit to engage EPA and the states in a meaningful dialogue on nutrient control.  In the meantime, NACWA will continue its ongoing discussions with EPA and the states on possible solutions, including via its comment efforts (see story below). 

NACWA Comments on EPA Florida Nutrient Proposal

NACWA urged EPA this week to explore the use of new, more reasonable approaches to controlling the impacts of nutrient over-enrichment and announced plans to host a summit of clean water sector representatives on possible solutions.  In its comments on EPA’s proposed numeric nutrient criteria for Florida , NACWA expressed concern about EPA's continued reliance on a rigid water quality framework for nutrients based on numeric values for total nitrogen and total phosphorus.  NACWA highlighted the need to explore alternative, more sustainable approaches that accomplish significant nutrient reduction while also providing greater flexibility.  NACWA's comments noted that reasonable and meaningful water quality goals for nutrients must be technically and scientifically defensible and technically achievable; based on a demonstrated cause and effect relationship between stressor and response variables; and should not be implemented until a biological impact has first been demonstrated.  In addition, NACWA noted that an adaptive watershed approach should be used to coordinate control efforts and ensure any goals result in a net environmental benefit. 

NACWA's comments raised significant concerns with EPA's proposed numeric nutrient criteria for Florida, noting that the criteria values, based on EPA's flawed reference condition approach, are not needed to protect water quality in Florida.  In fact, as NACWA and other stakeholders have outlined, EPA cannot demonstrate whether its proposed criteria will even be able to protect the designated uses of Florida's waters.  EPA admits in its proposal that it was not able to demonstrate a causal relationship between the nitrogen and phosphorus concentrations it has established and instream biological impacts.  EPA defaulted to its reference condition approach to establish the criteria, which, based on initial assessment by the Florida's Department of Environmental Protection, would deem even some of Florida's most pristine waters as impaired.  EPA also vastly underestimated the cost impacts of its proposed criteria on Florida's clean water agencies and other dischargers.  

While not acknowledging that the criteria values are flawed, EPA's proposal and cost estimate recognize that the numbers are extremely low and likely unachievable by many dischargers in the state.  In an effort to alleviate implementation challenges, EPA's proposal did include some positive elements including the use of annual averaging and a new concept, the restoration standard, which shows promise for improving implementation of nutrient criteria in the future.  As proposed, however, the restoration standard concept presents a significant burden in terms of the analysis that would be required to set the interim goals under the standard and leaves many questions unanswered in terms of the consequences for failing to meet those interim goals. 

NACWA is also planning a Nutrient Summit that will help formulate a more proactive set of recommendations on national nutrient policy (see article above).

NACWA Meets with Finishing Industry to Discuss Perfluorinated Compounds

NACWA presented the clean water community's perspective on perfluorinated compounds (PFCs) during the National Association of Surface Finisher's (NASF) Washington Forum this week.  NACWA has tracked the issue of PFCs in wastewater for several years now following an issue in Alabama that led to the contamination of several private drinking water wells adjacent to a biosolids land application site.  At the time, the issue of PFC contamination was thought to be isolated to those communities where PFCs, which are used in all types of applications from cookware to stain-resistant carpet, were manufactured.  However, two studies in EPA Region 5 looking at discharges from metal finishing operations and POTW influent and effluent concentrations, has shined a light on the issue of PFC-based fume suppressants used in metal finishing operations and the potential for PFC discharge to the sewer.  Predominantly used in hexavalent chromium plating operations, PFC-based fume suppressants are used to meet EPA Clean Air Act requirements.  NASF and others in the industry are looking to switch to alternative fume suppressants and invited NACWA to address its DC meeting to share the POTW perspective.  NASF representatives will be presenting at NACWA's upcoming National Pretreatment and Pollution Prevention Workshop in Phoenix, Arizona, May 19-21 (see related story) and the two organizations have committed to working together on this issue.

Legal Case Studies on Agenda for NACWA Pretreatment Workshop

NACWA’s National Pretreatment & Pollution Prevention Workshop, which will be held May 19-21 at the Hyatt Regency Phoenix in Phoenix, Arizona, will once again feature its popular panel of legal case studies involving pretreatment programs.  This year’s panel, “Law and Order: FOG and Toxics Unit,” will include two cases presented by utilities that tackled food manufacturers with excessive discharges of fats, oils, and greases (FOG).  A third presentation will focus on a hauled waste provider that knowingly brought toxic wastes to a utility in violation of its contract.  For all cases, the problems arising from the FOG and toxics will be described, as well as the legal issues and settlement terms.  With the theme of P3: The Next Generation – Its Continuing Mission to Clean the Nation’s Water,  the Workshop program will provide a comprehensive look at how pretreatment programs confront current challenges and prepare for emerging issues.  A complete agenda is available on NACWA’s website, along with registration and travel information.