BNA, March 24, 2010

The Environmental Protection Agency is objecting to state permits that allow water utilities to avoid fully treating wastewater during heavy rains, a move utility officials and state regulators say is based on proposed guidance from 2005 that was never made final.

The agency's position appears to be a reinterpretation of previous informal policies and could force water utilities to undertake expensive fixes, such as expanding treatment systems, the National Association of Clean Water Agencies said.

Chris Hornback, NACWA senior director of regulatory affairs, told BNA that EPA's failure to finalize an official policy on blending partially treated and fully treated wastewater before it is discharged into water supplies is causing confusion for wastewater treatment plants and could impose huge costs on municipalities already struggling to upgrade aging infrastructure.

Officials with NACWA, which represents publicly owned treatment works, or POTWs, met with EPA Assistant Administrator for Water Peter Silva Feb. 19 to call for an official written policy on wastewater blending. NACWA also discussed its concern with what it considers an overall lack of regulation and clarity on a policy for overflows from sanitary sewers, which are designed to handle wastewater. The agency has had in place for several years a published policy for combined sanitary sewers, which handle wastewater and stormwater.

EPA Considering Options
“EPA understands it needs to do something and is considering options now likely to be made at the administrative level,” Hornback said.

EPA spokeswoman Enesta Jones told BNA, “The agency is still meeting internally on this issue, and no decision has yet been made.”

At issue is the question of whether and under what circumstances treatment plants can allow wastewater to bypass the normal secondary stage of treatment, which typically uses biological methods, including bacteria, to treat the wastewater after the water has gone through primary treatment, which physically screens and separates biosolids.
This is a critical issue for the utilities, which contend that during heavy rains, treatment systems become inundated and are unable to handle the higher flow volume. In those cases, the plants want to divert some of the partially treated wastewater around the secondary treatment stage and blend the partially and fully treated water during discharge from the plant.

Proposed Policy Issued in 2005
EPA in 2005 released a proposed single sanitary sewer system “peak water flows” policy and guidance document, commonly referred to as the “blending” policy. After a comment period, it was sent to the White House Office of Management and Budget for review, but it was never approved or issued as final policy (70 Fed. Reg. 76,013, 12/22/05; (243 DEN, A-6, 12/20/05).

This proposal interpreted the Clean Water Act's 1979 “bypass" rule for sanitary sewers to clarify that the regulation would apply in all instances to wet weather diversions at publicly owned treatment plants serving separate sanitary sewers. A bypass is an “intentional diversion of waste streams from any portion of a treatment facility.”

According to Jones, the rule prohibits bypasses except where necessary for essential maintenance to assure efficient operation. For all other bypasses, the director of the National Pollutant Discharge Elimination System program may take enforcement action against a permittee for a bypass, unless:

• the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
• there were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime; and
• the permittee submitted the notices required by the regulation.

An anticipated bypass may be approved after considering its adverse effects if it meets these criteria, Jones said.
Essentially, the 2005 proposal said blending was considered a bypass and thus subject to the original rule's requirements that an “anticipated bypass” be approved only if there were “no feasible alternatives” to peak wet weather flow diversions around secondary treatment units, using an analysis set forth in the guidance.
The analyses and alternatives such as constructing additional treatment facilities are very costly, Hornback said. If they are now required, as EPA seems to indicate, it should be spelled out in writing in EPA final policy, he said.

Agency Objecting to Permits
He said states and EPA regions have abided by a patchwork of practices on blending for years without a final policy.
However, some regions, particularly Regions 7 and 10, recently have objected to state-issued permits they say may violate EPA's bypass rule and have requested more information and possible additional treatment. It appears EPA now is generally interpreting requirements to incorporate the “no feasible alternatives" provision in the 2005 proposal, according to Hornback.

Although a permit has not yet been overturned, Hornback said municipalities are concerned because they are reluctant to spend large sums of money on additional assessments and treatment without a final policy when the agency may put in place a different policy in the future.

The 1979 bypass rule has a provision indicating bypasses are allowed only if there are no feasible alternatives, but the rule does not mention peak wet weather flows. The rule states, “The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation.”

Hornback said the bypass rule, which EPA has referred to in recent policy discussions, was never meant to address peak wet weather flows but rather to allow a wastewater treatment to bypass, that is, blend, only for maintenance or emergencies.

In its 2005 proposed policy, EPA explicitly applied the bypass rule to wet weather events. The agency said its proposed policy “provides the agency's interpretation that the 40 C.F.R. 122.41(m), the bypass regulation, applies to peak wet weather diversions at POTW treatment plants serving separate sanitary sewer convenance systems that are recombined with flow from the secondary treatment units.”

Kris Lancaster, a spokesman for Region 7, told BNA in an e-mail, the region considers peak flow blending as a form of a bypass because it is a diversion of flows around a portion of a treatment plant.

“The region has taken the position that permits must meet the requirements of the bypass rules including a demonstration that there are ‘no feasible alternatives' to the bypass,” Lancaster said.

‘Significant Change' in Interpretation
Hornback called this position “a significant change in interpretation. It's huge.”

For decades, “utilities have been permitted to allow for blending. We need an articulation in a final statement,” he said.

The 2005 proposed policy and guidance significantly differed from a 2003 proposed policy, which would have allowed blending if certain criteria were met. The 2003 proposed policy said blending was not considered a bypass under the rule.

The 2003 proposal drew 98,000 comments, mostly negative, which expressed concern over potential human health risks if raw sewage wound up in the nation's waterways. It was subsequently withdrawn.

The 2005 proposed policy was the result of months of negotiations between NACWA and the Natural Resources Defense Council, which jointly helped develop the document.

Issue Called Long-Standing
Linda Eichmiller, executive director of the Association of State and Interstate Water Pollution Control Officials, told BNA the issue of whether blending can be allowed in state permits is a long-standing one, but it appears to have flared up.

She said it appears some states or localities think they have more flexibility than EPA now thinks they do. “[EPA] never finalized the policy,” she said.

An example of this disconnect is a situation in Lawrence, Kan.

In May and December 2008, EPA Region 7 issued interim objections to draft permits for a sewage treatment plant for the city. In its objections, EPA said it considered the diversion around the city's secondary biological treatment units to a chemical treatment unit called a “ballasted flocculation unit” to be a prohibited bypass. EPA said the effluent from the unit did not meet the minimum requirements for secondary treatment.

As part of the objection, EPA also requested an evaluation of whether alternatives to the wet weather diversions around the secondary treatment unit to the ballasted flocculation unit are feasible.

Mike Tate, chief of technical services for the Kansas Department of Health and Environment, told BNA the city installed the additional unit at a cost of $3 million to replace an extraneous flow lagoon.

Kansas Files Appeal
Tate said the state has appealed the objection and continues to treat its wastewater in a way it contends does not constitute a bypass under the rule. But the issue has not yet been resolved. The wastewater has consistently met safe water treatment requirements, Tate said, noting the unit was installed prior to EPA's proposed 2005 policy.

The Kansas Department of Health and Environment eventually got the attention of Sen. Pat Roberts (R-Kan.), who questioned EPA on the matter.

Responding to Roberts, EPA's Silva in an October 2009 letter commended Lawrence on its initiative to install additional treatment and said EPA is available “to provide advice and technical assistance to Lawrence as they evaluate the feasibility of alternatives to the bypass.”

An attachment to Silva's letter to the senator said, “Although the 2005 policy has not been finalized, it remains a viable path forward for utilities to meet their obligations under the bypass regulation.”

Nebraska Wants Formal Policy
Steve Goans, who handles water permitting for the state of Nebraska, also in Region 7, said Nebraska officials have never had an issue with wastewater treatment blending. The state does not allow it, he said.

But Goans said Nebraska officials do have an issue with EPA over what they believe are recent interpretation changes and want the agency to issue a formal written policy on blending.

Goans said Nebraska officials were among those who met a year ago with EPA officials from Region 7 and headquarters to discuss blending and the situation in Lawrence, Kan. He said EPA officials reiterated that the type of chemical treatment used in Lawrence was not an acceptable alternative to biological treatment.

“We disagree,” Goans said. “If we split the flow we do not believe that is blending or a bypass, but state officials have yet to see a written policy on this.”

The concern, he said, is that EPA might eliminate some options a municipality could provide that might not be considered biological treatment.

“I've asked [EPA] several times to be shown in federal regulations where it says you can't meet secondary treatment limits with other methods,” Goans said. If biological treatment cannot handle the entire flow and another secondary treatment is chosen to divert part of the flow, “we don't see a problem with that.”