» Regulatory Alerts Archive

The U.S. Environmental Protection Agency (EPA or Agency) is reinterpreting how its decades-old bypass regulation applies to the blending of peak flows.  This is causing serious problems for NACWA members in Region 7 and will soon impact other utilities across the country.  NACWA is working with its affected members and has initiated a formal dialogue with EPA Office of Water officials to identify a solution.

This Regulatory Alert provides an overview of EPA’s new interpretation, how it is being applied in the permitting context, and NACWA’s efforts to change EPA’s current approach.

EPA Applying a New, More Stringent Interpretation of ‘Bypass’

EPA Headquarters is now directing its Regions to apply the existing bypass regulations (40 CFR § 122.41(m)) whenever wastewater treatment plant flows are not receiving full ‘secondary treatment’ (i.e., not meeting the 30-day average standards for total suspended solids, biochemical oxygen demand, and percent removal).  To date, EPA is only applying this new interpretation to clean water utilities that blend peak wet weather flows, but it could have broader implications for utilities and other Clean Water Act-regulated entities.  While EPA has not yet officially objected to a permit based on this new interpretation, it has indicated its intent to object to a permit in Region 7 if the permit is issued by the state as currently written.  In that case, the utility has already installed a physical/chemical parallel treatment process (ballasted flocculation) to handle its peak flows.  EPA has indicated that since the parallel treatment process cannot meet the full secondary treatment standards before recombination with the remaining treatment plant flows, the treatment process is considered a bypass. 

Where EPA has made a determination that a utility is ‘bypassing’ peak wet weather flows, it is requiring the utility to conduct a no feasible alternatives analysis, based on the Agency’s 2005 draft peak flows policy, before the wet weather treatment process can be authorized in the permit.

NACWA Working to Seek Clarification from EPA, Change to Permitting Approach

NACWA met May 28 with EPA Office of Wastewater Management officials to discuss the Agency's new interpretation and its current approach to addressing peak flow blending.  NACWA’s primary concern is that EPA has not notified state permitting agencies or utilities in writing of its new interpretation.  Many utilities are planning the construction of these parallel treatment trains either at the direction of their permitting agency or via a consent decree, yet few if any states or utilities are aware that EPA now considers the discharges from treatment plants employing these processes to be illegal.  NACWA emphasized during the meeting that many clean water agencies, lacking clear guidance from the federal government, did the 'right thing' and invested in treatment for their peak flows.  To now penalize those agencies for putting into place technology that their states encouraged and that EPA itself has shown to be effective at treating peak flows simply does not make sense.  NACWA is strongly urging EPA to put in writing its interpretation of the bypass and secondary treatment regulations, which will at least provide an opportunity for NACWA’s members to react to and potentially work with EPA to find a mutually acceptable solution.

NACWA is already on the record with the EPA Administrator regarding this issue.  In a May 1 letter  to EPA Administrator Lisa Jackson, NACWA requested that EPA instruct its Headquarters and Regional Office staff to discontinue using the 2005 proposed peak flows policy for the purposes of issuing Clean Water Act permits.  The proposed policy, based on the negotiated agreement between NACWA and the Natural Resources Defense Council (NRDC), has yet to receive approval from the White House’s budget office.  The policy did not contemplate the definition of bypass or the status of physical/chemical treatment trains, but proposed a process for utilities to evaluate their options for handling wet weather flows.  Facing increasing enforcement pressure, an anti-blending public relations campaign, and the growing congressional support for national legislation that would have banned the practice of blending, the negotiated agreement was critical to preserving blending as a management tool for peak flows.  In December 2008, NACWA requested clarification of EPA’s current position on blending in a letter  to Benjamin Grumbles, then the EPA assistant administrator of water, but EPA has yet to respond directly to the letter.  NACWA is working to set up a meeting with the likely incoming Assistant Administrator for Water Peter Silva to discuss the issue of blending.

At a minimum, NACWA is seeking relief for those utilities that have already constructed these parallel treatment facilities and are now up for permit renewal.

NACWA Prepared to Take Legal Action if Necessary

NACWA has always maintained the position that blending is authorized by federal regulation.  Previously, when certain EPA regions informally objected to the use of blending, NACWA consistently advocated its position in the courts.  Most notably, in the case of Pennsylvania Municipal Authorities Association, et al. v. EPA, NACWA was part of a coalition that appealed this precise issue – whether blending is a bypass – to the United States Court of Appeals for the District of Columbia Circuit.  In that case, NACWA and others argued that, when EPA promulgated the bypass regulation at 40 CFR § 122.41(m), the agency never indicated any intention to prohibit blending under the bypass rule.  NACWA also argued that, if EPA tried to use the bypass regulation to eliminate blending, it would be doing so without properly establishing a regulation in accordance with the Administrative Procedure Act and in contravention of the Unfunded Mandates Reform Act.  That case ended in September of 2004 when the Circuit Court for the District of Columbia upheld a District Court’s decision that “until something more happens to them (e.g. permit denials or a national EPA guidance document …), these municipalities cannot claim final agency action by EPA.”  Should EPA now take such final agency action or commence a related enforcement action in Region 7, NACWA is fully prepared to once again take the dispute back to court.

Peak Flows Policy and Potential for National SSO Policy

NACWA has been urging the Agency to develop a comprehensive national policy for sanitary sewer systems, similar to what was done for combined sewers in the 1990s, which would address the issue of blending but, perhaps more importantly, the critical issues of overflows, peak excess flow treatment facilities, collection system management, among others.  Development of such a broad-based policy was not viable in the previous administration.  NACWA understands that the Office of Water may again be considering work on a comprehensive national policy for sanitary sewer systems, which could address overflows, blending, and other wet weather-related issues.  NACWA welcomes a meaningful dialogue with EPA and other stakeholders on all the issues surrounding sanitary sewer system management.  Until a comprehensive national policy can be developed, NACWA will work with EPA and its members to find a workable solution for ensuring that blending can be authorized in a Clean Water Act permit.