This Week in Washington is a weekly publication of the Water Environment Federation’s Government Affairs department. It provides updates on the latest legislative and regulatory developments that affect the water and wastewater communities.

October 10, 2008

In this Issue:

• Nine States Challenge EPA Final Rule Allowing Water Transfers
• President Bush Signs Resolution Allowing States To Implement Great Lakes Compact on Water Diversions
• EPA Updates National List of Beaches Under the Beaches Environmental Assessment and Coastal Health Act
• EPA Proposes Rule on Data Requirements for “Down The Drain” Antimicrobial Pesticides
• New EPA Document Provides Guidance for Nutrient Removal
• Science Advisory Board Draft Report Urges Transparency in EPA Contaminant Listings
• Definition of Solid Waste Revised to Encourage Recycling
• WEF Webcast on NPDES Permit Program
• WEFTEC 2008 Government Affairs Committee Activities

Nine States Challenge EPA Final Rule Allowing Water Transfers
Nine states filed a lawsuit on October 2 accusing EPA of violating the Clean Water Act when it issued a rule saying that permits are not required for transfers of water from one body of water to another (New York v. EPA, S.D.N.Y., No. 1:08-cv-08430, 10/2/08).  In announcing the lawsuit, New York Attorney General Andrew Cuomo called the final rule "illegal" and said it could hurt the state's fishing industry and contaminate drinking water.  New York is the lead plaintiff in the lawsuit, filed in the U.S. District Court for the Southern District of New York. Joining New York were Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington. Cuomo's office said the province of Manitoba, Canada, also had joined the lawsuit, but the province was not listed in the complaint.  A companion lawsuit was filed in the U.S. Court of Appeals for the Second Circuit, according to Cuomo.  EPA is accused of creating a loophole in the Clean Water Act by refusing to control the transfer of polluted water from one water body to another, but federal courts have held that such transfers require regulation under the act.

The rule, at 40 C.F.R. Part 122, defines water transfers as an activity that conveys or connects waters of the U.S. without subjecting the transferred water to intervening industrial, municipal, or commercial use.  In the final rule issued June 9, EPA said Clean Water Act permits are not required for the water transfers because the transfers do not add pollutants to navigable waters. EPA said the final rule is based on a Florida Supreme Court legal interpretation of the Clean Water Act concluding that Congress generally did not intend to subject water transfers to regulation under the National Pollutant Discharge Elimination System program and that there is no "addition" of a pollutant that would trigger the requirement to obtain an NPDES permit. For more information on EPA's June 9 final rule on water transfers, contact EPA's Virginia Garelick at (202) 564-2316 or by e-mail at garelick.virginia@epa.gov.

President Bush Signs Resolution Allowing States To Implement Great Lakes Compact on Water Diversions
President Bush signed a congressional resolution (S.J. Res. 45)  on October 3 approving a multi-state agreement aimed at preventing diversions of water from the Great Lakes.  Approval of the resolution allows the eight states in the Great Lakes area to implement the Great Lakes-St. Lawrence River Basin Water Resources Compact.  The compact generally prohibits new diversions of water from the basin, while strictly regulating exceptions. It also requires states to use a consistent standard to review proposed uses of water from the basin and sets regional goals and objectives for water conservation and efficiency, to be renewed every five years.  The compact requires each state to develop and implement a water conservation and efficiency program and to balance economic development with sustainable water use, to ensure Great Lakes waters are managed responsibly.  Bills to ratify the agreement have passed the legislatures of all eight states bordering the Great Lakes: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.  Approval by federal authorities was necessary as well. The Senate approved the resolution on August 1, while the House of Representatives cleared the measure on September 23.

EPA Updates National List of Beaches under the Beaches Environmental Assessment and Coastal Health Act
EPA announced in the October 6 Federal Register that it has updated the National List of Beaches pursuant to Section 406(g) of the Clean Water Act (CWA) as amended by the Beaches Environmental Assessment and Coastal Health (BEACH) Act. Section 406(g) requires EPA to publish a list of discrete coastal recreation waters adjacent to beaches or similar points of access that are used by the public and to update the list periodically as new information becomes available. The list specifies whether the waters are subject to a monitoring and notification program consistent with the performance criteria (National Beach Guidance and Required Performance Criteria for Grants June 2002) EPA published under CWA section 406(a). The list contains information that coastal and Great Lakes States made available to EPA as of January 31, 2008, and it replaces the previous list that EPA published on May 4, 2004. The National List of Beaches provides a national baseline of the extent of monitoring of waters adjacent to beaches or similar points of access, which will allow EPA to measure State program performance in implementing the monitoring and notification provisions of the BEACH Act. Address all inquiries concerning this document to Lars Wilcut, Environmental Scientist, Office of Science and Technology, Mail Code 4305T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.  To view the Federal Register notice, visit: http://www.epa.gov/fedrgstr/EPA-WATER/2008/October/Day-06/w23555.htm.

EPA Proposes Rule on Data Requirements for “Down The Drain” Antimicrobial Pesticides
EPA announced a proposed rule in the October 8 Federal Register to revise and update the existing data requirements for antimicrobial pesticides. The proposed revisions are needed to reflect current scientific knowledge and current Agency regulatory practices, and to improve protection of the general population as well as sensitive subpopulations. The proposed requirements are intended to further enhance the Agency's ability to make regulatory decisions about the human health and environmental fate and effects of antimicrobial pesticide products.

Since many antimicrobial pesticides are typically rinsed down the drain, EPA has considered the potential impacts of pesticides that are discharged into wastewater treatment plants (WWTPs). This proposed rule addresses the issue of “down-the-drain” antimicrobials by proposing four new data requirements for use in a screening-level assessment on the fate of antimicrobials that reach a WWTP. To assess the impacts of this screening assessment and utility of the new data requirements for decision-making, EPA prepared four case studies which are contained in the docket for this proposed rule. The Agency specifically seeks comment on the proposed approach for evaluating the potential impact of antimicrobial pesticide chemicals on WWTPs and non-target organisms in receiving water bodies, and on the case studies, including the assumptions used in those studies that were used to develop the proposed approach. EPA will consider comments specific to the case studies along with comments on the proposed approach, as the Agency evaluates the use of the proposed approach for down-the-drain antimicrobials in the final rule for antimicrobial data requirements. Comments must be received on or before January 6, 2009. To view the Federal Register notice, visit: http://www.epa.gov/fedrgstr/EPA-PEST/2008/October/Day-08/p23127.htm.

New EPA Document Provides Guidance for Nutrient Removal
On October 7, EPA released the Municipal Nutrient Removal Technologies Reference Document for utility owners and operators, state permit writers, and regulators to help plan cost-effective wastewater treatment nutrient removal projects. High nitrogen and phosphorus discharges have been a major concern for wastewater treatment plants because these nutrients cause overgrowth of algae leading to dead zones. Conventional biological treatment processes do not substantially remove phosphorus or nitrogen; therefore, this document provides the various technologies available to remove nutrients reliably and cost-effectively, and cites factors for consideration when upgrading existing plants. The two volume report contains detailed technical information and costs for both biological and physiochemical treatment processes, as well as nine case studies that examine factors for successful process design and operation. For a copy of the report, visit the publications section at: http://www.epa.gov/owm/mtb/.

Definition of Solid Waste Revised to Encourage Recycling
EPA issued a final rule on October 7 under the Resource Conservation and Recovery Act (RCRA) which streamlines regulation of hazardous secondary materials when they are recycled by reclamation. EPA's regulation maintains strong protection of human health and the environment by limiting the streamlined requirements to specific, legitimate recycling activities.  The rule excludes materials from the federal hazardous waste system that are: generated and legitimately reclaimed under the control of the generator; generated and transferred to another company for legitimate reclamation under specific conditions; or determined by EPA or an authorized state to be non-wastes on a case-by-case basis via a petition process.   The rule also contains a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations. These exclusions are not available for materials that are considered inherently waste-like, used in a manner constituting disposal, or burned for energy recovery.  EPA estimates that about 5,600 facilities handling approximately 1.5 million tons of hazardous secondary materials annually may be impacted by this rule. The activities most affected are metals and solvent recycling. EPA estimates that the regulation will save approximately $95 million per year for the affected industries.  For more information about the Definition of Solid Waste Rule: http://www.epa.gov/epawaste/hazard/dsw/index.htm. To read this rule, visit: http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm.

Science Advisory Board Draft Report Urges Transparency in EPA Contaminant Listings
According to a Science Advisory Board Drinking Water Committee draft report released on October 7, EPA's process for developing a list of unregulated drinking water contaminants has improved but "still lacks transparency," EPA's Office of Water had asked the Science Advisory Board Drinking Water Committee to provide advice on its third drinking water contaminant candidate list (CCL 3) and the process used to derive it. Candidates on the list will be considered for regulatory action.  The Science Advisory Board is scheduled to meet October 28 to discuss the SAB Drinking Water Committee's draft report.  In February, EPA announced the draft third contaminant candidate list and described the process and rationale used to develop it (73 Fed. Reg. 9628, 2/20/08).  The process EPA used to develop CCL 3 "represents a major improvement" from those used to generate the two previous lists of contaminant candidates, according to the committee draft. In addition, while the first two lists relied heavily on expert opinion, the process for developing CCL 3 uses a data-driven, systematic approach.

The draft CCL 3 includes 93 chemicals or chemical groups and 11 microbiological contaminants that have been known or anticipated to occur in public drinking water systems, according to the agency. The list includes chemicals used in commerce, pesticides, biological toxins, disinfection byproducts, and waterborne pathogens.
The committee recommended that EPA document and justify why certain contaminants that were included on previous lists were excluded.  The Safe Drinking Water Act requires EPA to publish a contaminant candidate list every five years. EPA uses this list of unregulated contaminants to set priorities for research and data collection to help determine whether to regulate a specific contaminant. The list is published after consultation with the scientific community.  For more information, visit: http://yosemite.epa.gov/sab/sabpeople.nsf/WebCommittees/BOARD.

WEF Webcast on NPDES Permit Program
The Water Environment Federation is hosting a webcast on October 28 from 12:00 pm – 2:00 pm Eastern Time to review the current status of the National Clean Water Act’s flag-ship program, the NPDES Permit Program and actions useful to strengthen that program and its implementation.  Topics include: Integrated Water Quality Management Planning: Using watershed-based permitting and the non-point source program to achieve environmental progress; Permit-enforceable long-term compliance schedules; Streamlining EPA oversight of state administered NPDES permit programs; The future of funding for strengthening state-authorized NPDES programs; Nutrients and emerging contaminants: current challenges, future strategies; The Industrial Pretreatment Program: improving its effectiveness; and Model permit language: an option for strengthening permit implementation. The registration fee is $155 for WEF members and $195 for non-members.  The deadline for registration is October 24.  To register on-line, visit: http://www.e-wef.org/Timssnet/Meetings/tnt_meetings.cfm?primary_id=08WCOCT&Action=LONG&subsystem=MTG.

WEFTEC 2008 Government Affairs Committee Activities
Several WEF Government Affairs Committee and Work Group meetings and sessions will be held during WEFTEC.08 in Chicago, IL. For a complete listing of WEF Government Affairs Committee activities, please visit the link on the WEF web page: http://www.wef.org/MembershipCareers/MembershipInformation/CommitteeList/GovernmentAffairsCommittee.htm.

Quote of the Week
A man should not leave this earth with unfinished business. He should live each day as if it was a pre-flight check. He should ask each morning, am I prepared to lift-off?
- Diane Frolov and Andrew Schneider, Northern Exposure, All is Vanity, 1991

This Week in Washington is provided by the Water Environment Federation, Alexandria, VA and is available on-line at www.wef.org/GovernmentAffairs/TWIW.   To receive by e-mail, contact Sam Hadeed at shadeed@wef.org.