Enforcement Concerns Trigger Worries for Nutrients Survey

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By Amena H. Saiyid

Nov. 23 — Wastewater utilities shouldn’t be compelled to respond to a national survey of their nutrient removal practices, state and water utility officials told the Environmental Protection Agency, citing concerns the information could be used for enforcement purposes.

Rather, the EPA should seek an alternative approach to gather information about the range and effectiveness of secondary treatment processes from utilities, wrote Peter LaFlamme, director of the Vermont Watershed Management Division who also is the president of the Association of Clean Water Administrators.

The EPA in late September announced plans to survey nutrient removal practices at 15,000 wastewater utilities by invoking Section 308 of the Clean Water Act, which compels a response. This method of information gathering is normally used by the EPA prior to enforcement proceedings and has been roundly criticized by groups representing state water officials and publicly owned wastewater utilities in comments to the agency.

“Providing this type of information via Section 308 has raised serious concerns regarding future enforcement, despite EPA’s assurances that it only intends to use this information for research purposes,” wrote Chris Hornback, chief technical officer at the National Association of Clean Water Agencies, which represents public wastewater and stormwater utilities.

Called Unneeded ‘Overreach’

Terming it an “unnecessary overreach,” he said the national utility group was supportive of efforts to understand and improve performance of nutrient removal at municipal wastewater treatment facilities. NACWA’s opposition to this particular effort, he said, stems from the exposure of its members to significant legal requirements and liabilities.

LaFlamme stopped short of spelling out an alternative to the EPA but instead wrote “ACWA would be happy to assist EPA as it considers an alternative approach to using § 308 authority to compel response to the survey.”

Wastewater utility operators said a collaborative approach rather than a confrontational one would be more useful in gleaning responses.

‘Flesh’ out Alternative

Julia Anastasio, ACWA executive director and general counsel, told Bloomberg BNA Nov. 23 that the association has scheduled a conference call with a small group of its members for the week of Nov. 28 to flesh out this very question.

Excessive levels of nutrients—the collective name for nitrogen and phosphorus compounds—can lead to a variety of problems, including promoting algae growth that, in turn, leads to low oxygen levels, or hypoxia, causing fish kills. The algal blooms are of various types and include the harmful blue-green algae that were responsible for contaminating drinking water supplies in Toledo, Ohio, in 2014.

The EPA attributes most nutrient pollution in the nation’s waters to stormwater and agricultural runoff and wastewater discharges. The agency said the survey would provide a database of cost-effective, nutrient-removal practices during secondary treatment of wastewater at public utilities.

State water officials said they recognize that the EPA wants a statistically significant sample of responses because a voluntary survey could result in a low or unrepresentative survey response rate, but they question the need for invoking Section 308.

Threat of Penalty

“ACWA members are concerned that if [publicly owned treatment works] owners and/or operators are unable to answer the survey they will be penalized and that the potential penalty for non-response has yet to be explained by EPA,” LaFlamme wrote.

Jaime Gaggero, director of the Kansas Department of Health and Environment’s Bureau of Water, warned that the EPA’s use of Section 308 authority “threatens to generate a backlash that might not reach EPA, but certainly will consume BOW staff resources and put in jeopardy positive relationships between the state and the regulated community.”

In NACWA’s comments, Hornback said “discussion of ‘fines and imprisonment’ in the certification statement set an immediate negative tone for the entire data collection process.”

The EPA would get better results if it collaborated with states and water sector groups to get the statistically significant responses it seeks to draw a national picture of nutrient removal practices, he said.

More Technical Aid Needed

More importantly, NACWA said the agency would help wastewater utilities more by providing technical assistance to improve nutrient removal operations rather than requiring utilities to spend all that time and resources to collect information on practices at each of their plants.

The National Rural Water Association also recommended voluntary collaboration, outreach training and on-site technical assistance to ensure compliance with the questionnaire versus enforcement and civil penalties.

Wastewater utilities also are concerned because the EPA is asking wastewater utilities to identify if they are diverting wastewater flows during heavy rains. This is because the EPA has continued to enforce its wet weather policy of not allowing utilities to blend partially and fully treated wastewater inside treatment plants beyond the legal jurisdiction of the U.S. Court of Appeals for the Eight Circuit, which struck this policy down in 2012.

The Hampton Roads Sanitation District questioned the basis for the survey, saying the study of finding nutrient removal practices at wastewater treatment plants doesn’t address the major source of nutrient pollution, which is agriculture.

“This infers that the intent of the study is to regulate POTWs more stringently than today rather than addressing the actual stressors to a watershed,” wrote James Pletl, water quality director for the Hampton Roads utility.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Comments identified by Docket I.D. No. EPA-HQ-OW-2016-0404 on the EPA’s notice of information gathering are available at http://regulations.gov .

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