Should EPA Set Pretreatment Standards for BOD and Other Conventional Pollutants?

On January 23, EPA published a proposed rule to update the effluent guidelines and establish pretreatment standards for the Meat & Poultry Products (MPP) category which would address conventional pollutants. While the majority of clean water utilities probably do not have a MPP industrial user in their service area, these pretreatment standards, if finalized as proposed for conventional pollutants, could have serious implications for all pretreatment programs in the future. 

EPA proposed three options for pretreatment standards for new and existing MPP facilities. Option 1 would establish limits for BOD, TSS, and oil and grease based on screening and dissolved air flotation (DAF) technology, with applicability to different thresholds of production. Option 2 is the same as Option 1, with pretreatment standards added for nitrogen and phosphorus, with applicability depending on subcategory and production levels. Option 3 is the same as Option 2, but applicable to all facilities producing more the 30 million lbs/year.

While pretreatment programs should certainly be aware of the BOD, TSS, and oil and grease discharges from MPP facilities, and limit them as needed, a pretreatment standard for these conventional pollutants would set a harmful precedent. Federal pretreatment standards are established for chemicals that would cause pass through or interference with the treatment processes, or if chemicals pose a danger to workers or harm the quality of biosolids. POTWs were designed to treat conventional pollutants, and if a POTW is not meeting its permit limits for conventional pollutants, then the POTW and the enforcement authority need to reexamine the local limits and evaluate treatment capacity and processes.

EPA notes in the proposed rule that many POTWs need the BOD loading from MPP facilities for their treatment processes, and suggests that “POTWs that perform denitrification may want to waive BOD limits for their MPP industrial users so they can receive more carbon to support bacterial conversion of nitrates to nitrogen gas.” POTWs can charge MPP facilities for their BOD discharges, reducing the burden on their ratepayers.

Although NACWA appreciates the intent of EPA suggesting waivers, it is not only POTWs that perform denitrification that may want to waive BOD limits. Rather than creating an entirely new and complicated waiver process for a conventional pollutant, EPA should not set unnecessary pretreatment standards for these pollutants.

Pretreatment standards for nutrients, as proposed in Options 2 and 3, would cause significant expenses for MPP facilities and require a larger physical footprint than is available at some facilities. EPA is aware that the proposed options would force some MPP facilities to close. Utility pretreatment programs pride themselves on working with industries to find solutions that enable businesses to continue operating and providing economic and employment benefits. NACWA members have reported that they successfully regulate their MPP facilities without needing federal pretreatment standards, and other industries with higher levels of BOD and TSS than MPP do not have pretreatment standards. As one of NACWA’s members put it, the proposed rule seems to be trying to fix a problem that doesn’t exist.

EPA’s proposal, particularly for conventional pollutants, raises questions about the purpose of the federal pretreatment standards. Federal pretreatment standards provide a useful regulatory mechanism for local utilities to control discharges of harmful pollutants to their POTWs. They level the playing field across the country, setting an important and uniform minimum standard so that industries cannot “shop around” for locations where environmental standards may be weaker. Conventional pollutants such as BOD, TSS, and oil and grease are not inherently harmful to the treatment process and should not pass through it, since POTWs are designed to treat these pollutants. Utilities’ pretreatment programs, rather than federal standards, should therefore control these conventional pollutants, since they understand best the capacity and processes of the treatment plant.  

NACWA will submit comments on the proposed pretreatment standards by the March 25 deadline.  Please contact me if you have any questions about the proposed rule or input for our comments.

Contact Cynthia Finley, NACWA’s Director of Regulatory Affairs for more questions.

Top Stories

EPA Releases New Draft Guidance on Post-LTCP CSO NPDES Permitting

EPA has published for public comment its long-awaited draft guidance document, Guidance for Future National Pollutant Discharge Elimination System (NPDES) Permits for Combined Sewer Systems. 

The guidance document outlines permitting options for communities that have successfully completed a long-term control plan (LTCP) and are attaining its performance objectives pursuant to the 1994 Combined Sewer Overflow Control Policy (CSO Policy), but whose receiving waters are nevertheless not attaining water quality standards (WQS). 

As anticipated, the guidance leans heavily on EPA’s 2012 Integrated Planning Framework as a potential path forward for such communities to first address non-CSO discharges contributing to exceedances of WQS where documented analyses show that limiting such discharges will yield greater environmental improvements than pouring more money into remaining CSOs. 

The guidance also notes the two other pathways for communities outlined in the CSO Policy where WQS are not being met: (1) imposition of additional CSO controls, or (2) adoption of new or revised WQS, in the form of either variances or changed designated uses, to better reflect the highest attainable water quality conditions achievable following completion of an LTCP.   

The latter option, which the CSO Policy clearly contemplates but which the vast majority of states have been either unwilling or unable to implement, would work in conjunction with another recently-issued EPA Office of Science and Technology (OST) memorandum,  CSO Temporal Recreational Uses or WQS variances based on 40 CFR 131.10(g)(3). 

In addition to addressing the issue of non-attainment of WQS, the guidance also provides information to permit writers on taking environmental justice and climate change considerations into account following LTCP completion.  In doing so, the guidance stresses the need to assess the location of remaining CSOs in relation to underserved areas, and to update “typical year” estimates and analyses to ensure that CSO controls continue to meet performance objectives in the wake of sea level rise and increased rainfall and flooding risks.   

While the guidance provides some helpful options for combined sewer system communities nearing completion of their LTCPs, NACWA also has concerns with several of its provisions, particularly when coupled with the problematic recent OST WQS memorandum.   

Comments on the draft guidance are due on March 21, 2024.   

NACWA will be providing members with a more detailed analysis of both documents soon, as well as asking for an extension of the comment period.  In the interim, please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.   

Water Sector Meets with OMB on Pending Proposed PFAS CERCLA Hazardous Substance Designations

NACWA teamed up with members of the Water Coalition Against PFAS, including the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the National Association of Water Companies (NAWC), the National Rural Water Association (NRWA), and the Water Environment Federation (WEF), to discuss the potential impacts EPA’s proposed designations of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) would have on clean water and drinking water utilities. 

Stressing the role of utilities as environmental stewards and the need to protect passive receivers and the communities they serve from bearing the burden of PFAS cleanups, the sector asked the White House Office of Management and Budget (OMB) to undertake a comprehensive analysis of the true costs the proposed designations would have on water, wastewater, and stormwater utilities.   

NACWA thanks NACWA Board Member Mike Witt, General Counsel at the Passaic Valley Sewerage Commission, and NACWA Legal Affairs Committee Co-Chair Devon Goodrich, Senior Counsel at the Environmental Law Division, New York City Law Department, for carrying the message of clean water utilities to OMB, and for their significant continuing efforts on behalf of the sector on this critical issue. 

NACWA will continue working with the Water Coalition Against PFAS on its strong legislative push to obtain an exemption for water, wastewater, and stormwater utilities from potential CERCLA liability for PFAS contamination and will keep members apprised of any important developments as they occur.   

Please contact NACWA General Counsel, Amanda Aspatore with any questions.   

Energy & Resource Recovery

DOE Hosts Workshop on Wastewater Treatment Greenhouse Gas Emissions

The U.S. Department of Energy (DOE) Office of Energy Efficiency and Renewable Energy, Industrial Efficiency & Decarbonization Office (IEDO) hosted a January 23-24 workshop, Measuring Life-Cycle Greenhouse Gas (GHG) Emissions from Water Resource Recovery Facilities.  The event was attended by representatives from many NACWA public agency and affiliate members.   

The purpose of the workshop was for IEDO to gather input from experts on how to reduce the uncertainties about the quantities of direct and indirect GHG emissions from the full wastewater treatment life-cycle, from the collection system to effluent discharge and biosolids management.   Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Regulatory Policy

NACWA Participates in EPA Listening Session on Affordability Issues

EPA’s Environmental Financial Advisory Board (EFAB) held a public listening session on February 20 to receive input on issues around water affordability.  EFAB was recently given a charge by EPA to look at water affordability issues and will be examining a number of different elements over the coming months.  The most recent listening session focused on what kinds of innovations and new technologies can reduce the cost of capital projects and help address affordability concerns.   

NACWA provided comments during the listening session, both orally and in writing, and noted that while new technologies can play an important role in reducing utility costs, there also needs to be an appropriate regulatory climate that encourages utilities to try innovative technologies. Read the full story in the Clean Water Current.

Contact: Nathan Gardner-Andrews at 202/833-3692 or Nathan Gardner-Andrews.

EPA Issues Memorandum Limiting Clean Water Act Flexibilities for Combined Sewer System Communities

In a disappointing development, EPA’s Office of Science and Technology (OST) issued a memorandum on January 19 to the Water Division Directors of all 10 EPA Regions which will make it more difficult for combined sewer system (CSS) communities to utilize certain key Clean Water Act (CWA) flexibilities upon successful completion of a combined sewer overflow (CSO) long-term control plan (LTCP). 

The memo, “CSO Temporal Recreational Uses or WQS variances based on 40 CFR 131.10(g)(3),” provides instructions to EPA Regions concerning when they can approve a proposed change to state water quality standards – either through the adoption of a temporal recreational use change or a variance – in circumstances where a utility has achieved significant CSO reductions through successful completion of an LTCP, but water quality standards are nevertheless not always being attained.   

Far from helping to facilitate the types of standards changes contemplated by the 1994 CSO Control Policy in such instances, the memorandum will likely make it even more difficult for utilities to pivot away from pouring limited community dollars into CSO controls that do not provide tangible environmental benefits. Read more in the Clean Water Current.

Contact: NACWA General Counsel, Amanda Aspatore . 

Water Quality

NACWA Comments on EPA’s Proposed Water Quality Standards in the Delaware River

In comments submitted to the U.S. Environmental Protection Agency (EPA) on February 20, NACWA raised concerns with a proposed rulemaking to change the wording of a designated use to protect the propagation of the federally-endangered Atlantic Sturgeon and the requirement to meet more stringent dissolved oxygen standards along the Delaware River.

If finalized, clean water utilities discharging along specific reaches of the Delaware River – including a number of NACWA members – will have to install costly advanced treatment technology to remove ammonia nitrogen to meet more stringent dissolved oxygen standards. Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202/533-1839 or Emily Remmel.  

NACWA Weighs in on Nutrients Impacts from EPA’s Proposed Lead and Copper Rule

In comments submitted to EPA on February 5, NACWA again raised nutrient concerns with the mandate that all public water systems add orthophosphate as an optimal corrosion control technology to minimize corrosion in pipes. EPA’s proposed Lead and Copper Rule Improvement (LCRI), which was published on December 6th and builds on the Agency’s previous Lead and Copper Rule Revisions from 2021, includes concerning requirements regarding orthophosphate. Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202/533-1839 or Emily Remmel.