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NCLM News & Political Report

As legislative activity subsided late in the summer, the activities involving the League's membership policy committees ramped up. The committees spent the last few months directing the League's policy development process by discussing advocacy goal proposals and making recommendations to the League Board of Directors for the policy agenda for the 2015-16 biennium. Two of these committees evaluated environment-related goals: the Regulatory Action Committee and the Planning & Environment Legislative Action Committee.

At its October meeting, the League's Board reviewed the policy suggestions of the committees and voted to recommend 41 legislative goals, 7 regulatory goals, and 2 federal goals to the League's full membership. Next, the membership will have the opportunity to vote on these goals at the League's day-long Advocacy Goals Conference on December 11 in Raleigh, narrowing down the list even further and finalizing the legislative and regulatory goals package to guide League staff during the upcoming legislative biennium.

Regulatory Technical Assistance Fund (REG-TAF)

At their meeting, Board members also approved the formation of the advisory committee for the Regulatory Technical Assistance Fund (REG-TAF). Formed in the spring, REG-TAF is a voluntary, annual joint action program created to protect N.C. municipalities’ collective interests by hiring external technical support for water quality and electric regulatory issues. Over 75 municipalities have already joined REG-TAF and committed over $70,000. Funds will be expended at the direction of the advisory committee, which will be comprised of members of the League’s Board of Directors and the Regulatory Action Committee.

CityVision 2014

In addition to their meeting, the League's Board joined the League membership at CityVision 2014, the League's annual conference held last week in Greensboro. CityVision 2014 was a great time and a great success, with attendees getting the chance to learn from a range of panel discussions, educational sessions and informative speakers. The conference focused on cities charting their future and included sessions to facilitate the League's own visioning process, a process to help determine what actions are necessary to position municipalities to achieve their own visions for success both in the near future and beyond, to 2030. That visioning process will culminate in the spring of 2015.

At the conference, Senator Gene McLaurin of Rockingham and Representative Andy Wells of Hickory were recognized as recipients of the League's Community Champion Award for 2014. The League presents the award to legislators who make strong efforts to work with municipal officials and ensure that municipal interests are represented during the legislative process. The League also presented its inaugural General Assembly Ambassador award to Legislative Assistant Mary Marchman of Raleigh. The award is to recognize a legislative staff member for professionalism and selflessness while carrying out his or her duties at the Legislature.

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Standards Drive Water Quality Sampling, Municipal Officials Learn

Representatives of several dozen municipalities that operate permitted wastewater treatment plants gathered last month to learn some of the challenges and opportunities for change in conducting tests on the water quality of their rivers and streams. Ultimately, they learned about differences in state and federal interpretations of water quality monitoring information and how decisions based on their water testing programs may potentially affect future permit conditions. In many parts of the state, local government-funded monitoring coalitions fulfill the need to gather water quality data.

New Monitoring Procedures

Organized by the N.C. Division of Water Resources (DWR), the meeting was held to review potential new monitoring procedures required by updates to the state's surface water quality standards. The N.C. Environmental Management Commission will likely adopt those new standards as rules next month as part of its long-running triennial review process.

Because the new surface water quality standards represented a significant departure from the current standards, the number of samples needed from monitoring coalitions may increase. However, DWR stated that many details of the changes in new surface water sampling strategies remained under consideration, such as the frequency of samples required to be measured. For example, with new standards for metals being expressed as "acute" measurements, samplers must take two samples in one hour; with new standards expressed as "chronic" measurements, samplers must take four samples within a 96-hour window. DWR officials said they were still discussing when within those windows of time a sample must be taken.

In other potential changes to water quality testing, monitoring coalitions may also assume responsibility for measuring more variables (or "parameters"), such as hardness, due to the standards updates. In addition, the techniques used to gather samples for parameters such as mercury may involve more precise, "clean" techniques that will reduce error rates in the sampling.

Many of these changes could increase costs to municipalities holding wastewater discharge permits; those permits typically require testing of water quality both upstream and downstream of discharge points.

At the meeting, DWR staff also explained that, because the new metals standards would shift from measuring "total" metals to "dissolved" metals, data collectors would now filter water quality samples in the field. Basing standards on dissolved metals measurements -- a move pushed by the U.S. Environmental Protection Agency -- allows the State to more accurately measure how toxic metals affect aquatic life. The accuracy comes because only the portion of the metal that dissolves in the waters affects fish and other aquatic life. In most cases, only a fraction of the metals discharged into bodies of water actually dissolves.

Relationship of Monitoring to Other Program Elements

The need to monitor different water quality parameters, such as dissolved oxygen, chlorophyll-a, pH, copper, cadmium, and nickel, derives from several different aspects of the state's comprehensive water quality program, as shown in the figure below.

Primarily, the State and its partners, like local government-funded monitoring coalitions, collect and analyze samples to fulfill the following components of the comprehensive water quality program:

  • Water Quality Standards. Water quality standards dictate the parameters that must be monitored and the concentration of those parameters that a receiving stream can tolerate. In turn, the data collected through those efforts can inform future adjustments to the standards.
  • Permits. Wastewater discharge permits issued under the National Pollutant Discharge Elimination System program often require monitoring of discharges and of any waters receiving those discharges to ensure compliance with the permit and to ensure that receiving streams do not become impaired. In turn, the data collected pursuant to this requirement may be used to adjust future permit limits.
  • 303(d) list. The State's 303(d) list of impaired waters details which stream segments are not meeting water quality standards by identifying the specific parameter(s) that may have caused the impairment. For example, a stream may be impaired for both copper and chlorophyll-a. In turn, once DWR lists a stream as impaired on the 303(d) list, it conducts follow-up sampling of those waters to determine if management measures ultimately improved the water quality.

DWR runs a multi-faceted water quality program driven by the federal Clean Water Act (CWA). Figure 2 below illustrates the relationships between these program elements, which are explained further below.

While monitoring and data collection represents an integral part of the program, as explained during last month's meeting, the fundamental driver of each aspect of the program is the state's water quality standards. Ultimately, the different program elements combine to create permit limits. Permit limits dictate many decisions made by municipalities that provide wastewater treatment services, from the system's collection pipes and pump stations to the treatment process used in wastewater plants to the type of lab services needed to comply with permit requirements. The path from water quality standards to permit limits may also take a detour through the use support analysis/303(d) listing/TMDL process.

  • Water quality standards. Water quality standards include both (1) a description of the best uses of a water body and (2) the criteria to meet those standards. All other aspects of the water quality program are influenced by and point back to the standards.
  • Use support assessment. DWR performs a use support assessment for each water segment "assessment unit" for which it has verifiable data. During this assessment, DWR determines (1) whether the segment's best uses are impaired, and (2) whether the segment's water quality standards are attained.
  • 303(d) list. If a water body does not attain the applicable water quality standards, DWR places that segment on the 303(d) list of impaired waters.
  • TMDL. Based on available resources, DWR develops clean-up plans for impaired segments. Called "total maximum daily loads" (TMDLs) under the CWA, these clean-up plans place caps on discharges to those waters.
  • Monitoring. Explained in detail below Figure 1.
  • Permits. Wastewater dischargers receive permit limits based on a number of inputs, including: applicable water quality standards, caps contained in TMDLs, and the results of monitoring efforts. Ultimately, permits allow treatment plants to discharge without otherwise violating the CWA.

Due to the bottom-line effect of these different CWA program elements on wastewater treatment permits and processes, the League remains engaged on a number of related regulatory actions, including updates to the water quality standards under the triennial review, the 303(d) list and methodology used to develop it, and development of specific TMDLs (mercury TMDL, nutrient management strategies, stormwater TMDL).

Beyond wastewater treatment costs, the State and its local communities face further restrictions on economic development from having a stream listed on the 303(d) list. These restrictions occur because a 303(d) listing prevents any additional wastewater discharges, such as those from industries, beyond those tolerated by the receiving waters while still remaining in compliance with the water quality standard.

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Dental Amalgam Rule Attempts to Control Mercury

The U.S. Environmental Protection Agency (EPA) recently announced its proposed rule to require dental offices to remove 99 percent of dental amalgam from their wastewater discharges, requiring technology-based pretreatment standards for discharges of pollutants into publicly owned treatment works (POTWs). POTWs have expressed concerns regarding the implementation burden of the rule caused by increased inspection and enforcement requirements of adding dentist offices to their pretreatment programs.

The proposed rule was an attempt to control the amount of mercury discharged into waters by targeting one source of the contaminant -- dentists. When dentists remove old fillings from cavities, mercury or dental amalgam enters the wastewater of the dental office. EPA's fact sheet stated that mercury is a persistent and bioaccumulative pollutant that effects human health. When in water, certain microorganisms can change mercury into dangerous methylmercury, which builds up in fish and shellfish, exposing methylmercury to humans, the fact sheet states. Although not required by the rule, it is likely most dentists will install dental amalgam separators as a way to comply with the 99- percent numeric limit in the rule.

In regards to this proposed rule, POTWs have concerns about adding more than 100,000 new users to the pretreatment program, creating excessive inspection and enforcement requirements. In comparison, the current pretreatment program only regulates about 620 significant industrial users (SIU) nationwide. The national pretreatment program was created as part of the federal Clean Water Act to protect POTWs' treatment processes from non-domestic waste. POTWs are typically designed to treat conventional pollutants but are not designed to treat concentrated or toxic pollutants. As part of the pretreatment program, detailed monitoring of SIUs is required of POTWs.

POTW Concerns with Rule Proposal

In addition to the vastly expanded inspection and enforcement effects of the rule, POTWs pointed out that some areas of the country report low mercury loads. In the absence of elevated mercury levels, they said the costs for a POTW associated with maintaining a dental amalgam program would not be justified by the environmental benefits.

To address some of these concerns, the proposed rule would create a dental industrial user (DIU) category in EPA's general pretreatment regulations, which would streamline a POTW's oversight requirements and eliminate discharge monitoring for the dentists, easing implementation burdens by requiring less reporting and inspections compared to the traditional SIU category. However, if a dental office did not meet the DIU requirements, it would be declared an SIU under this proposal, subjecting that dental office to POTW oversight.

And in another attempt to ease the proposal's implementation burden on POTWs, EPA also proposed that a state could oversee the dental amalgam requirements for those jurisdictions that did not have a POTW with an approved pretreatment program, rather than requiring a POTW to develop a full pretreatment program to only regulate its dental dischargers.

The proposed rule has not yet been noticed in the Federal Register.

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League Urges EPA to Accept NC's Impaired Waters Listing Procedures

The fate of the procedure or "listing methodology" used in deciding NC's impaired waters list -- known as the 303(d) list -- may hinge on whether U.S. Environmental Protection Agency (EPA) chooses to continue with its decision to add 52 waters back to North Carolina's 303(d) impaired waters list. It provided notice of that pending decision in August after its partial approval of the State's submitted list last month.

The state's 303(d) list, named after Section 303(d) of the federal Clean Water Act (CWA), is updated every two years. For each two-year cycle, the federal law requires states to evaluate the health of their waters and list those showing signs of being impaired. Impaired waters most often become subject to water pollution restrictions for the affected watershed, typically in the form of a Total Maximum Daily Load (TMDL). Local governments, as the holders of wastewater and stormwater discharge permits, bear responsibility for reducing their discharges to waters under a TMDL--often a costly requirement. A state's listing methodology assists in assessing whether waterbodies meet water quality standards.

EPA's Decision Add Waters to NC's List

The League submitted comments last week regarding EPA's proposal, focusing on municipalities' support for retaining NC’s decision to use a 90% confidence limit listing methodology, selected by the N.C. Environmental Management Commission (EMC) last year. This methodology would utilize a numeric water quality criteria evaluation for toxic parameters to list waters when data showed that greater than 10% of the available results exceeded the standard with a 90% statistical confidence (90/10 approach). The League stated that the 90/10 approach allowed N.C. Division of Water Resource's (DWR) to better manage error rates, address exceedances resulting from extreme conditions or variability, reduce false-positive errors, establish a confidence level associated with the assessment, and provide an assessment that more properly addressed sampling and analytical errors.

In their own comments, critics of the 90/10 approach stated it was an inappropriate methodology because North Carolina used high-quality data when making 303(d) impairment listing determinations. Further, they stated that even though the 90/10 approach limited sampling errors, that fact was not a sound justification for using the methodology because North Carolina regulated the quality of data used. In addition, critics argued that the 90/10 approach was in effect a new water quality standard (WQS) because it assessed the likelihood of compliance within an exceedance of 10% of the WQS instead of compliance with the actual WQS. Lastly, critics claimed that the 90/10 approach started off by assuming that the water in question was not impaired, thereby requiring proof of non-attainment, a switch from the previous presumption that all waters were impaired until data showed otherwise.

EPA's decision to add waters to North Carolina's list came as a result of EPA favoring a so-called “one in three” listing methodology for toxic parameters such as metals. Following EPA's preferred approach would require a state to list a water as impaired if more than one toxics sample in three years exceeded that state’s water quality standard. The EPA methodology would then mandate an impairment listing regardless of the age of the data (North Carolina's water quality sampling program has not collected metals data in waters since 2007), the extent to which the data exceeded the state's water quality standard, or the precision of the techniques used to gather the data.

Arguments regarding the validity of the 90/10 approach were echoed in comments submitted to EPA by the EMC and DWR. Those comments also focused on the fact that the CWA carefully carved out for states specific responsibilities, which included impaired waters listing decisions. They stated that it is a state's responsibility to define the protocol both for determining non-attainment of water quality standards in individual waters and for identifying impaired and unimpaired waters. While raising concerns about EPA's actions, DWR did commit to expediting the sampling of the 52 bodies of water proposed for listing to provide data that could support a future listing determination.

In its comments, the League also noted that the CWA gave states the responsibility and authority to develop listing methodology and argued that EPA's decision would adversely affect the continuity of the State's listing process in 2016.

2016 Methodology

To complicate matters, at the same time that they are addressing EPA's 2014 303(d) listing decisions, state regulators are in the process of deciding the listing methodology to determine which waters will be on the state's next impaired waters list in 2016. The League submitted comments in September regarding DWR's proposed 2016 listing methodology, also focusing on the State retaining North Carolina’s 90/10 approach for toxic parameters. After the League and others submitted comments, DWR announced that it would delay its decision regarding the 2016 listing methodology until 30 days after EPA made a final decision regarding its listing of the 52 additional waters for the 2014 list.

In addition to the most recent comments, the League has been very involved in 303(d) impaired waters list and the listing methodology. These efforts were reported on in these previous EcoLINC articles:

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NCLM Submits Comments on Proposed Oil and Gas Regulations

The League provided comments in September to the N.C. Mining and Energy Commission (MEC) regarding proposed rules for the management of oil and gas exploration in the state. The League discussed proposed regulations related to water withdrawals, wastewater disposal, baseline water supply testing, setbacks and local government preemption.

The League's comments emphasized its support of regulation in the area of hydraulic fracturing and natural resource extraction that protects the health, safety and welfare of the citizens and environment, while facilitating necessary economic development for the overall well-being of North Carolina. The League also highlighted that municipalities' greatest priority regarding oil and gas development is that they maintain authority to pass land use or nuisance ordinances to control impacts of this heavy-impact industry on their communities. 

In addition, the League made the following requests:

  • Wastewater Disposal: That wastewater treatment facilities not be required to accept wastewater produced from hydraulic fracturing drilling, even though the proposed rules did not include such a requirement
  • Setbacks: That local governments retain the ability to establish setback distances within their jurisdictions
  • Infrastructure Costs: That the MEC work with legislators to secure authority that would allow it to administer an impact fee providing reimbursements to local governments for any damage to infrastructure, such as harm to roads

The N.C. Division of Energy, Mineral and Land Resources (DEMLR) reported that the MEC received over 100,000 comments regarding the proposed rule-set. The MEC is scheduled to meet at the end of the month to start discussions regarding the comments and any changes to the rule-set that may result. The League has closely followed the development of this rule-set and was fortunate to participate in three separate stakeholder groups that reported to the MEC. The League reported on the actions of the Legislature and MEC in regards to this rulemaking in previous EcoLINC articles:

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DWR Releases New Wastewater Spill Notification Guidance

The N.C. Division of Water Resources (DWR) released new guidance this month to operators of wastewater treatment and collection systems regarding the reporting of wastewater spills. The memo came in response to provisions of SB 729 Coal Ash Management Act of 2014, which changed the reporting requirements. The new law required systems to report unauthorized discharges of 1,000 gallons or more of untreated wastewater into the surface waters of the state to regulators within 24 hours. A separate provision required public notification of a spill within 24 hours. Previous law required systems to notify the public within 48 hours of a spill.

The law responded to a highly-publicized January sanitary sewer overflow event in Burlington and the Dan River coal ash spill a few days afterward (read about that discussion in "Unauthorized Spills Capture Legislative, U.S. DOJ, Media Attention"). After hearing that state environmental officials counseled the City to delay its required public notice of the spill, legislators sought to speed up that process, changing the window of time from 48 hours to 24 hours for a system to issue notify the public and codifying an existing state regulation that required systems to alert state regulators of a spill greater than 1,000 gallons within 24 hours of determining the untreated wastewater had reached the state's waters.

In the new guidance, DWR said it would continue to enforce a more stringent provision currently written in collection system permits requiring systems to report unauthorized discharges to surface waters of any amount. The memo to wastewater treatment operators also contained sample press release language, sample public notice language, and specific instructions on how to give the public notice.

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Memo Addresses Concerns Over Ebola, Safety of Sanitary Sewer Operations

The N.C. Division of Water Resources, jointly with the N.C. Division of Waste Management and the N.C. Division of Public Health, sent a memo to all city and county water and sewer districts Friday regarding the disposal by sanitary sewer systems of medical waste specifically related to the Ebola virus. The memo did not include guidance for wastewater operators and workers.

While no one who has contracted the Ebola virus is receiving medical treatment in North Carolina, the State released the memo to make necessary preparations for the possibility. The memo cited current guidance by the U.S. Centers for Disease Control and Prevention (CDC) stating that the Ebola virus is inactivated by municipal wastewater treatment. However, the memo missed one key concern of municipal officials, which is related to the transport of a waste stream containing the Ebola virus through the collection system to the treatment plant. Specifically, municipal officials remain worried about the potential risk of exposure to the virus by maintenance personnel, the general public, and others in the event of exposure to wastewater prior to treatment, such as in the event of sanitary sewer overflows, needed sewer line repairs, or mainline backups into homes.

While the CDC recommended disposal of Ebola-related waste to public wastewater systems, it too did not have guidance for wastewater operators related specifically to Ebola. The following is the specific CDC guidance regarding the safety of Ebola and sanitation systems:

The CDC has indicated that it is developing guidance to provide information for utility workers that may handle untreated sewage from hospitals treating Ebola patients, including information about the Ebola virus and proper personal protective equipment and hygiene. The League will share that guidance once it becomes available.

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Regulatory Briefs

DWR awarded $966,177 in grants as part of its 2014 fall grant cycle for the Water Resources Development Project Grant Program to help towns and counties restore streams, reduce erosion, study future water supplies, and benefit other water resources...The 11th Circuit Court of Appeals struck down the NCGA's attempt to allow plaintiffs in the Camp Lejeune toxic tort suit to retroactively seek damages from the federal government, rejecting arguments that a state law change clarified when ground water contaminations cases may be brought...The N.C. Supreme Court recently moved several complex cases from the N.C. Court of Appeals to its jurisdiction, including the appeal by Duke Energy Carolinas regarding groundwater contamination at its coal ash disposal sites...While Duke Energy provided state officials with its plans for assessing groundwater quality at the utility’s fourteen coal-fired power plants as part of the effort to mitigate groundwater contamination at the utility’s coal ash storage ponds...The EMC approved the temporary buffer rule in September as mandated in SL 2014-95...The Rules Review Commission approved the EMC's categorization of the 2B, 2H, 2T, and 2U water quality rules Thursday as part of the periodic review of rules process mandated by HB 74 Regulatory Reform Act of 2013, moving those rules closer to the re-adoption part of the process...In addition, as part of the periodic review of rules process, DENR announced its review of regulations related to water facility operators (18D)...DENR officials stated they received more than 100,000 comments regarding the MEC's rules for oil and gas exploration and development...EPA extended the comment deadline on the proposed Waters of the U.S. jurisdictional rule until November 14...Meanwhile, the Army Corps of Engineers released a guidance document to clarify how regulators can assess the boundaries of an ordinary high water mark in jurisdictional CWA determinations...As directed in the Water Resources Reform and Development Act, the Corps announced it was accepting proposals from local governments for feasibility studies and modifications to authorized water resources development projects until December 3...EPA provided notice in the Federal Register of its plan for new and revised effluent guidelines, part of which will study Centralized Waste Treatment facilities accepting oil and gas extraction wastewater, including available treatment technologies and their associated costs ("Preliminary 2014 Effluent Guidelines Program Plan" and "2012 and 2013 Annual Effluent Guidelines Review Reports")...In response to an Inspector General report highlighting EPA's ineffectiveness at controlling discharge of hazardous chemicals into surface waters, EPA announced plans to develop a list of suggested chemicals beyond the 126 priority pollutants for possible inclusion in wastewater discharge permits, including plans to require POTW facilities to monitor effluent for chemical pollutants and notify regulators of permit limit exceedances…In addition, EPA determined that a drinking water rule was necessary for the chemical strontium, but found no risk for the contaminants dimethoate, terbufos, terbufos sulfone and 1,3-dinitrobenzene that would require regulation...EPA asked an appellate court to uphold its rule that exempted transfers of water between two jurisdictional waterbodies from NPDES permit requirements...In addition, EPA announced it would provide $335,000 in technical assistance to assist five municipalities in integrating wastewater and stormwater permitting requirements, spurring hopes that the commitment would prompt Congress to appropriate more funds towards the implementation of its integration policies...EPA also announced it was developing human health ambient water quality criteria for three cyanotoxins and examining existing studies on the levels of microcystins in edible fish and shellfish; regulatory approaches to address cyanotoxins would happen under both the Safe Drinking Water Act, by developing a health advisory, and by creating risk-based water quality criteria under the CWA...EPA and environmentalists both decided to drop out of a 4th Circuit U.S. Court of Appeals case regarding requirements for CWA permits for air emissions of feather and farm dust, leaving the Rose Acre Farms federal District Court case challenging North Carolina's requirements as the only remaining farm dust permitting suit...The 9th Circuit U.S. Court of Appeals upheld a California county's drug collection program, holding that a requirement that pharmaceutical companies whose products were sold in the county create a drug take-back program for unwanted medications did not violate the Commerce Clause of the U.S. Constitution...A housing development company argued in U.S. District Court that the Due Process Clause of the Constitution granted courts power to review a determination of whether a waterbody was jurisdictional under the CWA prior to an enforcement finding...As a result of EPA's inaction on updating its 2003 guidance on water trading, Oregon initiated its own rulemaking to upgrade and promote its state water quality trading program to improve water quality.

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NCLM and State Environmental Government Meetings & Events