» Clean Water Current Archive

May 22, 2009

House Panel Marks Up Climate Bill; Water Sector Amendment Delayed

The House Energy and Commerce (E&C) Committee this week marked up the American Clean Energy and Security Act of 2009 (ACES) (H.R. 2454) , comprehensive legislation to establish a cap-and-trade system to control greenhouse gas emissions and provide for adaptation resources.   The cap-and-trade system would  cover any entity emitting more than 25,000 tons of carbon dioxide equivalents per year.  While most wastewater treatment facilities would not fall under this cap, some of the large facilities that incinerate their biosolids could potentially be included.  The bill also requires EPA to set greenhouse gas emission performance standards under the Clean Air Act for stationary sources of carbon dioxide equivalents.  Specifically, EPA must include stationary sources “that individually had uncapped greenhouse gas emissions greater than 10,000 tons of carbon dioxide equivalent” or that, “in the aggregate, were responsible for emitting at least 10 percent of the uncapped methane emissions.”  Wastewater operations are responsible for only about .45 percent of uncapped methane emissions nationwide.  NACWA provided a detailed analysis of a draft of the bill in its Legislative Alert 09-08.

An amendment by Rep. Lois Capps (D-Calif.) strongly supported by NACWA, the Association of Metropolitan Water Agencies (AMWA), and the Natural Resources Defense Council (NRDC) was not included at the last minute for jurisdictional reasons.  It would have incorporated a dedicated fund for water-related adaptation needs that would have been administered through EPA and distributed in the form of competitive grants to water and wastewater utilities.  The grants under Capps’ proposal would also have helped finance studies of water and wastewater systems’ unique climate-related risks, and implement adaptation programs (such as water efficiency and conservation efforts, or advanced treatment methods) that respond to these needs.  Capps has pledged to continue working with NACWA and the other groups to move the amendment forward as the climate legislation proceeds.

NACWA Meets With House Security Panel to Discuss Water Title, Jurisdiction

NACWA met this week with majority staff of the House Homeland Security Committee to reiterate its concerns over efforts to extend the chemical facility anti-terrorism standards (CFATS) to wastewater facilities while creating a new security program for drinking water facilities under EPA.  The existing CFATS currently only apply to private chemical manufacturers, but they are set to expire in October.  Congress seeks to reauthorize the standards and make them permanent with some revisions before that time.  Rep. Bennie Thompson (D-Miss.), chair of the House Homeland Security Committee, is working with Rep. Henry Waxman (D-Calif.), chair of the House Energy and Commerce Committee, to mark up legislation by the end of June that takes the rather complex approach of giving EPA oversight authority for security at drinking water facilities, while security at wastewater facilities would fall under the Department of Homeland Security (DHS).

Waxman released draft language for drinking water facilities this week, and NACWA is working through its Security & Emergency Preparedness and Legislative Policy Committees to provide comments to congressional staff on these provisions.  In the meantime, NACWA continues to point out that allowing DHS jurisdiction over wastewater while EPA oversees drinking water would prove impractical and burdensome.  NACWA also continues to oppose mandates for inherently safer technologies (IST), arguing that the decision of which technology to use should be left up to the water and wastewater utilities whose sole mission is the protection of public health and the environment.  To date, no bill has been introduced in the Senate, leaving open the possibility that CFATS will simply be reauthorized as is through 2011 or 2012, thereby continuing the exemption for water and wastewater as these issues continue to be worked out.

NACWA Meets With EPA Solid Waste Officials to Discuss Biosolids Incineration

NACWA met this week with the key officials in EPA’s solid waste and air offices to discuss an ongoing rulemaking that will dictate how sewage sludge incinerators (SSIs) are ultimately regulated under the Clean Air Act (CAA).  As a follow-up to comments  filed on Feb. 2 urging EPA not to include sewage sludge or biosolids under its Resource Conservation and Recovery Act (RCRA) definition of non-hazardous solid waste, NACWA underscored the broad implications of defining biosolids as a solid waste.  If biosolids are deemed a solid waste, SSIs would then be potentially regulated under Section 129 of the Clean Air Act (CAA), an outcome NACWA has advocated against for more than a decade.  Regulation under Section 129 could force many of the currently operating incinerators to shut down and would require the remaining units to put in place new pollution control equipment.  NACWA has long held that SSIs are more appropriately regulated under Section 112 of the CAA and had been assisting EPA in the development of those regulations when a court ruling vacated several EPA rulemakings regarding incineration of commercial and industrial solid waste.

EPA announced in a Jan. 2 Advance Notice of Proposed Rulemaking  (ANPRM) (74 Fed. Reg. 41) that it was seeking comment on the meaning of “solid waste” under RCRA as it applies to non-hazardous wastes as a way to assist EPA’s Office of Air and Radiation in developing new standards under Sections 112 and 129 of the CAA for incinerators and boilers that would be consistent with the court rulings.  During the meeting, NACWA reiterated the arguments it laid out in its Feb. 2 comments, namely that the RCRA statutory definition of solid waste expressly excludes materials dissolved in domestic sewage and should extend to the biosolids produced by clean water agencies.  EPA indicated that they are working to develop a regulatory definition that is consistent with the statute, but indicated that the decision on whether biosolids are excluded is complicated and subject to differing interpretations of the statutory definition.  The solid waste office is working to meet a July 15 deadline for proposing the new definition as part of a larger air quality regulation.  NACWA will be following up with the solid waste office to provide additional information on several issues raised during the meeting.

Administration Supports CWA Jurisdiction Bill, Helps NACWA’s Advocacy Efforts

Congressional supporters of legislation to clarify the jurisdictional reach of the Clean Water Act (CWA) received a boost this week from Obama administration officials who sent a letter with a set of principles on how to address the uncertainties under the law.  Specifically, the heads of EPA, the Council on Environmental Quality, the Army Corps of Engineers, the Department of Agriculture, and the Department of the Interior sent a letter to Rep. James Oberstar (D-Minn.), chairman of the House Transportation & Infrastructure (T&I) Committee, outlining principles the legislation on CWA jurisdiction should follow that “would go a long way toward addressing the substantial confusion and uncertainty arising from recent Supreme Court decisions.” Obertar introduced the Clean Water Restoration Act in the 110th Congress that sought to clarify the jurisdictional reach of the Clean Water Act, but has not yet introduced similar legislation in this Congress.  However, the administration letter said any upcoming legislation should: 1) broadly protect the nation’s waters; 2) make definition of covered waters predictable and manageable; 3) promote consistency between CWA and agricultural wetlands programs; and 4) recognize long-standing practices.

The final principle is of particular importance to NACWA because the letter states clearly that these long-standing practices include existing regulatory exemptions.  This is consistent with NACWA’s position that such legislation must specifically exclude the manmade waste treatment exemption from the bill’s jurisdictional grasp.  NACWA continues to understand from both the House and Senate that this exemption will be in the respective bills as they move forward.  The Senate Environment & Public Works (EPW) Committee continues to discuss compromise legislation put together by Sen. Max Baucus (D-Montana) on the Clean Water Act jurisdictional issue.  This compromise legislation could serve as a substitute amendment for the Clean Water Restoration Act of 2009 (S.787), which was introduced by Sen. Russ Feingold (D-Wis.) earlier this year.  The committee is expected to mark up the bill in early June.  Chairman Oberstar has yet to reintroduce the House version of this bill but  has been seeking broad support for the swift passage of pending legislation with some changes from the bill he introduced last Congress.  NACWA will continue to update members on the jurisdictional issue and will continue to ensure the clean water community’s jurisdictional concerns are reflected in this key legislation.

Green Infrastructure Partnership Meets to Discuss Ongoing Efforts

NACWA participated in a meeting with EPA, the Natural Resources Defense Council (NRDC), and American Rivers May 18 to discuss each group’s ongoing green infrastructure initiatives.  NACWA reported on the success of its municipal green infrastructure course last month in West Virginia, which drew clean water utilities from around the country to learn more about how green infrastructure can be implemented at the municipal level.  Also discussed were ongoing joint efforts between NACWA, NRDC, and American Rivers to draft proposed green infrastructure legislation that would create a national grant program for green infrastructure projects and fund research and development centers for low impact development techniques across the country.  Work is continuing on the draft proposal with a goal of introducing a bill in Congress later this summer.  EPA reported on recent efforts to expand and improve its green infrastructure website, which serves as a source of information and guidance on green infrastructure techniques.  The Agency is also working on a number of research projects to better quantify the potential environmental and economic benefits of using green infrastructure to control stormwater runoff.