» Clean Water Current Archive

June 5, 2009

NACWA, Member Efforts Lead to Revenue-Generating Provision in Senate Energy Bill

The Senate Energy and Natural Resources Committee marked-up legislation June 4 requiring that by 2021, 15 percent of all electricity generated come from renewable sources, including biomass generated at municipal wastewater treatment plants.  If enacted, this provision would provide a market in which clean water agencies could sell the electricity they generate back to the grid, creating a potential new revenue source.  NACWA and its Michigan members worked with Sen. Debbie Stabenow (D-Mich.) to include in the American Clean Energy Leadership Act of 2009 (no bill number yet) language that would consider biomass from treatment plants as a renewable energy source for purposes of the Renewable Electricity Portfolio Standard established in the bill.  The Oakland County (Mich.) Drain Commission and the Detroit Water and Sewage Department, both NACWA member agencies, helped advocate for this language by sending letters supporting Stabenow’s efforts.  Similar language on biomass from the wastewater treatment process is included in a separate energy title of comprehensive climate change legislation marked up recently by the House Energy and Commerce Committee.  The Senate and House energy bills are expected to be merged later this year into final energy legislation, and NACWA will continue to track its progress.

NACWA Recommendations Incorporated into BEACH Act Bill Reported by House Panel

The House Transportation and Infrastructure (T&I) Committee marked up legislation yesterday to reauthorize the Beach Environmental Assessment and Coastal Health Act (BEACH Act) and included several changes to address concerns raised by NACWA members.  The bill marked up was a substitute for the Clean Coastal Environment and Public Health Act of 2009  (S. 878; H.R. 2093) and contained new language defining a rapid test method as one that produces results “as soon as practicable” but no more than six hours from the start of the test.  Public health agencies would then have two hours from receipt of the sample to notify the public of a beach closure.  This is a significant improvement over the original language, which required results to be produced within two hours.  States would be required to implement the new rapid test method within a year and EPA would reassess and validate the best available rapid test method every five years thereafter.  The bill also would authorize $40 million for BEACH Act implementation, an increase from the current $30 million but down from the $60 million in the introduced legislation.  The committee expanded the eligibilities for this funding to include pollution source tracking and remediation as well as monitoring and public notification.

The revised bill also contained language, supported by NACWA, setting an October 2012 deadline for when EPA must develop and validate a new rapid test method.  This deadline is consistent with the recent BEACH Act litigation settlement among NACWA, EPA, the Los Angeles County Sanitation District, and the Natural Resources Defense Council (NRDC) and is a significant improvement over last year’s version of the bill.  EPA also would have to conduct annual compliance reviews of state and local beach projects.

Finally, the bill would require EPA and other state and federal agencies to assess the impact of nutrients and algal blooms on coastal recreational activity and report their findings to the committee within one year of the enactment of the bill.  These changes to the BEACH Act reauthorization bill reflect a significant victory for NACWA’s advocacy efforts on this issue.  The bill will move to full House for consideration later this summer.  The Senate Environment and Public Works (EPW) Committee is expected to mark up the legislation on June 11.  NACWA will continue to work with staff as the legislation is finalized and will keep its members updated regarding further developments.

NACWA Wins Legal Victory in Water Transfers Case

NACWA won a significant legal victory June 4 when a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta ruled in Friends of the Everglades v. South Florida Water Management District (FOE v. SFWMD) that transfers of natural, untreated water from one water body to another do not require a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA).  The court’s opinion  echoes the position taken by NACWA and the New York City Department of Environmental Protection, a member agency, in a brief  filed with the court in December 2007.  The court’s decision relied on EPA’s June 2008 Water Transfers Rule, which is based on the unitary water theory holding that transfers of pollutants between navigable waters is not an “addition” of pollutants requiring an NPDES permit.  The Eleventh Circuit determined that EPA’s regulation was a reasonable interpretation of the CWA’s ambiguous language regarding what an addition of a pollutant might mean under the statute.  The court’s ruling reinforces NACWA’s longstanding position that such transfers of water between water bodies are not appropriate for NPDES regulation.  The environmental plaintiffs in FOE v. SFWMD have indicated they will appeal the court’s decision to a full Eleventh Circuit and possibly to the U.S. Supreme Court.  NACWA will continue to track the case and report on any developments.

Efforts by NACWA, Water Sector Groups Lead to Two EPA “Buy American” Waivers

In response to efforts by NACWA and other water sector groups, EPA published two Federal Register notices June 2 establishing nationwide waivers from the “Buy American” provisions of the American Recovery and Reinvestment Act (ARRA) for certain clean water projects.  The two waivers, described in more detail in Legislative Alert 09-13, will apply to specific projects or components of projects funded through the Clean Water State Revolving Fund (CWSRF) with ARRA funds. 

The first waiver  applies to projects for which bids were solicited between Oct. 1, 2008, and Feb. 17, 2009, specifically in anticipation of stimulus funding.  To be included under this waiver, a clean water utility must show that it was reasonable and prudent to solicit bids for a project prior to completing an agreement to seek funding through the SRF program.  The second waiver  covers de minimus incidental components — defined as those that make up no more than 5 percent of the total cost of the materials in ARRA-funded projects.  Such incidental components could include items such as nuts, bolts, fasteners, gaskets, and tubing.  NACWA members are encouraged to review the EPA waiver notices with their legal counsel and contractors if they believe either could apply to their ARRA projects.

NACWA Comments on Proposed Emissions Limits for Reciprocating Engines

NACWA submitted comments  June 3 recommending EPA revise parts of its proposed air toxics standards for stationary reciprocating internal combustion engines (RICE), especially those that use digester gas or are used in emergency situations.  EPA’s proposed national emission standards for hazardous air pollutants (NESHAP) for RICE focuses on existing engines at both major and area sources, with stringent carbon monoxide emission limits set for several subcategories of landfill/digester gas engines and emergency engines.  NACWA said that low emissions levels “may be an appropriate requirement for new engines, but the cost to retrofit existing digester gas engines and install emissions controls has not been justified in the proposed rule.”  Rather than installing expensive controls on existing engines, NACWA believes that utilities should be encouraged to continue using their digester gas engines, which beneficially reuse methane, a potent greenhouse gas, and reduce a utility’s reliance on other fuel sources.  NACWA also stated that the cost of controls for emergency use engines, which are rarely operated, was not justified in the proposed rule.  NACWA supports setting a higher carbon monoxide limit for digester gas and emergency use engines, or establishing maintenance, inspection, and operation standards instead.

NACWA also said that requiring engines to meet the same stringent standards during periods of startup, shutdown, or malfunction (SSM) could be costly and unnecessary and that more data is needed.  EPA bases its decision not to exempt SSM events from the strict standards on a 2008 court decision in Sierra Club v. EPA.  EPA still has time to appeal this decision, however, and NACWA commented that “EPA should take more time to collect data on emissions during these events, and on the effectiveness and costs of emissions controls, before finalizing a rule that will prove costly to utilities and other users of stationary RICE.”  NACWA will keep members informed on EPA’s decisions regarding the proposed NESAHP for RICE.

Industry Leaders Will Provide Perspectives at NACWA Summer Conference

Two clean water industry leaders will provide their experiences and perspectives at NACWA’s 2009 Summer Conference, The New Regulatory Climate. . . Clean Water Agencies Prepare to Act, and 39th annual meeting, July 14-17 in Milwaukee.  Douglas Smith, president of engineering and architecture services for Tetra Tech, Inc., has nearly 35 years focused on water infrastructure engineering.  He will speak about responsible resource management and sustainable infrastructure under the current and developing regulatory regimes, and how wastewater utilities can confront both their ongoing and emerging issues.  Laurent Auguste, president and CEO of Veolia Water North America, has extensive international experience in municipal and industrial water and wastewater treatment.  His presentation will focus on how public-private partnerships may be used to improve the performance of utilities and conduct research that is vital to solving wastewater problems in the future.  These speakers and others will explore what utilities can do now to address their issues and prepare themselves for upcoming regulatory changes.  Visit NACWA’s Conferences and Professional Development website for more information, and be sure to take advantage of the discount for multiple registrations from the same agency!