» Clean Water Current Archive

July 10, 2009

LATE BREAKING NEWS:

The Senate confirmed Pete Silva as EPA assistant administrator for water late Friday afternoon. NACWA will be working to set up a meeting with him as soon as possible to discuss issues of critical importance to the clean water community. 

EPA Likely to Define Biosolids as Solid Waste; NACWA to Ramp up Advocacy Efforts

NACWA learned this week that EPA’s Office of Resource Conservation and Recovery (ORCR, formerly the Office of Solid Waste) will likely propose a definition of solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) that includes biosolids.  The ORCR rulemaking was initiated to determine how sewage sludge incinerators (SSIs) should be regulated under the Clean Air Act (CAA), but the determination could have broader consequences for biosolids management.   In response to this preliminary determination, the EPA Office of Air and Radiation is proceeding with a separate rulemaking to develop stringent CAA standards for SSIs.  NACWA has been closely following this effort since 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.  NACWA filed comments  on the ANPRM urging EPA not to include biosolids under its definition of non-hazardous solid waste and has met with key EPA officials to provide additional information on the impacts of such a decision.

During a conference call with NACWA, the agency indicated it has determined preliminarily that the domestic sewage exclusion for dissolved materials in sewage entering a treatment plant does not extend to the sewage sludge generated by the plant.  If the sludge is then ‘discarded,’ including destruction through incineration, then EPA intends to include those sludges in its definition of solid waste.  EPA is under a court-ordered deadline to propose the new definition by Sept. 15 in order to resolve a legal challenge involving EPA’s previous rulemakings on commercial and industrial solid waste incineration.  What is unclear at this point is how this determination will affect other biosolids management options, including land application.  NACWA continues to raise the potentially major consequences of such a decision and will discuss the Association’s next steps, including additional meetings with top EPA officials, during the Biosolids Management Committee meeting at NACWA’s Summer Conference in Milwaukee next week.

With biosolids presumably defined as a solid waste, officials in the EPA Office of Air and Radiation notified NACWA that they intend to begin the process of developing regulations under CAA Section 129.  Section 129 would subject all SSIs to maximum achievable control technology (MACT) standards and would effectively shut down many of the incinerators operated by NACWA members.   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, including one from 2007 that had assigned SSIs to Section 112.  With that rule no longer in effect and the decision to include biosolids in the definition of solid waste, EPA must now work to develop proposed MACT standards for SSIs by Oct. 15, ad NACWA will submit comments.  While NACWA continues to debate the solid waste definition with ORCR, it will also be working to ensure the MACT standard development process uses only the most recent and reliable data on SSIs.  NACWA will be contacting its members who incinerate soon for assistance in this effort.

NACWA Members Discuss Stimulus Package Issues, Inform Advocacy Priorities

With the Feb. 17, 2010, deadline looming for American Recovery and Reinvestment Act of 2009 (ARRA or stimulus package) funds to be spent, NACWA engaged approximately 20 public agency members in a conference call yesterday regarding the status of their ARRA projects.  This series of calls helps NACWA refine its advocacy strategy based on the latest information and share that information with the full membership.  NACWA learned states continue to have no single approach for funding stimulus package projects.  In Ohio, for example, NACWA members benefited from stimulus package funding, receiving half of their money in the form of low-interest loans and half in the form of principal subsidy/grants.  Members from Massachusetts also said they were receiving stimulus dollars and benefitted from the green infrastructure set-aside in the ARRA.  In California and Oregon, meanwhile, members from larger urban areas were largely passed over with the states providing funds primarily to rural areas or funding projects that were already underway or previously on the state intended use plans (IUPs), with little regard for job creation/economic impact.  There was a general agreement on the call that, to the extent the stimulus package does not achieve its “job creation/jobs saved” objectives, it will be important to examine the manner in which states distributed the funds, especially regarding the lack of an urban focus.  NACWA members also expressed concerns about the Buy American provisions, which they said prevented them from applying for certain projects, created serious concerns about municipal liability, and prompted states to select projects that would comply with Buy American, rather than those that would advance the stimulus package’s policy objectives.  On Capitol Hill, the issue of Buy American is garnering increased attention as the success of the stimulus package is scrutinized.  NACWA intends to continue to hold these calls on a regular basis and will keep members informed as developments occur.

NACWA Seeks Water Adaptation Language in Senate Climate Bill; Markup Delayed

NACWA and a coalition of water associations and other environmental groups continue to push for language in a comprehensive climate change bill being developed by the Senate Environment and Public Works (EPW) Committee that would create a competitive grants program to help water, wastewater, and stormwater systems adapt to the effects of climate change.  The language was originally introduced as the Water System Adaptation Partnerships Act of 2009 (H.R. 2969) by Rep. Lois Capps (D-Calif.) as an amendment to the House climate bill (H.R. 2454 ), which passed June 26.  However, the House did not adopt the amendment, prompting NACWA and other supporters to intensify their advocacy for the language in the Senate.

This past week, NACWA met with senior staff for several Senate EPW Committee members to rally support for the Capps provisions.  NACWA also sent a letter  to Sens. Barbara Boxer (D-Calif.) and James Inhofe (R-Okla.), chairwoman and ranking member, respectively, of the EPW Committee, urging their support for the measure.  In addition, NACWA met with committee staff and believes Boxer will be receptive to having this provision in the bill.  Meanwhile, Boxer and Senate Majority Leader Harry Reid (D-Nev.) have decided to delay final committee markup of the climate bill until September to accommodate a heavy Senate workload before the August recess.  NACWA will continue to reach out to Senators to ensure that the needs of water utilities are accommodated in upcoming legislation.

EPA Memo Details Increased Focus on CWA Enforcement, More Transparency

EPA Administrator Lisa Jackson released a memo July 2 calling for stronger enforcement actions against Clean Water Act (CWA) violators and more transparency of its enforcement activities and those of the states as a way to improve water quality.  The memo, directed to the EPA Office of Enforcement and Compliance Assurance (OECA), discusses the need to “raise the bar for clean water enforcement performance,” including an emphasis on problems with the biggest impact on water quality, such as wet weather issues.  The memo also stresses the need to both increase EPA’s enforcement presence against significant CWA violators while also working with the states through the Environmental Council of the States (ECOS) and the Association of State and Interstate Water Pollution Administrators (ASIWPCA) to increase state enforcement abilities.  Additionally, OECA is directed in the memo to improve the transparency of CWA enforcement actions by making more information available on the EPA website showing the level of enforcement activity in each state and the connections to local water quality.  Such data would be in addition to existing information on the Agency’s website detailing enforcement information and reports from individual states.

Jackson asked OECA to develop an action plan in consultation with EPA’s Office of Water to achieve the enforcement and transparency goals outlined out in the memo and to present recommendations for meeting these goals within 90 days, but did not request that any municipal stakeholders be consulted as part of the process.  NACWA plans to draft a letter to Administrator Jackson indicating that in light of her stated commitment to cooperate with the municipal clean water community, NACWA should be given an opportunity to present its perspective to OECA prior to finalization of any new enforcement initiative.  NACWA will report to the membership on future developments involving this issue.

NACWA/AMWA Convene First Meeting of Pharmaceutical Peer Review Panel

Top experts on the issue of emerging contaminants gathered from around the country this week at NACWA for the first meeting of the peer review panel formed by NACWA and the Association of Metropolitan Water Agencies (AMWA).  The panel is charged with developing recommendations on how to address the issue of pharmaceuticals in water.  Initiated and funded as a part of NACWA’s Critical Issue Action Initiative, the panel will now work to develop a report for those in the water sector and national policymakers on the state of knowledge regarding the potential health and ecological implications of pharmaceuticals in water, options for source control and treatment if needed in the future, and key information gaps that must be addressed before regulatory action can be taken.  The panel heard presentations from a US Geological Survey expert, key policy and research officials from EPA, and a representative from the pharmaceutical industry.  The panel is now working on an initial draft of its report and will convene again in early September.  NACWA and AMWA expect to have a final report ready for their respective memberships in early November.

NACWA Briefed on Revisions to Ammonia Criteria

NACWA met this week with officials in the EPA Office of Science and Technology (OST) to discuss the agency’s ongoing efforts to revise the 1999 water quality criteria for ammonia, which could have major implications for many clean water utilities.  A study from 2003 on the sensitivity of freshwater mussels to ammonia raised concerns that the existing criteria may not be protective enough, and EPA has been working over the past several years to evaluate the data and determine whether a revision is necessary.  NACWA provided its members with additional information on the effort to revise the criteria via Regulatory Alert 07-03 and submitted comments to EPA outlining the Association’s concerns with the use of the new data and recommending several considerations for flexibility in implementing a potentially more stringent criterion.

During this week’s meeting, EPA indicated it was relying less on the data with which NACWA was concerned.  Rather, the agency is considering several implementation issues, including varying impacts depending on temperature, and the possibility that a bifurcated criterion, with more stringent values where the sensitive mussel species are present, may be appropriate.  EPA solicited additional data on the issue in 2007, and since that time, has been working to reassess the current criterion.  In 2008, OST formed a workgroup with EPA Office of Research and Development experts to discuss specific technical data issues related primarily to the larval and juvenile stages of the freshwater mussels that were being evaluated and developed position statements on how these data would be considered in aquatic life criteria derivation.  Those position statements were peer reviewed, and EPA is now developing a draft criteria reassessment document considering the recent mussel toxicity data and other new information.  A peer review of that document will take place this summer and ultimately be released for public comment this fall.

Passage of Water Sector Security Bill Likely Pushed Back Until Next Year

Sen. Joseph Lieberman (I-Conn.), chair of the Senate Homeland Security and Government Affairs Committee, confirmed this week that his committee is unlikely to take up its own version of legislation to reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program before the end of the year.  The House and Senate Appropriations Committees have included provisions to extend CFATS in its current form for one year in their respective fiscal year 2010 Department of Homeland Security (DHS) funding bills, as the Obama administration requested.  This one-year extension will provide more time for NACWA to work with the key House committees to straighten out the complicated jurisdictional situation that has slowed the CFATS reauthorization’s progress through the House Homeland Security (HS) and Energy and Commerce (E&C) committees.

The House Homeland Security Committee recently reported out a CFATS reauthorization bill (H.R. 2868) that would cover all chemical facilities and included wastewater systems.  However, due to jurisdictional issues, the committee was forced to exempt drinking water systems, which would be covered by legislation that the E&C Committee finalized this week.  NACWA has argued that dividing oversight for security issues at drinking water and wastewater facilities between two different federal agencies is untenable, and the Association continues to work with staff for the House Transportation and Infrastructure (T&I) Committee to build support for H.R. 2883, legislation introduced by Rep. Eddie Bernice Johnson (D-Texas) and co-sponsored by Rep. James Oberstar (D-Minn.), chair of the T&I Committee, that would establish a similar wastewater security program at EPA.  The E&C Committee plans to hold a hearing on its bill July 20.  It is unclear at this stage whether E&C is going to mark up its bill separately or as part of the larger CFATS reauthorization bill.  NACWA will continue to advocate for sensible security regulations for water infrastructure and will keep members apprised of important developments as they happen.

NACWA wishes a safe trip for everyone traveling to Milwaukee for next week’s 2009 Summer Conference & 39th Annual Meeting!