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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: April 1, 2010

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to April 1, 2010.  Please contact NACWA's Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Top Stories

NACWA Plans Meeting with White House on Regulatory Status of Biosolids, Incineration

NACWA is working to schedule a meeting with the White House’s Office of Management and Budget (OMB) to discuss the U.S. Environmental Protection Agency's (EPA) forthcoming proposal that is expected to define biosolids that are combusted as a solid waste – a ruling that will have major impacts on sewage sludge incinerators (SSIs) and potentially on other biosolids management options.  During a March 4 meeting with EPA staff from the air, waste and water offices, NACWA expressed its ongoing concerns with two Agency rulemaking efforts: the rule that is likely to expand the definition of solid waste now under review by OMB and proposed maximum achievable control technology (MACT) standards for SSIs.  NACWA's chief concern has been that EPA's carefully crafted balance among the three media offices with regard to the regulation of biosolids could be upended by these new rules.  The rule currently under review by OMB was developed by the Office of Resource Conservation and Recovery (ORCR) and articulates EPA's regulatory definition of non-hazardous solid waste.  The definition will be used by EPA's air office to determine how several categories of incinerators, including SSIs, will be regulated under the Clean Air Act (CAA), either under the more stringent CAA Section 129 MACT standards or the more flexible Section 112 program.  NACWA, through the use of its Targeted Action Fund (TAF), has consistently made the case that biosolids should not be included in the definition of solid waste currently under development, and that the CAA specifically directs EPA to regulate SSIs under Section 112, not 129.  ORCR's proposed definition of non-hazardous solid waste must be signed by April 15 for the air office to meet its deadlines on several other unrelated incinerator rulemakings.  The MACT standards for SSIs must be finalized by December of this year.

NACWA remains concerned that any EPA statement that biosolids are a solid waste could not only have implications for incineration but could spill over and impact other management options like land application.  Of primary concern to EPA’s waste office and ORCR is its ability to retain authority over biosolids under its imminent hazard provisions in Section 7003 of RCRA.  During its March 4 meeting, NACWA detailed how ORCR can craft a regulatory definition of non-hazardous solid waste that excludes biosolids managed under the Part 503 regulations.  EPA has done this in the past, specifically excluding biosolids managed under Part 503 from its Part 257 solid waste regulations, and NACWA believes the Agency must again exclude biosolids from its new definition to preserve the careful balance among the air, waste and water programs and avoid duplicative regulation for biosolids.  Creating a regulatory exclusion from the new definition for biosolids managed under Part 503 will preserve EPA’s 7003 authority, avoid any of the unintended consequences associated with the solid waste stigma for biosolids, minimize unnecessary cost implications at a time when public agencies are struggling financially, and ensure that SSIs are properly regulated under Section 112 of the CAA.

NACWA will highlight these same concerns when it meets with OMB.  NACWA also continues to meet with EPA’s air office to outline the legal arguments for regulating POTWs, including SSIs, under Section 112 of the CAA, not Section 129.

NACWA Underscores Concerns on Blending in Letter, Meetings with Senior EPA Staff

Following up on a February 18 meeting with Pete Silva, EPA’s Assistant Administrator for Water, NACWA highlighted its concerns over the lack of a final policy statement on the status of peak wet weather flow blending in a March 8 letter to Silva.  Since EPA’s release of its 2005 proposed policy, there has been significant confusion in the states and EPA regional offices regarding the appropriate approach to addressing peak flow blending in Clean Water Act (CWA) permits.  Where EPA regional offices have sought guidance from Headquarters, the message has been clear – blending constitutes a bypass, and in accordance with the bypass regulations and the December 2005 proposed policy, a ‘no feasible alternatives analysis’ must be completed before permitting can proceed.  During recent meetings with other senior Office of Water officials, NACWA has learned that EPA’s options for the blending issue also include a more comprehensive sanitary sewer overflow (SSO) policy.  The decision on how to proceed on blending and SSO issues more broadly will be made at the Administrator’s level in the coming months and may include an interim path forward on blending along with a longer-term effort for a more comprehensive package to address SSO issues and collection system management.

NACWA's March 8 letter and subsequent conversations with EPA have emphasized that the Agency’s assertion that peak flow blending should be handled under the bypass regulation is a new interpretation and a significant departure from long-standing practice, and that EPA cannot simply change its mind and apply an aggressive interpretation of the bypass rule without a clear and final articulation of this policy shift that allows for appropriate public review and comment.  EPA’s application of this new interpretation will have major cost impacts on utilities, both in conducting the 'no feasible alternatives analysis' and in implementing any identified alternatives, as well as potentially "sunk costs" in terms of investments already made.  Simply stated, permit writers and utilities need clear and definitive direction.  As recently as 2003, EPA issued a proposal stating that peak flow blending for sanitary sewer systems was not a bypass and could be authorized in a CWA permit.  For decades the Agency has sanctioned state permitting programs that specifically identify and authorize peak flow treatment scenarios.  NACWA’s letter reiterated that EPA must not continue implementing its CWA permitting program based on a new interpretation of a decades-old rule that hinges on a non-final policy proposal.

Air Quality

EPA Issues Rule on Reciprocating Internal Combustion Engines; NACWA Comments Addressed

In a March 3 Federal Register notice, EPA released a final rule on National Emission Standards for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE) that is effective on May 3, 2010.   The NESHAP revises 40 CFR part 63, subpart ZZZZ, and applies to existing stationary compression ignition (CI) RICE with a site rating of 500 hp or less located at major sources of hazardous air pollutants (HAP), existing non-emergency stationary CI engines that are located at major sources of HAP and have a site rating of greater than 500 hp, and existing CI RICE located at area sources.  The rule also revises NESHAP for periods of startup, shutdown, and malfunction for RICE.  In response to public comments, EPA did not include spark ignition (SI) engines in this final rule, and will instead collect more data and promulgate a final rule for SI engines in August 2010.

In the proposed NESHAP for RICE, which appeared in a March 5 Federal Register notice, stringent carbon monoxide emission limits were proposed for RICE.  NACWA’s comments on the proposed rule stated that these low emissions levels, while perhaps appropriate for new engines, impose a cost on engine owners that has not been justified in the proposed regulations.  Stringent emissions controls are especially inappropriate for engines at wastewater utilities that use digester gas, since these engines reduce a facility’s greenhouse gas (GHG) emissions.  NACWA also stated that the cost of controls for emergency use engines, which are rarely operated, was not justified in the proposed rule, and instead a higher carbon monoxide limit for digester gas and emergency use engines should be set, or maintenance, inspection, and operation standards should be established.

EPA addressed most of NACWA’s concerns in the final rule.  Engines that use landfill or digester gas equivalent to 10 percent or more of the gross heat input on an annual basis are exempt from all of the emissions requirements in the final rule.  In addition, all emergency CI engines at area sources of HAP are subject only to management practices, as are all existing non-emergency CI engines less than or equal to 300 hp located at area sources.  Existing stationary CI engines smaller than 100 hp located at major sources are exempt from emission limitations, and emergency engines at major sources are not subject to emissions standards.  NACWA will provide more details about the final NESHAP for RICE in an upcoming Advocacy Alert.

Climate Change

EPA Announces Phased-In Greenhouse Gas Emissions for Stationary Sources

On March 29, EPA announced a final rule that will delay greenhouse gas (GHG) emission controls for stationary sources under the prevention of significant deterioration (PSD) and Title V programs of the Clean Air Act until January 2011.  The final rule is expected to be published soon in the Federal Register.  EPA initially planned to begin regulating GHG emissions for stationary sources under the Clean Air Act (CAA) when it released a final rule on car and light-duty truck emissions standards on April 1.

EPA proposed a GHG "Tailoring Rule" in 2009 that would raise the emissions threshold for GHGs for PSD and Title V applicability to 25,000 tons per year (tpy) of carbon dioxide equivalent. NACWA’s comments on the Tailoring Rule reiterated the Association’s position that GHG emissions should not be regulated under the CAA, and instead Congressional action should determine how to control GHG emissions.  If EPA does insist on CAA regulation of GHG, NACWA supported raising the emissions threshold for PSD and Title V applicability to a much higher level than the proposed 25,000 tpy.  EPA announced on March 3 that in the first half of 2011, PSD requirements for GHG emissions would only apply to sources that are already covered by PSD for criteria pollutants.  In the second half of 2011 and in 2012, EPA plans to apply PSD requirements to sources emitting more than 75,000 tpy.  After 2012, the threshold will likely be lowered.  EPA has not clarified if Title V requirements would also follow these thresholds, and it has not specified when the final Tailoring Rule will be released.  NACWA will keep members informed about EPA’s decisions regarding regulation of GHGs under the CAA.

Conferences and Meetings

Register Now for NACWA’s National Environmental Policy Forum

NACWA’s 2010 National Environmental Policy Forum, April 18-21 at the L’Enfant Plaza Hotel in Washington D.C., will feature discussions on the current legislative, regulatory, and legal issues that are of concern to all NACWA members and will affect the future of clean water policy.  This year’s Policy Forum will feature key Washington policymakers such as EPA Deputy Administrator Robert Perciasepe, United States Senator Ben Cardin (D-Md.), Congressman Mike Simpson (R-Idaho), and many others.  The popular Technical Roundtable Breakfast on Wednesday morning will provide an opportunity for members to meet directly with key personnel at EPA after being briefed by Office of Water leadership on the Agency’s regulatory priorities for the coming year.  An agenda, online registration, and travel information are available on NACWA’s Conferences & Professional Development webpage.  NACWA also encourages all members to meet with their congressional delegations as part of this year’s Policy Forum.  Should you need assistance securing appointments on Capitol Hill, please contact John Krohn, NACWA’s Manager of Legislative Affairs, at 202/833-4655 or at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA’s Pretreatment Workshop to Focus on Current and Next Generation Issues

With a theme of P3: The Next Generation – Its Continuing Mission to Clean the Nation’s Water, NACWA’s 2010 Pretreatment and Pollution Prevention Workshop will address a wide range of issues, including those that are affecting pretreatment programs today and issues that promise to become more important for utilities in the future.  The Workshop will be held May 19-21 at the Hyatt Regency Phoenix in downtown Phoenix, Arizona.  As in past years, staff from EPA will play an important role in the Workshop.  EPA Headquarters staff will provide updates on effluent guidelines developments, pretreatment performance measures, and other regulatory issues on the horizon, and the valuable Regional Roundtable luncheon will allow Workshop participants to meet with their EPA Regional Pretreatment Coordinator and other pretreatment professionals from their region.  An agenda and online registration are available on NACWA’s website.  The deadline for reserving a room at the Hyatt Regency Phoenix at the special conference rate of $139/night is Tuesday, April 27.  Please call the hotel directly at 602/252-1234 to make your reservation.

Enforcement

NACWA Seeks Greater Focus on Affordability in EPA’s Enforcement Strategy

NACWA sent a letter on March 24 to EPA Assistant Administrator for Enforcement and Compliance Assurance (OECA) Cynthia Giles which responds to the Agency’s announcement of its National Enforcement Initiatives for fiscal years 2010-2013.  The enforcement initiatives, released by EPA in February, include a focus on municipal wet weather issues such as combined sewer overflows and sanitary sewer overflows, and also discussed the importance of finding "affordable and timely" solutions to these challenges, including the increased use of green infrastructure.  NACWA’s letter notes that while identification of affordability issues is a step in the right direction, EPA still needs to explain how it plans to consider affordability within the context of the municipal wet weather enforcement imitative.  In particular, the letter cautions EPA against continued reliance on its 1997 affordability guidance document, stating that "acknowledging the importance of ‘affordable solutions’ in municipal wet weather enforcement is a step in the right direction, but it is only a first step.  EPA must also work on updating its outdated affordability guidance and look at the issue in a more broad and holistic manner."

The NACWA letter also reiterates the Association’s longstanding position for the use of green infrastructure as a solution to municipal wet weather challenges and supports EPA’s inclusion of green techniques in the new enforcement initiative.   Additionally, NACWA encourages EPA to allow green infrastructure to be a larger part of municipal consent decrees, stating that “EPA must be willing to accept and encourage green projects as a centerpiece of enforcement efforts and consent decrees instead of the gray infrastructure projects that have historically been required.” Developing ways to provide greater regulatory credit for the use of green infrastructure will also provide further incentive to communities to take advantage of the full spectrum of environmental, economic, and social benefits of green infrastructure.

NACWA’s letter requests a meeting with Assistant Administrator Giles and her staff to further discuss the municipal wet weather enforcement initiative and how affordability and green infrastructure will be incorporated.  NACWA will keep the membership updated on developments as they occur.

EPA

Based on NACWA’s Request, AA for Water to Hold Regular Meetings with Muni Groups

In a September 9, 2009 meeting with Assistant Administrator for Water Peter Silva to discuss NACWA’s priority issues, the Association provided Silva a letter outlining the Association’s advocacy priorities and stating "NACWA strongly urges you to consider holding a monthly meeting with key representatives from national municipal organizations, including NACWA, on water sector issues — similar to the industry ‘coffees’ that your office has traditionally participated in."  NACWA has learned that Silva and key EPA staff have agreed to hold bimonthly meetings with key municipal wastewater and water organization staff for the remainder of this Administration, demonstrating the importance of the municipal community’s perspective on water quality and drinking water issues.  The first such meeting has been scheduled for April, and NACWA will provide updates to its membership on relevant discussions from these meetings as appropriate.

Facilities and Collection Systems

NACWA Workgroup Makes Progress toward Petition on SSO/Collection System Issues

A workgroup of NACWA members met on March 17 to identify the major elements of a potential petition that the Association plans to file with EPA seeking a national rule on sanitary sewer overflow (SSO) and collection system issues.  The workgroup, made up of leaders from key NACWA standing committees, was formed in response to a directive from the NACWA Board of Directors at February’s Winter Conference to prepare a petition asking EPA for a national rule on SSO and collection systems issues.  The Board endorsed and authorized Targeted Action Funds (TAF) for this action in response to the increasing need to provide national consistency and predictability for clean water agencies regarding SSOs.  The workgroup agreed on several broad topics for the petition to address, including a historical overview of NACWA’s position on the issue, a description of why such a rule is of critical importance now given the current economic climate, and an outline of the main regulatory issues NACWA believes should be included in a rule.  The workgroup will continue to refine these ideas and work on a draft document over the coming months with a goal of completing its work prior to the NACWA Summer Conference in July.  The workgroup will, of course, tailor its strategy based upon EPA’s potential course of action toward a national SSO policy (see related story on blending).  NACWA will keep the membership updated on this effort as it progresses.

NACWA/WEF Group Discusses Problems of Flushed Non-Dispersible Products

In response to concerns expressed by NACWA members regarding "flushable" wipes that can cause clogging at pumps and treatment plants, the Association has partnered with the Water Environment Federation (WEF) to create a working group to further examine the issue and to review "flushability protocols" developed by the nonwoven fabrics industry.  The working group held its first conference call in March and decided to broaden the focus of the group to other products that are non-dispersible but are commonly flushed, creating problems for the sewer system.  The working group also decided to collect data from utilities to document the damages and costs associated with non-dispersible flushed products, which will be useful in educating the public and the manufacturers and marketers of these products.  The groups will continue its review of a guidance document published by INDA, the U.S.-based association of the nonwoven fabrics industry, as well as a document developed by the Procter & Gamble Company that was reviewed by a panel of independent experts selected by the Water Environment Research Foundation (WERF).  INDA has welcomed suggestions from NACWA on how the guidance document could be improved.  The working group also discussed legislation proposed in California that would restrict the types of products that could be labeled as "flushable."

A panel presentation at the NACWA’s 2010 Pretreatment & Pollution Prevention Workshop will focus on this topic and will include Rory Holmes, the President of INDA.  The working group will continue to discuss the issue and make recommendations for any future advocacy work by NACWA.  Association members who are interested in joining the group, or in sharing information about problems caused by flushable wipes at their utility, should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/296-9836.

Security and Emergency Preparedness

Free Access to WaterISAC Security Resources Available

EPA and the WaterISAC are offering 12 months of free access to WaterISAC Pro for new subscribers.  The WaterISAC was established in 2002 as a nonprofit water-sector organization to support infrastructure protection, and its online library now contains more than 2,000 white papers, best practices, and research reports, as well as chemical/biological contaminant databases and vulnerability assessment tools.  Free webinars are also periodically available to WaterISAC Pro subscribers on topics such as lessons learned from natural disasters, emergency response planning, and insider threats.  In addition, the WaterISAC provides discussion forums for security and emergency preparedness issues.  Staff of drinking water and wastewater utilities may take advantage of this offer if their jobs have a connection to water security and/or emergency response.  NACWA encourages all public agency members who are not currently subscribers to WaterISAC to sign up for this free access trial at www.waterisac.org.

Stormwater

NACWA Files Comments on EPA’s Draft Stormwater Rule

NACWA submitted written comments on February 26 to EPA providing the Association’s perspective on the Agency’s planned stormwater rulemaking process.  The comments, filed in response to a December 28 Federal Register notice, express support for innovative ideas to address the growing water quality issues created by stormwater, but also caution EPA that any future regulations must be sensitive to the financial, regulatory, and political realities currently facing the nation’s stormwater and clean water utilities.

NACWA’s comments state that EPA should conduct additional research on the performance of current stormwater techniques before embarking on a large-scale revision of existing regulations and also emphasize the importance of federal regulations not conflicting with existing state or local stormwater rules.  NACWA’s comments also support the use of green infrastructure by developers in both new development and redevelopment to manage stormwater flows on-site through infiltration and evapotranspiration.  The Association, however, opposes any mandate for the use of green infrastructure, and instead encourages EPA to develop regulations that are flexible enough to account for the varying types of geography, climate conditions, and soil conditions that can impact the effectiveness of various stormwater management practices.  This will ensure that communities can choose the management practices best suited to their local needs.  Additionally, the Association’s comments expressed strong opposition to any new regulations that would require stormwater utilities to retrofit existing areas of development within the stormwater sewer system, citing the enormous cost of such an effort at a time of limited municipal resources.

NACWA’s comments were compiled from Member Agency submissions sent in response to Advocacy Alert 10-05.  Additional information on EPA’s stormwater rulemaking process is available on the Agency’s website.  EPA is expected to develop the new rule over the next three years and NACWA will be actively engaged with the Agency during that process advocating on behalf of our members.

Water Quality

Science Advisory Board Report Critical of EPA Nutrient Criteria Guidance

During a March 24 teleconference, EPA’s Science Advisory Board (SAB) reaffirmed the findings of the Board’s Ecological Processes and Effects Committee that a new EPA guidance document on deriving numeric nutrient criteria should not be used by itself to derive criteria values and recommended significant changes to the document before it is finalized.  The full SAB used the teleconference to conduct a ‘quality review’ of the Committee’s draft report, released February 17, which concluded that EPA needs to make improvements to is draft Empirical Approaches for Nutrient Criteria Derivation guidance for developing numeric nutrient criteria.  At the urging of several stakeholders, including NACWA, the Office of Water asked the SAB to review the document, a process that began in September 2009.  In the report, the SAB expressed several concerns with the document, including the use of the highly controversial conditional probability approach and EPA’s reliance on statistical approaches that cannot demonstrate, by themselves, a causal link between nutrient levels and effects on water quality.  NACWA raised similar concerns in its comments to the SAB last September.  NACWA will closely monitor this as EPA works to address the SAB’s findings.

EPA Releases Great Lakes Restoration Initiative Action Plan

On February 21, the Environmental Protection Agency (EPA) announced a five year, $2.2 billion strategy which aims to protect and restore the environmental quality of the Great Lakes Basin ecosystem.  The Great Lakes Restoration Initiative Action Plan (Initiative) outlines five principal areas of focus: toxic substances; invasive species; nearshore health and nonpoint source pollution; habitat and wildlife protection and restoration; and accountability, education, monitoring, evaluation, communication and partnerships.  EPA’s 1995 Final Water Quality Guidance for the Great Lakes System focuses on establishing stringent water quality standards.  The 2010 Initiative builds on the GLI but differs from the 1995 effort, as it encompasses a variety of additional environmental issues compromising the Great Lakes watershed.

The Great Lakes Regional Collaboration Strategy (GLRC Strategy) developed by key members from federal, state and local governments and other stakeholders, serves as the framework for the Initiative and includes specific issues and milestones for each area of focus.  Within the focus areas, the Initiative establishes goals for nonpoint source pollution such as creating new buffer strips; restoring and protecting wetlands; generating new acres of basin cropland; reducing agriculture’s impact; and improving flow regimes.  The Initiative will also seek to propose a toxic pollutant strategy to eliminate the discharge of all toxic substances.  NACWA will keep members informed and will continue to closely monitor EPA’s development of the Initiative’s Action Plan.