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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to March 7, 2011.  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 Scores Key Victory on SSI Rule but Legal Action May Still Be Necessary

EPA released its final maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs) on February 23 with a pre-publication version of the rule that is now available.  The rule will be published in the Federal Register in the next few weeks.

The most significant change from the proposal was the removal of the overly stringent “beyond the MACT floor” level of control for mercury, a direct result of NACWA’s advocacy over the past year and a half.  This advocacy has been aimed at improving the Agency’s understanding of sewage sludge and SSI operations.  After taking NACWA’s input and data into account, revising its emission estimates, and looking at the true cost of controlling mercury at SSIs, EPA determined that the beyond the floor reductions were not cost-effective.  Most of the cost impacts of the proposed rule were related to controls necessary to meet the “beyond the MACT floor” limit for mercury and NACWA is pleased that this key change will likely save municipalities more than $1 billion nationally in capital costs alone.  Based on NACWA’s advocacy efforts, EPA acknowledged in the final rule that it underestimated the cost to remove mercury – and that actual SSI contributions of mercury to the environment are a third of the Agency’s initial estimate.  EPA is now estimating that the total capital cost for implementing the entire rule would be $55 million dollars nationally, compared to its original estimate of $200 million.

Based on an initial review, NACWA remains concerned about the mercury emission standards.  EPA is estimating that no controls will be needed to meet the final mercury limit, but NACWA is working to confirm this claim and evaluate the Agency’s new cost estimate.  While EPA had limited time to make revisions to the proposal, a number of other substantial changes were made in the final rule based on the comments submitted by NACWA and its members.  Members are encouraged to review the final standards to determine how the changes may lessen the impacts of the rule for their utility.  Most members will likely not have the stack testing information to evaluate what additional controls will be needed to meet the standards, so NACWA is working to collect information that might help members evaluate these impacts.  NACWA is also working to develop a more in-depth summary of the final rule and the major obligations it imposes on clean water agencies.

EPA also released its definition of solid waste rule on February 23, which has been developed in parallel with the SSI MACT rule.  As expected, the final rule states that the domestic sewage exclusion has never applied to sludges generated at publicly owned treatment works (POTWs) and defines biosolids that are combusted as a solid waste.  In the final rule, EPA reiterates that SSIs are primarily used to reduce the volume of the material, not recover energy, and that the burning constitutes discarding of a waste.  EPA did further narrow the focus of its discussion of the definition to clarify that it would have no impact on other sludge management options, like land application, one of the major changes NACWA had requested.  However, like the proposal, EPA continues to make a blanket determination that all sewage sludge would not meet the legitimate fuel standards due to its high level of contaminants when compared with a comparable, traditional fuel (i.e., coal).  This determination means that sludge being burned in any kind of unit, including those that are expressly designed to recover energy, will be considered a solid waste.  Such a determination will clearly have wide implications beyond the incinerator community.

NACWA is currently reviewing both rules to determine appropriate next advocacy steps, including legal challenges to the rules.  The NACWA Board of Directors has previously approved NACWA filing challenges to the final rules if the Association determines that such actions are necessary.  With regard to the SSI rule, NACWA is evaluating both an administrative petition for reconsideration to EPA, as well as a legal petition for review through the federal court system.  One of NACWA’s key issues that has yet to be resolved, and would likely be the lead argument in any litigation over the final rule, is EPA’s lack of authority to regulate SSIs under Section 129 of the Clean Air Act.  NACWA continues to believe that SSIs are more appropriately regulated under Section 112 of the Act.

NACWA is also prepared for the possibility that some activist groups may file their own legal challenge to the rule objecting to the reduced mercury limits.  In such a scenario, NACWA would likely need to intervene to defend EPA's decision to make the mercury emissions limits less stringent and more cost-effective.  NACWA is also deeply concerned about the impacts of the definition of solid waste rule both on SSIs and potentially on other forms of biosolids management, and is actively evaluating a legal challenge to this rule as well.

NACWA is convening a conference call with its incinerator members on March 9 at 1:00 pm Eastern.  Contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you would like more information about the call.

NACWA Urges Action on Key Clean Water Priorities with EPA’s Acting Water Chief

NACWA and several public agency members met with Nancy Stoner, the incoming Acting Assistant Administrator for EPA’s Office of Water (OW) and approximately ten OW policy personnel on February 9 to discuss the range of NACWA’s priority advocacy issues.  Stoner expressed a desire to work closely with NACWA in a variety of areas.  On the issue of sanitary sewer/collection system policy, including peak excess flow blending, Stoner indicated that much work had already been done in this area and suggested that using the 2001 draft proposed sanitary sewer overflow rule as a starting point could work and added that a potential second track could be created for those communities who want to prepare and implement an integrated wet weather plan.  It was unclear exactly what this wet weather plan alternative might look like, but it will likely serve as a discussion item for future meetings with EPA.  EPA also noted that work on many other complex issues is already underway, including a stormwater rule, and that the Agency’s resources were limited in terms of beginning from scratch on a new sanitary sewer rule.

EPA and NACWA also revisited the appropriate interpretation of a November 2010 EPA memo that encourages permit writers to consider numeric limits in municipal stormwater permits.  In NACWA’s view, this is a major policy shift from EPA’s previous position.  NACWA responded to this memo with a strong letter to EPA on January 28.  This letter challenged both the content of the letter and the process that resulted in this policy shift as inconsistent with existing statutory and legal requirements for municipal stormwater control.  While EPA felt that NACWA’s interpretation of the memo was not what the Agency intended, there was some agreement that it would benefit from additional Agency clarification.  NACWA is now working to set up a meeting with EPA, together with the American Public Works Association (APWA) and the National Association of Flood and Stormwater Management Agencies (NAFSMA), who also signed onto the January 28 letter.

NACWA, Member Agencies to Comment as EPA Seeks Input into President’s Call for Regulatory Review

EPA is now inviting key stakeholders, including NACWA, to comment on how it should implement the directives contained in President Obama’s January 18, 2011 Executive Order (EO) 13563, “Improving Regulation and Regulatory Review.”  EO 13563 directs each federal agency to consider “how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome.”

The Executive Order calls on every agency, including EPA, to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency’s regulatory program more effective and or less burdensome in achieving its regulatory objectives.”  The EO also specifically requires agencies to “identify and use the best, most innovative and least burdensome tools for achieving regulatory ends.  It must take into account benefits and costs, both quantitative and qualitative [emphasis added]."

The EO is an important opportunity to raise issues about regulatory prioritization and affordability concerns.  These issues were a focus of NACWA’s recent Money Matters Summit & Fly-In (see story below).  EPA will be soliciting stakeholder input regarding the design of its plan via the Agency’s website through March 20, 2011, and NACWA will be providing comments.  In addition, NACWA will be participating in a public meeting on EPA’s efforts in Washington, D.C. on March 14.  More information about these meetings is available on EPA’s website.  By late May, EPA will provide the public with its retrospective review plan, as well as the initial list of regulations it plans to review.

Air Quality

EPA Releases Final Rule on Boiler Emissions

On February 23, EPA released the final rule on National Emission Standards for Hazardous Air Pollutants (NESHAP) for industrial, commercial, and institutional boilers at area sources, which may affect some NACWA members.  A pre-publication copy of the final rule and fact sheets are available on EPA’s website.  The rule establishes emissions standards for large boilers, with a heat input capacity greater than 10 million British thermal units per hour (MMBtu/hr), while only work standards are required for small boilers, consisting of tune-ups every two years.  Because of the substantial changes made to the rule based on the large number of comments received on the proposed rule , EPA is beginning a reconsideration process for the rule and may make further revisions.

Although the Association is still reviewing the final NESHAP, it appears that several issues raised by NACWA in its comments on the proposed rule last year were addressed in the final rule.  NACWA requested clarification on the definition of gaseous fuel boilers, which are exempt from the emissions standards.  The Association also asked that boilers that usually operate on biogas, but must also use other fuels on certain occasions, be included in this category of exempted gaseous fuel boilers.  EPA stated during a February 23 conference call with stakeholders that this issue had been addressed in the final rule, but was unable to provide any details.  EPA seems to suggest in its response to comments that gas-fired boilers that use other fuels during times of gas curtailment are still classified as gaseous fuel boilers.  NACWA and its Air Quality Workgroup will review the final rule and will likely submit comments again asking for further clarification on this issue as part of EPA’s reconsideration of the rule.

Climate Change

EPA Extends Deadline for Submission of Greenhouse Gas Emissions for Reporting Rule

EPA has extended its deadline for reporting 2010 greenhouse gas (GHG) emissions under the Mandatory Reporting of Greenhouse Gases Rule .  This rule requires that facilities with GHG emissions greater than 25,000 metric tons per year submit annual reports to EPA.  According to EPA’s Greenhouse Gas Reporting Program website, the original deadline of March 31, 2011, was extended to “allow EPA to further test the system that reporters will use to submit data, and give industry the opportunity to test the tool, provide feedback and have sufficient time to become familiar with it prior to reporting.”  The new deadline is expected to be late this summer, although EPA has not yet established the exact date.

The wastewater treatment process is exempt from reporting requirements, but utilities may still need to report GHG emissions from combustion of fossil fuels in stationary combustion units.  NACWA recommends that all member agencies estimate their GHG emissions that are subject to this rule to determine if they exceed the reporting threshold.  More guidance on calculating emissions is contained in Advocacy Alert 10-28.

EPA Seeks Input on Tools for Climate Ready Water Utilities

EPA has developed its Climate Ready Water Utilities (CRWU) initiative to assist water and wastewater utilities in implementing climate change adaptation strategies, resulting in a more resilient water sector.  The National Drinking Water Advisory Council (NDWAC) established the Climate Ready Water Utilities Working Group to evaluate the concept of “climate ready water utilities.” Antonio Quintanilla, Vice Chair of NACWA’s Climate Change Committee and Assistant Director of Maintenance and Operations at the Metropolitan Water Reclamation District of Greater Chicago, was the NACWA-nominated member of this working group.  In its report to EPA, the NDWAC provided 11 findings and 12 recommendations to help develop and support a program that enables utilities to attain a state of climate readiness.

EPA has developed several CRWU-related tools and resources to address these findings and recommendations, and the Agency is looking for volunteers to review and assist in the development of each of these tools:

• The Climate Resilience Evaluation and Awareness Tool (CREAT) is an interactive tool designed for water and wastewater utilities to assess the risk of potential climate change impacts on their assets, operations, and missions by guiding users through a flexible, systematic assessment process.  CREAT also provides regional climate change information that includes a list of potential impacts to utilities and directs users to a library of adaptation measures.  Users can draw from this library to develop their own adaptation plans which can include their custom-designed adaptation measures as well.
  
  A second version of CREAT is currently being developed.  Updates to the software will include an energy efficiency module and incorporation of utility extreme weather data and supplemented scenario based planning functionality into the tool.

• The Utility Climate Change Adaptation Measures Guide is being developed to provide information on existing and suggested adaptation measures.  This guide will leverage climate science information in CREAT, as well as provide regional climate information and associated adaptation measures.

• The CRWU Toolbox is a searchable web-based database that contains climate-related resources that assist utilities at all stages of the planning and decision making process, from raising general awareness to implementing mitigation and adaptation measures.  In addition, an upgraded user interface and other modifications are currently being developed.

• Tabletop Exercise Tool for Water Systems: Emergency Preparedness, Response, & Climate Resiliency (TTX Tool) assists users in planning, customizing, and conducting water sector-specific tabletop exercises on five climate change scenarios.  Background technical information included in the tool provides a brief introduction to climate science and how climate impacts may affect utility operations.
  

Please contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you are interested in providing EPA with the utility perspective for any of these tools.

Conferences and Meetings

Save the Date for National Environmental Policy Forum and Pretreatment Workshop

NACWA’s 2011 National Environmental Policy Forum, May 8-11 at the Westin Washington D.C. City Center, will feature discussions on the legislative, regulatory, and legal issues that are currently facing NACWA members and will shape future clean water policy developments.  The annual Policy Forum provides a unique opportunity for NACWA members to meet directly with EPA staff and with their congressional delegations.

The NACWA 2011 Pretreatment and Pollution Prevention Workshop will be held May 18-20 at the St. Louis Union Station Marriott in St. Louis, Missouri.  The Workshop will continue its tradition of presentations and discussions on both the issues that are currently confronting pretreatment programs and the emerging issues that are becoming more important to utilities.  This year’s Workshop will feature expanded networking and discussion periods for participants.

Registration information and agendas for both the Policy Forum and the Pretreatment Workshop will be posted soon on NACWA’s Conferences & Professional Development webpage.

NACWA Members Take Message of Regulatory Prioritization to Congress and EPA

NACWA's Money Matters Summit & Fly-In was held March 1-2 in Washington, D.C. with nearly 50 public clean water agency leaders coming together to bring a focused message to EPA and Congress.  The Summit featured presentations and dialogue with EPA staff, including Loren Denton, Acting Chief of the Municipal Enforcement Branch in the Office of Enforcement and Compliance Assurance’s Water Enforcement Division, and Jim Hanlon, Director of the Office of Wastewater Management in the Office of Water.  During these discussions with EPA staff, NACWA members expressed growing concern about their inability to determine which among the expanding array of Clean Water Act requirements they should comply with first, and the lack of ability to realistically balance cost with water quality benefits.  For more information, see the summary of the Summit in the March 4 Clean Water Current.

Emerging Contaminants

NACWA and Food & Water Watch Extend Triclosan Survey Deadline

NACWA and Food & Water Watch (FWW) have extended the deadline for responding to their short, anonymous survey on triclosan to March 18.  Triclosan is a popular antimicrobial pesticide used in consumer products including soaps, detergents, cleaning products, and toothpaste, but may have adverse human health and environmental impacts, and it is often found in biosolids.  FWW plans to use the results of this survey to highlight the need for a precautionary approach, namely a ban on the non-medical uses of triclosan and will include the survey results in a report that it will use to advocate for this ban.  Introduction of a bill banning triclosan is expected later this year and FWW held a well-attended congressional briefing about triclosan on February 17.  NACWA will use the survey results in its advocacy efforts with EPA for better testing during the pesticide approval process and in its ongoing National Dialogue on Safe and Sustainable Consumer Products, which seeks to keep pollutants out of the sewer system rather than requiring clean water agencies to remove them.

Many NACWA member utilities have already completed the survey and NACWA requests that utilities that have not yet completed the voluntary survey do so by Friday, March 18.  Each utility should submit only one response to the survey, which consists of 16 yes/no type questions and opportunities to explain some answers and provide additional comments.  Members with questions about the survey should contact Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA

EPA, State Revolving Funds Face Significant Budget Cuts

Proposed fiscal year (FY) 2012 budgets from President Obama and Congress indicate that that EPA and its programs for improving wastewater infrastructure will be facing significant budget cuts next year.  President Obama’s proposed request includes $8.973 billion for EPA, a 13 percent decrease from the Agency’s FY 2010 budget.  The request includes $1.5 billion for the Clean Water State Revolving Fund (CWSRF), down $500 million from the President’s FY 2011 request.  The Drinking Water State Revolving Fund (DWSRF) is similarly affected, with the FY 2012 request of $950 million constituting a $397 million decrease from the FY 2011 request.

In its budget request, the Administration indicated that its long-term goal is to have the SRFs provide an average of five percent of total water infrastructure spending annually.  NACWA believes this amount is insufficient to create a partnership that can address the 20-year $500 billion estimated funding gap between repair and replacement needs and available funding for wastewater infrastructure.  With Congress also pushing for extensive budget cuts, even this goal is unlikely to be realized.

Although federal spending on clean water infrastructure will likely be decreasing, the Administration’s proposed FY 2012 budget requests an increase of funds for federal enforcement activities.  NACWA continues to voice the message that the clean water program warrants federal support to do the job right, but is also asking the federal government through the Association’s Money Matters campaign to rethink its regulatory and enforcement approaches to enable smarter investment in clean water.

Facilities and Collection Systems

NACWA Joins EPA, Other Advocacy Groups to Discuss Green Infrastructure Issues

NACWA and other organizations met with EPA on February 18 to discuss ways the Agency can reinvigorate its green infrastructure partnership and advance national efforts to promote the use of green infrastructure.  The meeting marked an important opportunity for members of the original green infrastructure partnership, which included NACWA, the Natural Resources Defense Council (NRDC), the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), and the Low Impact Development Center (LID Center), to discuss with EPA how best to continue advancing the goals of the partnership’s 2007 Green Infrastructure Statement of Intent and 2008 Green Infrastructure Action Strategy .

Participants at the meeting discussed how EPA could do more to encourage the use of green infrastructure, including clarification of the appropriate regulatory and enforcement context of green infrastructure for wet weather management, sponsorship of research to better understand the impacts and benefits of green infrastructure use, and development of additional information on the cost of implementing and maintaining green infrastructure technologies, including how communities can finance its use.  Additional information on EPA’s green infrastructure efforts is available on the Agency’s website.  NACWA looks forward to continued work with EPA and the other partnership organizations on this important effort and will report to the membership on future developments.

Water Quality

EPA Completes BEACH Act Studies, NACWA Forms Task Force to Track Development of New Recreational Water Quality Criteria

EPA has now completed all of the research it committed to in a settlement agreement over failure to meet its obligations under the BEACH Act (Natural Resources Defense Council v. EPA).  NACWA intervened in that case to ensure that EPA conducted the appropriate studies and collected sufficient information to support the development of new recreational water quality criteria for coastal waters.  EPA has since indicated that it intends to apply the new criteria nationwide, replacing the 1986 criteria for all waters designated for recreational use.  In December 2010, EPA announced that it had completed all of the required projects under the settlement agreement and that it was beginning work in earnest on the development of the new criteria.  EPA must publish the revised criteria by October 2012 to meet the terms of the settlement agreement.  At NACWA’s 2011 Winter Conference, the Association’s Regulatory Policy Committee formed a new task force to review EPA’s completed studies and track EPA’s efforts to develop the new criteria.  Given the broad potential impacts of the new criteria for combined sewer overflow programs, stormwater, National Pollutant Discharge Elimination System (NPDES) permit compliance, and more, the task force will draw upon expertise from several of NACWA’s standing committees.  The task force held its first meeting via conference call on March 3, and is planning another call for March 30.  Please contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more information on the task force or if you would like to participate in this effort.