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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to April 29, 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 Discusses New Rules, Regulatory Reform with EPA Office of Water

NACWA organized an April 13 municipal sector association meeting with Jim Hanlon, Director of the Office of Wastewater Management in EPA’s Office of Water (OW), and other OW staff to discuss a variety of clean water issues.  Hanlon reiterated that EPA has slowed its work on a comprehensive sanitary sewer overflow (SSO) rule due to budget and resource issues.  He re-emphasized his commitment, however, to holding a one-day, facilitated workshop with NACWA and other stakeholders on the SSO issue, and to pulling it together in the next three to four months.  The workshop would help EPA determine the issues that are of most importance to stakeholder groups and find points of consensus.  NACWA’s SSO Workgroup – which worked on a draft petition for an SSO rulemaking last year – believes that blending must be part of a new SSO rule proposal, and Hanlon agreed that blending would have to be part of the conversation at the workshop.

On nutrients, EPA provided an update on its efforts to develop a permit writer's guidance on nutrients.  The focus of the guidance will be on how to conduct reasonable potential determinations and write permit limits for point sources when a state only has narrative nutrient criteria.  EPA indicated that beyond the few states where EPA has permitting authority, this type of analysis and permit limit development for nutrients based on narrative criteria is not occurring.  The Agency hopes to have a draft of the guidance completed in the next six months, but has not decided whether it will release the guidance as a draft for comment, or simply release the guidance as "interim" and seek feedback on an ongoing basis.  NACWA expressed a strong preference for the former approach and indicated that it would like an opportunity to comment on the document as soon as possible.  Also on nutrients, EPA confirmed that it has asked the National Academy of Sciences (NAS) to review the costs associated with the Agency's numeric nutrient criteria in Florida.  EPA hopes the NAS review will be finished before the new criteria become effective early in 2012.

NACWA also discussed its Money Matters™ campaign and the necessity of prioritizing a new approach to regulations.  NACWA stressed that EPA’s plan for regulatory review under Executive Order 13563 is an important opportunity to examine the Clean Water Act rules and consider their cumulative impacts on utilities (see related story).  Hanlon noted that OW would likely put approximately ten rules or policies on the review list and that the scope of this review would include all existing and even prospective policies, including guidance documents and criteria, rather than being limited to actual finalized rules.  Hanlon also noted that a number of comments raised the need to review the 1997 combined sewer overflow financial capability guidance and that this was on table, as was looking at the need for a comprehensive SSO policy.  Other issues discussed with EPA included an effort between OW and the enforcement office to clarify support for green infrastructure approaches and potential work to detail how to draft permit provisions for clean water agencies that are accepting wastewater from the hydro-fracking process.

Many of the issues discussed above will be the subject of strategic discussions at NACWA’s National Environmental Policy Forum in Washington, D.C. in May.

Biosolids

Sewage Sludge Incineration Coalition, Legal Challenge to EPA Rules Take Shape

NACWA member agencies and other clean water utilities that operate sewage sludge incinerators (SSIs) continue to confirm their support for the Association’s SSI Advocacy Coalition (SSIAC).  Work has already begun on NACWA’s petition for reconsideration of EPA’s final Clean Air Act (CAA) emission standards for SSIs and initial court filings for the Association’s legal challenges to both the SSI rule and the companion “definition of solid waste” rule.  All clean water agencies that operate SSIs received a letter and information packet in March inviting them to join the SSIAC.  Though responses were requested by April 1, NACWA is working with utilities that need additional time to seek the necessary approvals.  NACWA’s petition for reconsideration and initial court filings on the SSI rule are due by May 20, and work has already begun on drafting these documents.  NACWA will need to file its separate challenge of the definition of solid waste rule by June 17, 2011.

Though NACWA is mounting a comprehensive legal effort to seek changes to EPA’s final rules, both rules have now been finalized and will remain in effect until a court rules otherwise.  Accordingly, NACWA prepared detailed Advocacy Alerts on both rules to outline for member agencies the requirements and impacts the rules will have on them.  The SSI rule is extremely complex with several key compliance dates over the next five years.  Advocacy Alert 11-11 on the CAA regulations and Advocacy Alert 11-12 on the solid waste rule provide extensive information on compliance requirements and schedule milestones.

Climate Change

NACWA Supports Biogenic Greenhouse Gas Emissions Deferral at Public Hearing

NACWA participated in a public hearing on April 5, where it urged EPA to finalize its proposed three-year deferral of biogenic greenhouse gas (GHG) emissions from Clean Air Act (CAA) permitting programs and to eventually make it a permanent exemption.  Biogenic GHGs are usually considered part of the natural carbon cycle and are exempt from all major regulatory and policy programs, including the Intergovernmental Panel on Climate Change (IPCC) and California’s cap-and-trade program.  EPA’s Greenhouse Gas Tailoring Rule, which established a tiered process for including GHG emissions in the CAA Prevention of Significant Deterioration (PSD) and Title V programs, did not include a biogenic GHG exemption, however.

In a March 21 Federal Register notice ,  EPA proposed a rule to defer biogenic emissions from CAA programs while it continues to study the issue.  The deferral applies only to carbon dioxide emissions, and not to methane or nitrous oxide emissions resulting from the combustion of biomass or biogas.  The proposal specifically defers emissions from combustion of biogas and biosolids resulting from the wastewater treatment process.  During the public hearing, NACWA emphasized the environmental benefits of utilizing biogas and biosolids for generating heat and electricity, reducing and, in some cases, eliminating utility reliance on fossil fuels and power derived from fossil fuels.  NACWA also asked EPA to explicitly defer biogenic emissions from other wastewater treatment processes, since sewage must be treated and utilities should not be penalized for their role in protecting human health and the environment.

NACWA and its Climate Change Committee and Air Quality Workgroup will review the rule and provide comments by the May 5 deadline.  Please provide any input for use in the comments to NACWA Director of Regulatory Affairs, Cynthia Finley, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by May 3.

Conferences and Meetings

NACWA Pretreatment Workshop to Focus on Ongoing and Emerging Challenges

Join your clean water colleagues for the only conference specifically designed for pretreatment professionals!  This year’s Workshop, taking place May 18-20 at the St. Louis Union Station Marriott, will take a close look at the latest developments in the pretreatment arena.  With the theme of Meeting Pretreatment Challenges, Old & New, presentations at the Workshop will focus on new solutions to old problems, such as mandatory amalgam separators to reduce mercury discharges from dentists and new programs to reduce the flushing of unused pharmaceuticals.  Staff from EPA Headquarters and the Regions will present the latest news in Agency actions on these issues.  New issues will also be featured, such as treatment of wastewater from hydraulic fracturing and the beneficial uses of food wastes in wastewater treatment processes.  The Workshop will also provide opportunities for pretreatment professionals to network and discuss problems and issues in small group sessions.

NACWA has secured a special group rate of $129 per night (single/double), at the St. Louis Union Station Marriott.  Be sure to make your reservations by Tuesday, May 3, by calling the hotel directly at 314/621-5262.  View the preliminary agenda , register online, and find other valuable information on NACWA’s website.

Emerging Contaminants

NACWA Stresses Need for Source Control and Improved Assessment of Triclosan’s Impacts, Opposes Clean Water Act Regulation

NACWA filed comments on April 8 about an EPA Notice of Availability regarding a petition filed by two groups, Beyond Pesticides and Food & Water Watch (Petitioners), to ban triclosan and develop regulations to minimize the impacts of triclosan on the environment (December 8, 2010; 75 Fed. Reg. 76461).  Consistent with comments it has filed in the past on EPA’s pesticide registration process, NACWA’s April 8 comment letter agreed with the Petitioners that EPA must do more to ensure that its actions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) do not have negative consequences for clean water agencies or the water environment.  However, NACWA strongly opposed the Clean Water Act (CWA) regulations for wastewater and biosolids that the Petitioners are also seeking.  NACWA continues to believe that the problem of triclosan’s growing presence in the environment is symptomatic of the federal government’s inability to coordinate product approval procedures with the various environmental statutes, including the CWA, and that imposing wastewater effluent or biosolids limits would unfairly penalize clean water agencies for this lack of statutory coordination at the federal level.

NACWA’s letter highlighted that the CWA provides clean water agencies the authority to regulate industrial and commercial discharges that might interfere with their treatment processes or pass through the plant untreated, but that there is no authority to regulate households, where hundreds of consumer products and other household applications containing triclosan enter the sewer system.  NACWA has long advocated that these types of contaminants of emerging concern must be regulated at their source.  Nevertheless, the pressure for action is mounting.  Several environmental NGOs have already separately petitioned EPA to use its CWA authority to regulate similar contaminants and this most recent petition, which focuses on triclosan, seeks to impose effluent limitations and biosolids pollutant levels for triclosan.  NACWA believes that the use of EPA’s CWA authorities to address environmentally relevant concentrations of triclosan or other emerging contaminants, before the federal government applies a coordinated and comprehensive evaluation process at the point of approval, is inappropriate and would likely lead to the imposition of costly and technically infeasible limits for clean water agencies.  The only practical and cost-effective means of controlling triclosan discharges is the use of existing EPA authorities under FIFRA and Food and Drug Administration authorities under the Federal Food, Drug, and Cosmetic Act (FFDCA) to control the sale and use of triclosan at its source.  NACWA will continue to track EPA’s efforts to respond to the petition on triclosan and any work that EPA may have underway to address triclosan using its CWA authorities.

Environmental Justice

NACWA to Comment on EPA Environmental Justice Initiative, Seeks Member Input

EPA is currently working to develop a list of potential tools and recommendations for better integrating environmental justice (EJ) considerations into the permitting process and into permit conditions.  Last summer, EPA launched Plan Environmental Justice 2014, a roadmap to help EPA integrate EJ concerns into the Agency’s programs, policies, and activities.  NACWA provided comments to EPA on the Plan, highlighting the issue of affordability as a key element that has, to date, been missing from EPA’s EJ programs.  EPA’s EJ efforts have been, in large part, focused on the disproportionate impact of environmental pollution on economically disadvantaged communities, but the Agency’s regulatory mandates and the very real financial burdens they represent for those same disadvantaged populations are also important.  NACWA stressed in its comments that EPA must also take into consideration the ability of these communities to continue to pay rising sewer bills that result from programs designed to meet EPA mandates.

Since releasing its Plan EJ 2014, EPA has been working on several Plan-related efforts across the Agency focused on advancing EJ.  One of those elements is the EJ Permitting Initiative through which the Agency wants disproportionately burdened communities to have full and meaningful access to the permitting process in order to ensure that permits issued under EPA’s authority address EJ issues to the greatest extent practicable.  In addition to seeking comments on the draft implementation plan for the EJ Permitting Initiative, EPA is also asking for comment on a draft list of tools and recommendations.  Included in the draft list are potential permit conditions, including enhanced monitoring and the availability of facility-specific data, and other provisions designed to address community concerns.  In addition to comments on the implementation plan and the initial draft list of tools and recommendations, EPA is seeking examples of past permits/permit processes that examined issues relating to EJ.  NACWA plans to provide comments on the EJ Permitting Initiative by May 6 and requests that any member input or comments be sent by May 3 to Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA/Regulatory Review

NACWA Submits Comments on EPA Regulatory Review Initiative

NACWA submitted comments April 4 on EPA’s plan for review of regulations under Executive Order 13563 (76 Fed. Reg. 9988, Feb. 23, 2011).  In its comments, the Association applauded the Obama Administration and EPA for recognizing the challenging economic conditions that industry and all levels of government — federal, state, and local — now face, as well as the need for greater scrutiny of Clean Water Act rules and policies and their cumulative impact.  As the comments stated, “NACWA is hopeful that EPA's regulatory review effort will not prove to be merely a perfunctory exercise.  Carried out seriously and quickly, this effort can mark a significant shift toward a renewed commitment on the part of federal regulatory agencies, like EPA, to become partners with the entities they regulate.”  NACWA incorporated into the comment record its various Money Matters™ campaign white papers and leave-behind documents as well as its recent Nutrient Issues White Paper .  NACWA made it clear that the comments purposefully “uses the word ‘policy’ throughout this document because of the strongly held belief that in order for this review process to be a serious one it must be applied not only to rulemakings as defined by the Agency but to the array of policies that essentially serve as de facto rules under different names, such as ‘guidance’ or ‘criteria’.”

In conducting this review, NACWA also recommended that a shift in the nature of regulatory or policy review at EPA “must have as its foundation stones sound science, affordability, cost, public participation, municipal flexibility, and environmental benefit.”  These foundation stones must be used to guide the review of any policy, such as the examples that NACWA specifically mentioned in its comments, which included a sanitary sewer overflow policy, EPA’s 1997 CSO affordability guidance, wet weather enforcement/consent decree actions, Florida nutrient criteria development, whole effluent toxicity testing, sewage sludge incineration rules, and, upcoming stormwater regulations.  During an April 13 meeting with EPA, Jim Hanlon, Director of the Office of Wastewater Management in the Office of Water indicated that the water office would likely put approximately ten rules or policies on the regulatory review list and that the scope of the review would include all existing and even prospective policies, including guidance documents and criteria, rather than being limited to actual finalized rules (see related story).

NACWA is meeting next week with the EPA staff in charge of the regulatory review process and will keep members informed about new developments in the review process.

Pretreatment

NACWA and Quicksilver Caucus Discuss Recommendations for Dental Amalgam Separator Rule

In anticipation of EPA’s upcoming draft rule requiring amalgam separators at dental facilities, the Quicksilver Caucus, which is led by the Environmental Council of the States (ECOS), invited NACWA members and several state pretreatment coordinators to participate in two conference calls to discuss recommendations for the rule.  EPA plans to propose the rule in October 2011 and finalize it by October 2012.  In a November 2010 meeting, NACWA provided EPA with its recommendations and concerns about the rule, which will require amalgam separators as pretreatment standards.  NACWA’s primary concern is the potential impact to utility pretreatment programs that may be required to verify compliance for hundreds of dental offices in their service areas, a substantial burden in terms of employee time and cost.  As a follow-up to this November 2010 meeting, NACWA provided EPA with additional input in April for consideration in the rule proposal.

The Quicksilver Caucus also sent a letter to EPA earlier in March with its recommendations for the amalgam separator rule.  The Caucus organized the conference calls to learn more about the pretreatment responsibilities of the utilities and to allow the states and utilities to share their views on how the rule should be structured.  NACWA’s Pretreatment and Pollution Prevention Committee and Mercury Workgroup leaders participated in the calls, along with a subset of the Mercury Workgroup that has focused its attention on dental amalgam separators.  NACWA members provided details about how their programs would be affected under possible provisions of the rule, and potential solutions for the problems associated with verifying proper installation, use, and maintenance of dental amalgam separators.  Other issues discussed included how to deal with dental discharges into septic systems when the septage is hauled to POTWs for treatment, whether separators should be required at charitable dental events, and what types of dental specialists should be required to install separators.

EPA will be providing an update on the rule development at the NACWA 2011 Pretreatment & Pollution Prevention Workshop, May 18-20, in St. Louis (see related story).  NACWA will continue to follow EPA’s actions with the rulemaking and will provide input to the Agency as needed.

EPA and Pennsylvania Address Handling of Hydraulic Fracturing Wastewater

On March 17, EPA issued a memo and frequently asked questions (FAQs) from James Hanlon, Director of EPA’s Office of Wastewater Management, to the EPA Regions to assist permitting authorities and public agencies in addressing the treatment and disposal of wastewater from the process of hydraulic fracturing, or “fracking”, used in shale gas extraction.  The FAQs help explain the wastewater issues and pollutants associated with fracking and how they can be addressed under existing regulations for oil and gas extraction, centralized waste treatment, acceptance and notification requirements for publicly owned treatment works (POTWs), pretreatment, and stormwater.

In related news, the Pennsylvania Department of Environmental Protection (DEP) released a statement on April 19 calling on all Marcellus Shale natural gas drilling operators to cease delivering wastewater from shale gas extraction to POTWs by May 19.  Currently, 15 facilities in Pennsylvania accept the wastewater under provisions of last year’s Total Dissolved Solids (TDS) regulations.  The previous administration allowed public utilities that had historically accepted drilling wastewater to continue accepting it, as long as they did not increase their input load of wastewater.  The 2010 revised regulations require POTWs to treat new or increased discharges of TDS to more stringent standards.

NACWA recently completed its hydraulic fracturing member survey where the Association found that two public agency members currently treat produced fracturing wastewater.  Although this number is small, POTW involvement could expand as the natural gas industry expands.  POTWs in seven states are currently allowed to accept fracturing wastewater.  NACWA will continue to gather information on this issue and will update membership on any developments as they occur.

Stormwater

NACWA and Key Municipal Groups Meet with EPA, Urge Changes to Stormwater Memo

NACWA met with top EPA Office of Water officials April 12 to discuss the Agency’s controversial November 2010 memo on stormwater permitting and total maximum daily load (TMDL) issues.  Also participating in the meeting were the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA).  The meeting was productive, with EPA acknowledging that they should have consulted more closely with the regulated community prior to issuing the memo and indicating that they are considering a number of potential clarifications and revisions based on concerns expressed by the municipal stormwater community.  Such changes could include clarifying that the document is not meant to require numeric end-of-pipe effluent limits for municipal stormwater permits.  EPA also agreed to pursue a more formal dialogue with the municipal community regarding the concepts outlined in the memo.  Although NACWA, APWA, and NAFSMA still do not share EPA’s interpretations of several important legal issues outlined in the document, the opportunity for additional discussion on these topics is a positive development.

As a result of pressure from NACWA and others, including a municipal letter sent to EPA in January, the Agency last month announced that it was opening up a formal comment period on the memo with a May 16 comment deadline.  This will provide EPA with the opportunity to consider changes to, or withdrawal of, the memo.  NACWA will be submitting additional comments to the Agency, including comments based on the meeting this week, again asking that the Agency withdraw the memo or make substantial changes to it.  NACWA stormwater members are also encouraged to comment on the memo and to share these comments with Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  This issue will be discussed in greater detail at the Stormwater Management Committee’s upcoming meeting as part of NACWA’s  May 9-11 National Environmental Policy Forum.

Water Quality

NACWA Briefs Key State Workgroup, EPA on Nutrient Summit Outcomes

NACWA staff and the leadership of the Water Quality Committee briefed the Association of State and Interstate Water Pollution Control Administrators’ (ASIWPCA) Nutrient Policy Committee April 19 on the findings from NACWA's Nutrient Summit last fall.  NACWA previously outlined some of the key themes from the Summit for state water regulators during ASIWPCA's mid-year meeting in March.  With NACWA's issue paper summarizing the discussions at the Summit now complete, the call with ASIWPCA's Nutrient Policy Committee focused on the key areas where NACWA and ASIWCPA members share common interest and may be able to work together.

Among other common concerns, NACWA and ASIWPCA have both stressed the complexity of the relationship between nutrients and water quality impacts and raised concerns over EPA's continued insistence on the application of numeric values for nitrogen and phosphorus to all waterbodies independent of what other monitoring data may be indicating.  With recent events in Florida and other states drawing attention to the general lack of progress on addressing nutrient-related impacts, members of NACWA and ASIWPCA have been working to identify rational approaches to making additional progress.  EPA’s recent memorandum on managing nutrient pollution provides a renewed opportunity for states and clean water agencies to look for ways to combine their efforts to develop programs for addressing nutrient-related impacts.

NACWA also discussed the new EPA memorandum and NACWA’s issue paper with Nancy Stoner, Assistant Administrator for Water, in a separate April 14 meeting.  Despite EPA’s actions in Florida, the Agency continues to stress that Florida is unique and that the real activity on nutrients is at the state and regional level.  NACWA will be meeting further with ASIWPCA in the coming weeks and months to explore key areas where the two organizations can better collaborate.  NACWA is also planning additional discussions with EPA on issues surrounding nutrient criteria development.

NACWA Reviewing New EPA Draft Document on Identifying and Protecting Healthy Watersheds

NACWA is reviewing a recently released draft technical document titled Identifying and Protecting Healthy Watersheds: Concepts, Assessments, and Management Approaches.  The draft document is intended to provide the basis for implementing EPA’s new Healthy Watersheds Initiative, which the Agency hopes will protect the nation’s remaining healthy watersheds, prevent them from becoming impaired, and accelerate restoration successes.  Historically, EPA’s programs have focused on cleaning up watersheds that are already impaired.

The draft technical document includes an overview of the key concepts behind the Healthy Watersheds approach, examples of assessments of healthy watershed components, an integrated assessment framework for identifying healthy watersheds, examples of management approaches, sources of national data, and key assessment tools. It contains numerous examples and case studies from across the country.  NACWA is determining whether to provide comments on the draft document before EPA’s June 3, 2011 deadline.