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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to May 31, 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 Files Petition for Reconsideration, Initiates Legal Challenge on SSIs

NACWA filed its petition  May 24 with the U.S. Environmental Protection Agency (EPA) requesting reconsideration and a stay of the Clean Air Act (CAA) maximum achievable control technology (MACT) standards for municipal sewage sludge incinerators (SSIs) (“Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units”; 76 Fed. Reg. 15372; March 21, 2011).

The petition for reconsideration and stay of the SSI Rule comes after NACWA filed a legal petition  for review of the final Rule on May 6 with the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).  Taken together, NACWA’s petition for reconsideration to EPA and legal challenge to the SSI Rule in the D.C. Circuit mark the start of the Association’s advocacy efforts to ensure EPA addresses fundamental flaws in the emissions limits and the significant negative environmental and economic impacts the standards will have on communities that rely on SSIs as a safe and efficient form of biosolids management.

As outlined in the petition for reconsideration, EPA’s SSI Rule contains a number of significant errors, including regulating SSI units under CAA Section 129 instead of under Section 112, where Congress directed emissions from publicly owned treatment works (POTWs) to be regulated; failing to establish subcategories recognizing fundamental class and use differences among SSIs; and ignoring data showing variability in the concentrations of metals that end up in biosolids and that affect the overall performance of each individual SSI – and thus affecting the overall achievability of the emissions standards.  The petition for reconsideration also underscores that because the flaws in the SSI Rule are fundamental and pervasive – implicating the legal authority for the rulemaking, the selection of pollutants for which standards may be established, the selection of SSI subcategories, and numerous other aspects of the Rule – it is impossible to carve out and maintain segments of the SSI Rule due to the various serious legal and technical errors.  Accordingly, NACWA believes the entire Rule should be reconsidered.

In addition to requesting reconsideration of the SSI Rule, NACWA’s petition requests that EPA stay or postpone the effective date of the final Rule pending the reconsideration process and promulgation of regulations replacing the SSI Rule.   NACWA’s request for a stay is based on the environmental, economic, and future regulatory harm that clean water utilities with SSIs could suffer if a stay is not granted.

From this point forward, the two efforts – the administrative petition for reconsideration and stay together with the legal petition for review with the D.C. Circuit – will proceed on parallel tracks.  Unless EPA indicates during the reconsideration process that it intends to reconsider the SSI Rule in its entirety, NACWA will continue its efforts to seek judicial review of the EPA standards.  NACWA’s Sewage Sludge Incineration Advocacy Coalition (SSIAC) is providing support for the Association’s advocacy efforts.  All NACWA members that operate SSIs have been invited to join the SSIAC.  Members that have not yet responded to these requests are encouraged to do so as soon as possible by contacting Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Air Quality

EPA Postpones Implementation Date for Boiler Standards

In a May 18 Federal Register notice , EPA announced that it will postpone implementing the new national emissions standards for hazardous air pollutants (NESHAP) for boilers at major sources due to legal challenges and the Agency’s reconsideration of the rule.  The final rule  was published in the March 21 Federal Register with an implementation date of May 20, along with a notice of reconsideration because the public did not have the opportunity to comment on significant revisions made to the proposed rule.  Comments will be accepted on the rule until July 15.  While POTWs are more likely to be affected by the NESHAP for boilers at area sources , which was also issued on March 21, some POTWs may be subject to the rules for major sources.  NACWA members should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any comments about the NESHAP for boilers at major sources.

Climate Change

NACWA Supports Biogenic Greenhouse Gas Emissions Deferral; Receives Response from EPA on Biogenic Emissions Report

In comments  on May 5, NACWA asked EPA to finalize its proposed three-year deferral from Clean Air Act (CAA) permitting programs of biogenic carbon dioxide (CO₂) greenhouse gas (GHG) emissions, and to eventually make the exemption permanent.  EPA proposed the deferral in a March 21 Federal Register notice  to allow the Agency more time to study the issue before deciding whether or not biogenic emissions should be included in the Prevention of Significant Deterioration (PSD) and Title V permitting programs.  The proposal specifically defers CO₂ emissions from combustion of biogas and biosolids from wastewater treatment.

NACWA emphasized in its comments that wastewater treatment is an essential service that protects public health and the environment, and that CO₂ emissions “are carbon-neutral emissions that would occur naturally anyway.”  NACWA asked that all waste-derived biogenic CO₂ emissions be excluded from CAA permitting programs, including those from wastewater treatment processes – not just those from combustion of biogas and biosolids.  The environmental benefits of using biogas and biosolids for energy were also discussed, since utilities can decrease their dependence on fossil fuels by using these biogenic energy sources.  As stated in the comments, “POTWs should be encouraged to continue development, implementation, and improvement of energy recovery methods for biosolids and biogas.”
EPA expects to release a final rule on biogenic CO₂ emissions by July 1, the date that the next tier of facilities will be brought under CAA regulation of GHG emissions.  NACWA will keep members informed of the Agency’s decision.

EPA Asks for Public Comments on Biogenic Greenhouse Gas Emissions Report

In related news, EPA responded to comments  submitted by NACWA in March about a December 14 report, Greenhouse Gas Emissions Estimation Methodologies for Biogenic Emissions from Selected Source Categories: Solid Waste Disposal, Wastewater Treatment, Ethanol Fermentation, which was written for EPA by the Research Triangle Institute.  The report attempts to provide technical guidance on how to calculate GHG emissions from the wastewater treatment process and appears to have been posted on EPA’s website without expert or public review.  NACWA is concerned that the report’s calculation methods for wastewater treatment do not accurately characterize emissions and may lead to inflated estimates.  In response to the comments EPA received from NACWA and from other industries, the Agency has now marked this report as “Draft” and has posted a notice on their website requesting public comment on it.  NACWA will continue to work with EPA to resolve the technical issues with this report.

Conferences and Meetings

Register Now for NACWA’s 2011 Summer Conference in Chicago

NACWA’s 2011 Summer Conference and 41st Annual Meeting, July 19-22, 2011 at the Westin Chicago River North in Chicago, Illinois, will explore how utility managers are working to address the growing list of internal and external challenges – ranging from workforce concerns, a new and changing landscape for project financing, rising energy costs, and additional regulatory burdens, to name a few.  With their plates already full, utility managers are looking at how efforts to become more sustainable may ultimately help them meet their current challenges.  Anchored by two highly-regarded and engaging keynote speakers, the management-focused conference will explore both emerging and existing initiatives – and the opportunities they offer utilities.

Acclaimed Designer and Architect William McDonough to Keynote, Conduct Workshop

William McDonough, internationally renowned designer, architect, and co-author of Cradle to Cradle: Remaking the Way We Make Things, will keynote the General Session on Thursday, July 21.  One of the most influential voices on sustainability, McDonough will explore how we can transform human industry from a system that “takes, makes and wastes” to a creator of goods and services that generate ecological, social, and economic value.  Thursday afternoon McDonough will conduct a workshop for conference participants on how cradle-to-cradle thinking and design can be integrated into the wastewater treatment community.

Registration is now open and additional information is available on NACWA’s website.  As an added feature, the Summer Conference offers discounted registration to Gen X/Gen Y staff (defined for this purpose as individuals born 1970–1990) attending with their NACWA Member Agency representative.  As you make your plans to attend, please contact the Westin Chicago River North to secure your hotel accommodations.  Reservations must be made by June 27 to receive the special group rate of $189/night.

Environmental Justice

NACWA Provides Input on EPA Environmental Justice Permitting Initiative

NACWA provided comments  May 6 on a permitting initiative related to EPA’s Plan Environmental Justice (EJ) 2014, which was launched last summer in an effort to integrate EJ concerns into the Agency’s programs, policies, and activities.  NACWA’s comments on the permitting initiative reiterated concerns raised in the Association’s letter  from last fall on the Agency-wide plan, asserting that affordability concerns were not sufficiently factored into the Agency’s EJ programs.  EPA’s EJ efforts have been, in large part, focused on the disproportionate impact of environmental pollution on economically disadvantaged communities.  NACWA’s letters stress that the Agency’s regulatory mandates, and the very real financial burdens they represent for those same disadvantaged populations, are also important.  NACWA highlighted 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 also asked 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 the affordability concerns, in its most recent letter NACWA also raised concern over any overly-prescriptive permitting regime developed at the federal level to address EJ concerns given the local nature of the issue.  Working to improve lines of communication and outreach can help to better address these issues at the local level, but suggesting prescriptive permit conditions, like increased or enhanced environmental monitoring, or outlining specific processes for permit writers to follow, seem to presuppose what any major local issues may be.  NACWA will continue to track the Agency’s ongoing EJ efforts to ensure they strike the appropriate balance.

EPA/Regulatory Review

EPA Releases Plan for Regulatory Review Initiative

On May 26, EPA released its draft plan  for conducting a review of existing regulations in response to Executive Order 13563.  Among the issues identified for early action by EPA was work to clarify permit requirements for sanitary sewer overflows, though EPA does not provide any commitment to work on the rule beyond a facilitated discussion planned for July 14-15 (see related story below).  NACWA met with key EPA staff May 2 to receive an update on the Agency’s efforts to meet its mandates under the executive order and to re-emphasize the Association’s position on the issues it would like to see reviewed pursuant to this process.  NACWA’s comments  on the initiative had identified a number of potential candidates for review, including the 1997 financial capability guidance for combined sewer overflows, but the Agency noted that only six water-related policies (three for drinking water and three for clean water) would be listed in its initial draft plan, and that all the listed items would be finalized rules, rather than guidance or criteria.  NACWA continues to review the draft plan and will be organizing a comment effort soon.

Facilities and Collection Systems

EPA Considering Post-Construction Stormwater Standards for Combined Sewer Systems; SSO Meeting Scheduled

During the May 9 combined meeting of the Facility and Collection System Committee and the Stormwater Committee at the NACWA National Environmental Policy Forum, Connie Bosma, Municipal Branch Chief for EPA’s Office of Water, announced that the Agency is consider expanding its upcoming post-construction stormwater rule to construction and development taking place in combined sewer system areas.  The rule is expected to require that runoff from development is equivalent to the pre-construction hydrology and to apply to municipal separate stormwater systems (MS4s).  Applying the performance standards that are contained in the rule to development in combined sewer areas would be an additional new control on stormwater discharges.  The suggestion for this additional application of the standards was suggested by unspecified stakeholder groups, and Bosma asked for input about the idea from NACWA and its members.

During the meeting, Bosma confirmed EPA’s plans for a July 14-15 facilitated discussion with stakeholder groups on a separate sewer overflow (SSO) rule.  Details of the meeting, including an agenda and invited participants, have not been released yet, but Bosma stated that EPA plans to announce the meeting in a Federal Register notice and that the public will also be invited to attend and provide input during a public comments period.  NACWA’s SSO workgroup has been discussing NACWA’s past positions on SSOs and related issues, such as blending and peak excess flow treatment facilities (PEFTFs), and will be preparing a summary of the current issues in preparation for the facilitated meeting.

Pretreatment

EPA Provides Information about Amalgam Separator Rule at NACWA Pretreatment Workshop

EPA’s upcoming proposal to require amalgam separators at dental facilities generated lots of discussion at NACWA’s National Pretreatment & Pollution Prevention Workshop, May 18-20, in St. Louis.  This topic was featured in a panel presentation with two EPA Regional Pretreatment Coordinators, Jay Pimpare from Region 1 and Al Garcia from Region 8, as well as Jeff Troupe from the American Dental Association (ADA) and Kerry Britt from the Narragansett Bay Commission (NBC).  The rule will require separators as pretreatment standards, leaving utilities responsible for implementation of the standard and enforcement.  Martie Groome, NACWA Pretreatment & Pollution Committee Vice Chair and Laboratory and Industrial Waste Supervisor at the City of Greensboro Water Resources Department, moderated the panel and opened by questioning the need for one more regulation for utilities, especially for utilities that are meeting their mercury requirements without an amalgam separator program.

Tim Potter of Central Contra Costa Sanitary District asked EPA to "break the mold" with this rule and to provide local utilities with flexibility in how they implement the rule.  Pimpare responded with "We are looking to have a giant sledgehammer to break the mold,” but noted that some key oversight and tracking components would be necessary in the rule.  Pimpare assured the Workshop participants that the EPA workgroup for the amalgam separator rule understands the potential burdens that could be placed on utilities with the rule.  “We get it, we get it, we get,” Pimpare said. “We are very, very sensitive to the implementation and enforcement concerns that have been raised by local programs… We are looking at costs as we go forward.”  Garcia outlined the various regulations, such as the Pretreatment Streamlining rule, that could affect how the amalgam separator rule is written, and Britt discussed the NBC’s mandatory amalgam separator program.  Britt emphasized the need to cooperate with dental offices, such as by conducting scheduled inspections at dental facilities, rather than unannounced inspections, to prevent disruption of patient care.  Troupe expressed the ADA’s support for the rule, as long as it follows the nine principles that ADA submitted to EPA.  The upcoming rule was also discussed during several breakout sessions and during the meeting of the Pretreatment & Pollution Prevention Committee, with utilities echoing the concerns previously expressed by NACWA to EPA about the financial and staffing burdens on utilities that could be created by this rule.  EPA is planning to propose the rule in October 2011 and to finalize the rule in October 2012.  NACWA will be closely following developments with the rule and providing input to EPA about the proposal.

EPA Highlights Pretreatment 101 Webinars, Addresses ELG Program

EPA Headquarters staff also provided updates for the Workshop participants.  Jan Pickrel, National Pretreatment Program Coordinator, discussed issues related to hydraulic fracturing, or “fracking”, used in natural gas extraction and said that EPA is “having lots of conversations with Pennsylvania” about regulations in that state.  Pickrel also provided information about the Agency’s Pretreatment 101 webinars that are providing training to thousands of pretreatment personnel, and encouraged utilities to take advantage of these webinars.  Carey Johnston, Environmental Engineer in the Office of Science & Technology, talked about the Effluent Limitations Guidelines (ELG) program.  Johnston emphasized the need for individual utilities to comment on the ELG plan in addition to NACWA’s comments, since the number of comments that EPA receives can help determine which categories and issues are addressed in the ELG plan.

Other panel presentations focused on the use of take-back programs to properly dispose of unused pharmaceuticals and the beneficial use of food wastes in the wastewater treatment process.  Both topics generated significant interest from Workshop participants.  Carey Johnston of EPA assured participants that EPA is not planning regulations of health care facilities, and is only developing voluntary best management practices to help these facilities properly dispose of unused drugs.  Many utilities are looking at possible use of food wastes to save supply costs and enhance generation of methane for energy use, and the case studies presented by utilities illustrated the variety of methods that could be used for this purpose.

The Workshop concluded with presentations on the San Francisco Bay area’s regional mercury control program, development of a regional fats, oil, and grease (FOG) program, and case studies of pretreatment investigations of mysterious discharges.  Presentations from the Workshop are available on NACWA’s Conferences and Professional Development website.

Security and Emergency Preparedness

Water Sector Coordinating Council Meets to Discuss Utility Security Issues

The Water Sector Coordinating Council (WSCC) met with the Government Coordinating Council (GCC) May 24-25 in Washington D.C. to discuss security and emergency preparedness issues and projects that may affect the wastewater and drinking water sector.  NACWA’s representatives to the WSCC, Patty Cleveland, Manager of Operations with the Trinity River Authority, Texas, and a NACWA Board member, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, attended the meeting.

The WSCC and GCC discussed the lessons learned from many recent natural disasters, including the earthquake and nuclear emergency in Japan, the Christchurch, New Zealand earthquake, and the tornados in Joplin, Missouri, and other parts of the U.S.  The WSCC and GCC also discussed the upcoming Critical Infrastructure Partnership Advisory Council (CIPAC) Workgroup that will examine the new Risk and Resilience Management of Water and Wastewater Systems standard that has been approved by the American National Standards Institute (ANSI), and determine whether and how the Vulnerability Self Assessment Tool (VSAT), ARAM-W, and SEMS tools should be updated to help utilities comply with this standard.  NACWA is represented on this workgroup by Jorge Monserrate of San Antonio Water Systems in Texas.

The Department of Homeland Security (DHS) briefed the WSCC on programs conducted by DHS to assess and analyze threats to the sector and to help utilities evaluate their security procedures.  One of these programs, the Enhanced Critical Infrastructure Protection Initiative (ECIP), was utilized by several utilities represented on the WSCC and found to be very useful.  DHS has agreed to provide a presentation on the ECIP during the next NACWA Security and Emergency Preparedness Committee meeting, which will be a web-based meeting held this summer.  All NACWA members will be invited to hear this presentation.

Stormwater

NACWA Submits Comments to EPA on Controversial Stormwater Memo, Meets with National Groups on Stormwater Rule

NACWA forwarded comments  May 12 to EPA on the Agency’s November 2010 memorandum regarding numeric limits in stormwater permits, responding to EPA’s request for public comment and encouraging the Agency to withdraw the highly controversial document.  The NACWA letter, submitted jointly with the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA), draws upon a previous letter sent to EPA by the three associations in January expressing significant concerns with the November memo.  The joint municipal comments ask EPA to withdraw the document in its entirety or to reissue the memo with significant revisions after the completion of the current post-construction stormwater rulemaking process.  The comments also request that EPA provide NACWA and its municipal partners with more information regarding some of the assertions made by the Agency in the November memo about existing state stormwater permits with numeric limits.

As a result of pressure from NACWA and others, including the joint municipal letter  sent to EPA in January, the Agency announced  in March that it was opening up a formal comment period on the memo.  NACWA, APWA, and NAFSMA met with key EPA staff in April to further discuss the municipal stormwater community’s concerns with the document.  NACWA is optimistic that EPA will either withdraw the memo or reissue the document with significant revisions after reviewing input from the public comment process.  EPA is accepting comments on the memo until May 16, and any NACWA members with concerns about the document are encouraged to submit their own comments directly to the Agency.

In a related stormwater development, NACWA is meeting today with a number of other national stakeholder groups to discuss EPA’s national stormwater rulemaking process.  The meeting includes NACWA, the Water Environment Federation (WEF), the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), the Natural Resources Defense Council (NRDC), and American Rivers, along with key EPA staff currently working to develop the stormwater rule.  Participants are discussing a number of aspects of the planned rule, including ways to ensure that the rule proposal strikes the right balance between environmental protection and economic feasibility.  NACWA looks forward to continued discussions with key national stakeholders and EPA as the rulemaking process continues.

Water Quality

NACWA Voices Concerns on Recreational Criteria Revisions with EPA

In advance of a June 14-15 stakeholder meeting on EPA’s effort to develop new or revised recreational water quality criteria for coastal recreation areas, NACWA wrote Ephraim King, Director of the Office of Science & Technology in EPA’s Office of Water to share its perspectives on the issue and highlight important considerations for the Agency as it discusses its next steps.  NACWA's May 16 letter  outlined a list of comments and concerns with EPA's recently completed epidemiologic and related studies and the potential revisions the Agency is considering to the existing recreational water quality criteria.  The Association’s top priority is ensuring that EPA’s rationale and methodology for developing new or revised recreational water quality criteria are adequately vetted with the public and that the upcoming stakeholder meeting allow sufficient opportunity for public feedback.  While NACWA plans a more detailed analysis, preliminary review of the EPA studies suggests that no new information has been revealed to indicate that the current criteria used in Clean Water Act (CWA) programs are not protective.  NACWA is, therefore, recommending that EPA make no changes to the current criteria.  NACWA is also recommending that EPA’s new rapid test method, qPCR, is not appropriate for CWA programs and should be limited to notification purposes at high-use beaches.

In December 2010, EPA announced that it had completed the last of the studies required by the Consent Decree and Settlement Agreement developed pursuant to the litigation surrounding the Beaches Environmental Assessment & Coastal Health Act (BEACH Act).  NACWA intervened in that litigation, Natural Resources Defense Council (NRDC) v. EPA, and was actively engaged in the settlement discussions that determined the plan and schedule for conducting the recent studies and completing the Agency’s obligations under the BEACH Act.  Earlier this year, NACWA formed a workgroup to evaluate EPA’s studies, as well as the Agency’s ongoing work to use those studies as the foundation for new or revised recreational water quality criteria for coastal waters.  NACWA staff and members of the workgroup will be participating in the June 14-15 stakeholder meeting and will be closely tracking EPA’s efforts as it works to meet its October 2012 deadline for publishing its final criteria recommendations.  NACWA members interested in this issue are encouraged to participate in the stakeholder meeting.  Details are available on EPA’s website.